- (1.) Through this writ petition, the petitioner has challenged the propriety of a sanction under Section 197, Cr. P. C. whereby his prosecution in case Crime No. 35 of 1997 u/Ss. 302, 217, 218, 201, 120B, 176 and 177 read with Section 34, IPC has been permitted to be taken up. The sanction order is at Annexure 11 to the writ petition and it was issued under the orders of the Governor of Uttar Pradesh by the Pricipal Secretary of Govt. of U. P. in the Home (Police) Section 3 vide No. 1613 P-VI-P-398 dated Lucknow 2/11/1998.
(2.) The sanction order indicates the alleged commission of an offence on the night between the 28th February and 1/03/1997 for which the FIR in case crime No. 35 of 1997 was registered on the information of one Rulia Singh concerning killing of Kuldeep Singh and others by certain persons in police uniform. The sanction order further indicates that investigation had disclosed that the present petitioner had been the Senior Superintendent of Police at Saharanpur and he was one of the police officers who had chased the deceased persons and the gunner of the Senior Superintendent of Police had opened fire and caused the death of Kuldeep and others. The sanction order further indicated that prima facie materials were there to suggest involvement of Harish Chandra Singh and others in the aforesaid offence and after a careful study of the materials, the State Government was satisfied that the present petitioner and others should be prosecuted before a competent Court for the above offences. Accordingly, the Governor, in exercise of his powers under Section 197, Cr. P. C. read with Notification No. 1814/3/VI-538-71 dated 30-1-75, sanctioned the prosecution.
(3.) The petitioner challenged the competence of the Governor to sanction prosecution in the instant case in the light of the proviso to Section 197(1), Cr. P. C. The provisions of Section 197(1), Cr. P. C. along with the proviso is quoted below : "197. Prosecution of Judges and public servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Governor is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government : Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted. (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .";