Wamiq Farooq, 13, was killed in January 2010 after he was hit by a tear gas smoke shell from point-blank range at Rajouri Kadal in Srinagar.

It was only after the intervention of court that the family could register a First Information Report (FIR). Soon after, a SIT was constituted and a judicial enquiry held, arrest warrants were issued against the two cops held responsible by the then CJM Srinagar.

After the case was transferred to learned judge Parvez Hussain Kachroo, second  additional session’s judge Srinagar, he dismissed the revision petition and upheld the decision pronounced by CJM passed on August 22, 2013.

Kashmir Life reproduces the copy of the order pronounced by the additional sessions judge in larger public interest. Advocate Ajaz Ahmad Dar pleaded the case for Wamiq’s family.

        COURT OF SECOND ADDITIONAL SESSIONS JUDGE SRINAGAR

Present:- Parvez Hussain Kachroo

Computer No:-010301063212013

File No.            Date of Institution               Date of decision
21-R/75-R        3.9.2013/18.12.2013           25.2.2014

                            1.    Abdul Khaliq Sofi, Assistant Sub Inspector, J&K Police

      2.    Mohammad Akram, Constable J&K Police
(Petitioners)

Vs

                                          1.    Farooq Ahmad Wani S/o Late Khaliq Wani
R/o Chana Mohalla, Rainawari, Srinagar
(Contesting respondent)

            2.    SHO Police Station Nowhatta

3.    S.S.P Srinagar

                                                                                                      4.    Inspector General of Police, Kashmir Srinagar
(Proforma respondents)

In the matter of:

Revision against the order dated 22.8.2013 passed by Ld. Chief Judicial Magistrate Srinagar in the complaint titled Farooq Ahmad Wani vs. Abdul Khaliq Sofi, Assistant Sub Inspector, J&K Police and ors.

Mr. Mushtaq Ahmad Dar Adv. & Associates for the petitioners Present.

Mr. Aijaz Ahmad Dar Adv. & Associates, for contesting respondent

                                                              O  R D E R             

This criminal revision which impugns the order dated 22.8.2013 passed by ld. Chief Judicial Magistrate, Srinagar in a complaint titled as “Farooq Ahmad Wani vs. Abdul Khaliq Sofi, Assistant Sub Inspector J&K Police and ors” for offence of culpable Homicide not amounting to murder as defined under Section 299 of RPC, punishable under Section 304 (Part 2nd) of RPC,  has been assigned to this court after same was transferred by the Worthy Pr. Sessions Judge, Srinagar for disposal under law from the court of 1st Additional Sessions Judge, Srinagar.

In the memo of revision it has been alleged that a complaint came to be instituted before the court below i.e. court of Ld CJM Srinagar on 27th March, 2010 wherein, it has been alleged by the complainant Farooq Ahmad that on 31st of January, 2010 a tear gas shell was fired by the police party in the head of the victim, namely Wamiq Farooq, at the distance of 30 feet near a Mosque adjacent to Gani Memorial Sports Stadium, Rajouri Kadal, resulting in his death on spot.

It has been  further alleged that the complainant as well as his other relatives approached the Police Stations Rainawari and Nowhatta for registration of case against the delinquent police officials but all in vain. Reluctance and inaction of Police to take any action, forced him to approach the court of Chief Judicial Magistrate Srinagar on 11.2.2010 for registration of FIR against the delinquent police officials who fired the tear gas shell on the head of the deceased, Wamiq Farooq and the court below vide order dated 11th February, 2010, directed the police concerned to submit a detailed report and in response to which the proforma respondent No.3 submitted a detailed report vide communication No. LGL/CL/2010/625 dated 19.2.2010 which has been alleged to be concocted.

It is further alleged in the complaint that actually the matter of  fact is that the deceased Wamiq Farooq along with some other teenage boys/friends was playing carom near the mosque and in the mean time a police Gypsy bearing registration No. JK02P/59132 of Police Station, Nowhatta came in the area and at that relevant time there was not any sort of violence or agitation going on in the area, yet one of the police officials came down from the said vehicle and without any cause, any challenge or justification fired a tear gas shell from a small and short distance of 30 feet from the victim, which hit the head of the victim and thereby, causing his death. The killing of victim was admitted by the government and the delinquent police official identified as ASI has been put under suspension on the ground of misconduct.

The court below after considering the complaint, statements of witnesses  and the police report received in this behalf, ordered for Magisterial enquiry vide order dated 11.5.2010 and the enquiry was initially entrusted to Judge Small Causes, JMIC Srinagar for conducting  enquiry under Section 202 Cr.P.C for ascertaining the truth or falsehood. But as the Ld. Judge Small Causes Court, JMIC Srinagar expressed his inability to conduct the enquiry thereafter by virtue of order dated 31.5.2010 the matter was transferred to the court of Passenger Tax Special Judge, JMIC Srinagar for conducting enquiry and accordingly  enquiry was conducted, concluded and report submitted thereof.

It is further alleged that before all this was done, the court of Ld. CJM ordered IGP Kashmir to constitute a Special Investigating Team (shortly SIT) of at least three officers of known professional competence, integrity headed by the officer of the rank of S.P and accordingly, the SIT was constituted and investigation was conducted by the SIT and the report was accordingly filed. In its report the SIT squarely exonerated the respondents No.1 and 2 from criminal liabilities. After considering the magisterial enquiry as well as the report submitted by the SIT, the impugned order dated 22.8.2013 came to be passed. The impugned order is alleged to be bad in law and devoid of any merit and, as such, is assailed on the following grounds.

1.    That the trial court has directed the investigating team to conduct the investigation in due course of law by virtue of order dated 5.2.2011 in which it was mandated to investigate the matter in accordance with the law and record the statements of the witnesses acquainted with the facts of the case and submit the report. The only option and the mandate left with the trial court was to ascertain as to whether any case has been made out against the accused or not and to examine the material which was collected by the investigating team. In case after considering the report submitted by the investigating agency, if no case was made out, the court was either to dismiss the complaint or direct the investigating agency to make further investigation; and if no such procedure was adopted by the court, then the magistrate had to proceed with the enquiry by himself as envisaged under Section 200 Cr.P.C.  A Magistrate cannot exercise the option of enquiry by a magistrate in a case in which the closure report has been submitted. In the instant case the SIT had filed a closure report so the option available with the court below was to get the matter either further investigated or re-investigated and there was no other option available to the trial court so, as such, the court below has erred in law by directing the magisterial enquiry without assigning any reason thereto. As the trial court has exceeded its jurisdiction by ordering the judicial enquiry so the order passed by the trial court directing the enquiry to be conducted by Judicial Magistrate, First Class, Judge Small Causes and thereafter, assigning the same enquiry to JMIC, Special Judge, Passenger Tax even when the police had filed a closure report, is bad in law. As the trial court has acted not in accordance with the law so the impugned order is liable to be set aside and quashed on this ground alone.

2.    It is further alleged that although the trial court had directed the SIT to submit the report, the direction in essence was made to submit the charge sheet in the form of closure report, so from the face of it the impugned order is full of lacuna and, as such, deserves to be set aside.

3.    That once the complaint was filed before the trial court, the trial court ought to have conducted the enquiry by itself and not assigned the enquiry to any other magistrate. The order passed by the trial court by directing another magistrate to conduct the enquiry is squarely without jurisdiction as the question of sanction for the prosecution would have come into play, because the accused were the police officers against whom the cognizance should not have been taken without seeking sanction from the government. The accused were not on a picnic but they were doing official duties and there act was squarely under the cover of their official duty and the area where they were doing their duties is squarely covered under the Disturbed Area Act for the time being in force. As the petitioners were performing their duties in the area, which is not only disturbed, vulnerable, volatile sensitive and vulnerable to riots etc and the persons who have acted in due course of law to protect themselves and to protect the area from the rioters have been given safeguard as they had been discharging their duties in due course of law, so as such, they could not be prosecuted unless sanction is granted by the competent authority for their prosecution. Since no sanction has been obtained for their prosecution so the order impugned is liable to be set aside.

4.    It is further alleged that as the investigation conducted in the matter reveals no prim facie case against the accused, therefore, the court below should not have directed the enquiry by a judicial magistrate or in the alternative the court below ought to have conducted enquiry by itself. In the instant case no sanction for prosecution has been obtained and as the trial court has refused to accept the closure report so the procedure established by the trial court amounts to sheer abuse of process of law resulting in vexatious proceedings and harassing the petitioners for their due discharge of their duties and if they are penalized and prosecuted for the due discharge of their duties then nobody would be out on streets to control the mob and illegal processions and the state would come to the state  of confusion and chaos.

Advocate Ajaz Ahmad Dar

5.    That the petitioners were directed to control the rioters and accordingly they performed their duties in controlling the riots. Accordingly, a FIR stands registered in this behalf which has been filed by the SIT with the closure report. The petitioners have acted in due discharge of their duties and yet they have been arrayed as accused without there being any evidence against them either collected by the SIT or by the magisterial enquiry. There is nothing on record to suggest that petitioners have ever been subjected to test identification in this behalf. They have been falsely implicated in this case on the basis of mere apprehension and without any substantial evidence on record. The complainant in his complaint has initially stated that only one tear gas shell was shot but subsequently, the complainant has made improvements in his complaint from time to time. He has exaggerated the facts and evidence by saying that many tear gas shells have been fired which shows that the main object of the complainant is to involve the petitioners in a false and frivolous case. The evidence collected by the SIT as well as by the magisterial enquiry, squarely exonerated the petitioners from criminal liability because they are not remotely connected with the commission of the alleged crime, so on this count also the impugned order is liable to be quashed.

It has been accordingly prayed that the order impugned being bad, perverse and contrary to the facts and evidence on record, so the order impugned be set aside and all the proceedings be quashed and also the order taking cognizance by the court below being without jurisdiction, based on no evidence, may be quashed and the complaint be dismissed and closure report submitted by the SIT may be considered.

Heard the arguments submitted by the counsel for the parties. The counsel for the petitioners submitted that the order passed by the trial court dated 22.8.2013 is bad, perverse and non-sustainable in the eyes of law as such, same is required to be set aside, quashed and to be declared a nullity because initially when the alleged occurrence whereby the deceased Wamiq Farooq was alleged to be killed by the tear gas shell, which was allegedly shot by the petitioners a complaint came to be filed by the complainant before the court of learned CJM Srinagar and the said complaint appears to have been forwarded by the Ld. CJM Srinagar to the police concerned under Section 156(3) Cr.P.C for initiation of proceedings as envisaged under law. But thereafter, one more application/complaint  came to be filed on the same grounds and facts and in the said complaint the learned CJM was pleased to pass an order whereby, enquiry was directed to be conducted by the Magistrate under Section 202 Cr.P.C. but before the complaint could have been entertained it was necessary for the complainant to seek the sanction from the Govt. before filing the complaint against the petitioners because the petitioners are police officials and are working in the Police Department so before any cognizance could have been taken against them for initiation of any criminal proceedings sanction as envisaged under Section 197 Cr.P.C was required to be obtained. The petitioners being the public servants, so the court of Ld. CJM was not only debarred from taking cognizance in the matter, but the court was not competent even to entertain the complaint. Before entertaining the complaint, the court was required to see as to whether the sanction required for prosecution of the petitioners was obtained or not and since no such sanction was obtained from the competent authority so the court below was not competent to even entertain the complaint. The court was required to consider the question of sanction not only at the post cognizance stage but also at the pre cognizance stage because the petitioners had acted in the discharge of their official duties.

He further submitted that when the first complaint was filed by the complainant which was referred by the court of Ld. CJM Srinagar to Police concerned under Section 156(3) Cr.P.C, at that time the court was required to enquire as to whether the sanction was obtained or not because the order directing the investigation under Section 156(3) Cr.P.C would also amount to taking cognizance of the offence. At the time the complaint was filed, the Magistrate was required to apply his mind before exercising its jurisdiction under Section 156(3) Cr.P.C or directing investigation under Section 202 Cr.P.C. The learned CJM has neither considered the question of cognizance at the time the matter was referred to police under Section 156(3) Cr.P.C nor when the enquiry was directed to be made by the Magistrate under Section 202 Cr.P.C so the order passed by the Ld. CJM is liable to be declared null and void. To support his arguments he has sought support from the judgment passed by the Hon’ble Supreme Court in case titled Anil Kumar and Ors vs. M.L Ayapa and another passed in Criminal Appeal No. 1590-1591 of 2013 (SLP) Criminal 6652-6653 of 2013, wherein, at para Nos 8, 9, 10, 11and 13 which are extracted and reproduced here under, it has been held that:-

 8. We may first examine whether the Magistrate, while exercising his powers under Section 156(3) Cr.P.C. could act in a mechanical or casual manner and go on with the complaint after getting the report. The scope of the above mentioned provision came up for consideration before this Court in several cases. This Court in Maksud Saiyed case (supra) examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.

9. We will now examine whether the order directing investigation under Section 156(3) Cr.P.C. would amount to taking cognizance of the offence, since a contention was raised that the expression “cognizance” appearing in Section 19(1) of the P.C Act will have to be construed as post-cognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act. The expression “cognizance” which appears in Section 197 Cr.P.C. came up for consideration before a three-Judge Bench of this Court in State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372, and this Court expressed the following view:

                                              “6. ………….and the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, ‘no court shall take cognizance of such offence except with the previous sanction’. Use of the words ‘no’ and ‘shall’ makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black’s Law Dictionary the word ‘cognizance’ means ‘jurisdiction’ or ‘the exercise of jurisdiction’ or ‘power to try and determine causes’. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.

    In State of West Bengal and Another v. Mohd. Khalid and Others (1995) 1 SCC 684, this Court has observed as follows:

                                   “It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.”

10.    The meaning of the said expression was also considered by this Court in Subramanium Swamy case (supra). The judgments referred to herein above clearly indicate that the word “cognizance” has a wider connotation and not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C. obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 Cr.P.C. and the next step to be taken is to follow up under Section 202 Cr.P.C. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage.

11. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore, clothed with all the magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options. He may take cognizance of the offence under Section 190 Cr.P.C. or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) Cr.P.C. The Magistrate, who is empowered under Section 190 to take cognizance, alone, has the power to refer a private complaint for police investigation under Section 156(3) Cr.P.C.

13. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra).

“Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him….. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.”

    He accordingly submitted that as not only the complaint has been entertained but prosecution has been launched without sanction and also cognizance has been taken without sanction so therefore order impugned is liable to be set aside.

      He submitted that the protection given under Section 197 Cr.P.C is to protect the responsible public servants against the possible vexatious criminal proceedings for the offences alleged to have been committed by them while they are acting or purporting to act as the public servants. The policy of legislature is to offer adequate protection to public servant to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without the reasonable cause. Although this protection has limitations and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. Use of the expression “official duty” implies that the act so committed must have been done by the public servant during the course of his service and that it should have been done in discharging of his official duty. The section does not extend its protection to cover every act. But since the petitioners on the day of occurrence were discharging their official duties and dispersing the mob of rioters who had gathered to damage the public property and at the relevant point of time, the petitioners were discharging their official duties in quelling the rioters who were bent upon to threaten the security of the State and damage the public property and if in the process of dispersing the rioters, the teargas shell as alleged was fired by one of the petitioners, the petitioners as such, cannot be held guilty to have committed any illegal act and it cannot be said that the act of dispersing the mob of rioters was not done under the colour of their official duty. There was a reasonable connection between the alleged act and the official duty and as the petitioners were discharging their official duties so before they could be prosecuted and before cognizance would have been taken, the sanction was to be obtained from the competent authority and without obtaining sanction not only the order taking cognizance is illegal so to be set aside but entertaining the complaint is also illegal. To support his arguments he has sought support from 2008 AIR S.C 1937 and 2010(3) S.C Crimes 88.

          He further submitted that there is no restriction on the powers of a private citizens to file a private complaint against the public servant and the court is also not barred from taking cognizance of offence by relying on incriminating material collected by the private citizen, but before the private citizen can file a complaint against the Govt. servant he is required to obtain a sanction for prosecuting the public servant and in case a private citizen  files a complaint against the Govt. servant he has right to seek sanction from the competent authority and the private party who seeks sanction is to be informed of the discharge of the sanction application so as to enable it to avail appropriate remedy if not satisfied with the decision. Before a complaint can be filed by the private person against the Govt. servant he is required to obtain sanction and then only the complaint can be filed by a private person against the Govt. servant and then only the court can entertain the complaint and take the cognizance in the matter against the alleged public servant and once the private complaint has been filed against the Govt. Servant it is necessary for the Magistrate before it takes cognizance under Section 190,1(a) Cr.P.C, to apply his mind before taking cognizance of the complaint. He must not only apply his mind to the contents of the petition, but he must also enquire that required sanction has been obtained and the sanction has been granted for launching the prosecution. Before entertaining the complaint or before sending it for enquiry under Section 202 Cr.P.C the Magistrate is required to apply his mind and if he does not apply his mind but issues the process without satisfying himself, as to whether the sanction has been obtained or not, his order of taking cognizance is liable to be reversed and as in the present case, the court below has not applied its mind but has acted in a mechanical manner without satisfying itself as to whether the sanction has been obtained or not and as there was no sanction, so the complaint could not have been entertained in the first instance as such, is liable to be dismissed. To support his argument he has sought support from (2020)1 S.C (Crimes) 1041.

He further submitted that it is alleged by the petitioners that on the day of occurrence the deceased was playing carom board alongwith other boys and the petitioners appeared on the scene of occurrence and without any provocation they fired a tear gas shell from a very short distance, which caused death of a small boy, aged 11 years. Enquiry was ordered to be conducted by the Ld. CJM through a Magistrate as well as by the Special Investigating Team (SIT) constituted under the orders of the learned CJM. The report filed by the SIT clearly reveals that on the day of occurrence there was rioting going on in and around the place where the occurrence took place and it has been stated by the SIT in its report as there was rioting and severe stone pelting going on so in order to control the rioting the police action was initiated so as to save the  public property and in the process of dispersing the rioters the police action was necessitated and in the discharge of their duties in dispersing the rioters, the petitioners shot a tear gas shell which ultimately caused death of deceased Wamiq Farooq but tear gas shell was fired in the discharge of their official duty.

Since the petitioners were discharging their official duties and were dispersing the rioters and members of unlawful assembly who were bent upon to damage the public property and since the petitioners were discharging their official duties and dispersing the unlawful assembly consisting of rioters so no prosecution could have been launched against them unless and until sanction was obtained under the Provision of Section 132 Cr.P.C.

He further submitted that section 132 Cr.P.C provides that no prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any Criminal Court, except with the sanction of the competent authority and no police officer acting under this Chapter in good faith shall be deemed to have committed any offence. Provisions of Section 128 and 129 Cr.P.C provide that in order to disperse the unlawful assembly, if such assembly cannot be dispersed in accordance with the procedure as envisaged under Section 128, such assembly can be otherwise dispersed if it is necessary for the public security to be dispersed by military force. As the petitioners were discharging their official duties and as the security of the State was under threat so the petitioners were forced to use the force and disperse the members of the unlawful assembly who were bent upon to damage the public property and threaten security of the state. They have acted purely in accordance with the law and their act is covered by the protective umbrella as envisaged under Section 132 Cr.P.C. so before any prosecution could have been launched against them it was necessary that sanction under Section 132 Cr.P.C should have been be obtained. But as no such sanction was obtained; the prosecution which is launched against them is liable to be set aside.

He further submitted that initially when the complaint was lodged before the learned CJM, Srinagar by the complainant, the learned CJM was pleased to forward the same to the police concerned for initiation of necessary proceedings. Thereafter one more complaint came to be lodged by the complaint in which the learned CJM was pleased to direct a magistrate to conduct enquiry under Section 202 Cr. P.C. but once the complaint was lodged before the Ld. CJM and once that complaint was directed to the police for initiation of proceedings under Section 156(3) Cr.P.C then the complaint against which the present revision has been filed could not have been filed, as such, same was not maintainable because the learned CJM had already issued direction for police to take action under sec.156 Cr.P.C.  That complaint was forwarded to the police concerned and the police concerned after taking the cognizance in the matter conducted the investigation which revealed that no offence was committed by the accused. The police report revealed that the petitioners while dispersing the members of unlawful assembly and rioters were forced to use the force whereby one tear gas shell took the life of the deceased. The case registered by the police revealed that no irregularity was committed by the petitioners in firing the tear smoke shell. The case has been registered in the police station concerned in which deceased Wamiq Farooq has been shown as stone pelter along with other stone pelters. He has been declared as a member of the unlawful assembly and has been shown as stone pelter in the said FIR. Once case was registered by the police, the court of Ld. CJM had no competence to direct the enquiry to be conducted under Section 202 Cr.P.C because there cannot be two actions or two proceedings for one event/occurrence. If there was a case whereby a boy was killed, as alleged by the complainant, the investigation was conducted in the matter by the police which found the deceased as a stone pelter and he was labeled as a stone pelter, so there was no requirement for the court below to entertain the second complaint and hold enquiry under Section 202 Cr.P.C. The procedure adopted by the court of learned CJM is not in consonance with the provisions of law so, as such, the direction whereby the enquiry was directed to be conducted under Section 202 Cr.P.C by the Ld. CJM be recalled and, as such, same should be declared non-est in the eyes of law.

He further submitted that after the matter was referred to the Magistrate for magisterial enquiry and the report was filed there was no occasion for the court below to constitute SIT for making  fresh investigation in the matter and if the report was filed by the SIT which had clearly exonerated the petitioners from the commission of offences so the court below was required to accept the report submitted by the SIT and exonerate the accused/petitioners from the offences alleged to have been committed by them and accordingly dismiss the complaint. There was no material before the Magistrate on the basis of which he could have drawn inference that the accused were involved in the commission of the offences. The SIT during the course of investigation examined number of witnesses and the witnesses established before the SIT that rioting was going on and in order to disperse the rioters, the teargas shells were fired, out of which one of the teargas shell hit the deceased and this fact that on the day of occurrence a boy was killed and the rioting was going on is substantiated and corroborated by the fact, that the FIR has been lodged in the matter. The FIR has been lodged in the Police Station Nowhatta under FIR No.12 of year 2010 in which the deceased Wamiq Farooq has been shown one of the accused/stone pelter along with the other accused/stone pelters. The FIR which is registered in the case corroborates the fact that on that particular day when the boy was killed, a unruly mob of  rioters had gathered and in order to disperse the rioters, the police was required to use the force and in the process,  teargas shells were fired and if one of the teargas shell hit the deceased, the petitioners/accused cannot be held guilty of any offence, because what was done by the petitioners was required in the circumstances. The report submitted by the SIT totally and squarely exonerates the petitioners and shifts the criminal liability on the deceased and others who were involved in the anti social activities. The SIT in its report has stated that on the day of occurrence the rioting was going in and around the area and in order to disperse the rioters the police was forced to use the force and police was also forced to shot some tear gas shells and with the result one of such tear gas shell hit the deceased who got killed so accused can not be held guilty for committing any offence much less causing the death of a teen aged boy.

He further submitted that once the complaint was filed before the Ld. CJM and if the Ld. CJM was of the opinion to conduct any enquiry under Section 202 Cr.P.C, he had either to conduct the proceedings by himself or direct any magistrate subordinate to him to make the enquiry or direct the police to investigate the matter. He was not supposed to conduct both the enquiry as well as the investigation. The Section 202 Cr.P.C authorizes a magistrate to conduct either the enquiry or investigation. He cannot order for both, the enquiry as well as the investigation and since the Ld. CJM has directed for the enquiry as well as for the investigation by the police, so by directing both enquiry as well as the investigation the Ld. CJM has transgressed his powers and abused the provisions of Section 202 Cr.P.C, so his action being illegal and unwarranted as such, the order impugned is liable to be set aside and be declared null and void.

    He accordingly submitted that as the order impugned is bad in law and perverse, same be declared null and void and the proceedings initiated by the Ld. CJM on the basis of complaint may be declared null and void and be also set aside and the petitioners may be exonerated from the charges  which have been levelled against them.

     On the other hand counsel for the respondents submitted that once a complaint has been filed before a Magistrate, he has three options: 1) either he may decide that there is no sufficient grounds for proceeding further and drop action or 2) he may take the cognizance of the offence under Section 190(1)b Cr.P.C on the basis of the police report and issue process, this he may do without being bound in any manner by the conclusion arrived at by the police in their report or 3) he may take cognizance of the offence under Section 190 (1) (a) on the basis of original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200 Cr.P.C. If he adopts the 3rd alternative, he may hold or direct an enquiry under Section 202 Cr.P.C if he thinks fit and thereafter he may dismiss the complaint or issue the process as the case may be. So far as the facts of the present case are concerned, when the complaint was filed by the complainant before the court of Ld. CJM, the said complaint was forwarded by the Ld. CJM to the police concerned for initiation of proceedings as contemplated under section 156(3) Cr.P.C. but no action was taken by the police concerned. Instead of taking any action the police tried to shield the erring police officials and as the police was bent upon to protect the  erring  police officials and took no action in the matter but arrayed deceased as accused as a rioter so the complainant was left with no other option/choice but to lodged fresh complaint( present complaint) before the court of Ld. CJM and the Ld. CJM having three options available, opted to exercise the 3rd option and accordingly directed an enquiry to be conducted by a magistrate subordinate to him and also by special investigating team SIT, thereafter, on the basis of the report filed by the Magistrate and SIT, based on the enquiry conducted by them the processes has been issued against the petitioners so as such, no illegality has been committed by the Ld. CJM. In support of his arguments he has sought support from AIR 1980 SC 1883 wherein, it has been held that the Magistrate directing the investigation under Section 156(3) Cr.P.C, the police report states that no case has been made out, still the Magistrate can take cognizance and issue process.

 He submitted that it is an admitted position of law that section 197 Cr.P.C provides protection to the Govt. servants for prosecution without obtaining sanction from the competent authority, but this protection is meant for only those public officers who discharge their duties with responsibility but this protection cannot be extended to the Govt. officials who act irresponsibly. The protection given under Section 197 Cr.P.C is to protect the responsible public servants against possible vexatious criminal proceedings for offences alleged to have been committed by them while acting or purporting to act as public servants. This protection available to the Govt. servant cannot however be claimed as cloak for doing any objectionable act in the garb of official duty. There may be cases where while doing the official duty, the public servant, may exceed his duty which may fall within the definition of an offence, such excess, will not, as such, be sufficient ground to deprive the public servant from the protection provided by Section 197 of the Code of Criminal Procedure. At the same time if the act   complained of, had nothing to do with the official duty, but was done while on duty and was an act falling within the definition of offence, the public servant would not be entitled to the protection under Section 197 Cr.P.C. The act falling within the definition of offence connected directly and reasonably with his official duty, will certainly require sanction for prosecution of the Govt. servant, but the protective umbrella of Section 197 of the Code of Criminal Procedure will not cover every act or omission of the public servant in service. Since the report of the enquiry reveals that on the day of occurrence one small boy was killed by firing of tear smoke shell, the deceased was not involved in any anti social activities or rioting, but was playing carom board and the petitioners without any provocation fired a tear smoke shell whereby the deceased was killed so the act of the petitioners in killing the boy does not come within the purview of their official duty and the act of the killing the boy has no nexus with their official duty. The act committed by the petitioners as such, is not covered by Section 197 Cr.P.C so, as such, the protective umbrella of Section 197 Cr.P.C cannot be extended to cover the illegal omissions committed by the petitioners. To support his arguments he has sought support from 2007(2) JKJ 41 High Court of J&K, 1995 Crl. L.J 2964, Punjab and Haryana and 1997 Crl. L.J 2958 Punjab and Haryana wherein, it has been held that the protection available to the public servants under Section 197 Cr.P.C cannot be claimed as a cloak for doing any objectionable act in the garb of their official duty.

He further submitted that the act of the petitioners in firing tear smoke shell on a small eleven years old boy who was not involved in any rioting but was playing a game of carom, cannot be remotely connected with their official duty; therefore, no sanction is required  for prosecuting such erring public servants and as in the present case the petitioners have fired tear smoke shell on the boy who was not involved in any rioting and firing a smoke shell without any provocation does not come within the purview of their official duty, so no sanction is required for prosecuting such erring public servants. To support his arguments he has sought support from 1995 Cr.L.J 2964 Punjab and Haryana High Court wherein, it has been held that the act of firing at 3rd person by a public servant cannot remotely be connected with his official duty, therefore, sanction for the prosecution is not necessary.

He vehemently submitted that one of the petitioners is an ASI whereas the other petitioner is a constable and they can be removed from the services by the Superintendent of Police and also by the DIG of Police and not by the Govt, so therefore, they are not entitled to protection under Section 197 Cr.P.C. Their appointing authority being DIG as well as the S.P, so as such, the protective umbrella as envisaged under Section 197 Cr.P.C cannot be extended to them because their services are not governed by Article 113 of the Constitution, which provides for dismissal, reversal or reduction in rank of persons employed in civil posts in the Union or State Govt. by the Govt. only. It provides that no person who is a member of the civil services of a State or holds a civil post shall not be dismissed or removed by any authority subordinate to that by which he was appointed, as the petitioners are not removable from their offices either by the Govt. or with the sanction of the Govt. and it is the Superintendent of Police or DIG of Police who are their appointing authorities and consequently are competent authority to remove them from their services, as such the petitioners are not entitled to protection under Section 197 Cr.P.C. Since both the petitioners can be removed from their services by the DIG or by the Superintendent of Police so no sanction for their prosecution or removal from Govt. is required to be obtained. As provisions of Sec 197 Cr.P.C are not available to them so they can be prosecuted or removed from their services without the sanction of the Govt. To support his arguments he has sought support from 2002 Crl. L.J 3715, KLJ 1992 J&K 220, 2003 (Cr.L.J) 2949 Punjab and Haryana, 2002 Crl. L.J 3715 Delhi wherein, it has been held that the Sub Inspector and Assistant Sub Inspector are not entitled to protection under Section 197 Cr.P.C because competent authority to remove them from their services is not the Govt., but their appointing authority is Superintendent of Police etc. He accordingly submitted that as the protection as envisaged under Section 197 Cr.P.C cannot be extended to the petitioners, so they cannot claim protection under Section 197 Cr.P.C as such, the order passed by the Ld. CJM in taking cognizance and issuing the process against them without obtaining sanction is not bad in law as such, cannot be challenged or reversed.

 He further submitted that the contention raised by the petitioners that no prosecution can be launched against the petitioners unless sanction is obtained from the Govt. or competent authority under Section 132 Cr.P.C is not sustainable because the illegal act  done by the petitioners does not come within the purview of their official duty and as no rioting was going on, on the date when the small boy was killed, but the petitioners without any justification and provocation fired a tear smoke shell whereby, the boy got killed so, their illegal act is not covered by the protection which has been given under Section 132 of the Code of Criminal Procedure. The protection under Section 132 Cr.P.C can be availed by only such police personnel who is a member of Boarder Security Forces, Central Reserve Police Force or Para Military Force, but as the petitioners are not the members of such forces so they cannot claim such protection. Further more in order to disperse the members of the unlawful assembly the minimum force is required to be used and in case it is felt that the members of the unlawful assembly cannot be otherwise dispersed and if it is necessary for the security reasons that it should be dispersed by using force but before any force can be used, the permission has to be obtained from the Executive Magistrate for using the force to disperse such unlawful assembly and in case the force is required to disperse the unlawful assembly, the permission is to be obtained from the Executive Magistrate who may only direct for the arresting and confining the members of such unlawful assembly, but in no case the fire arms are required to be used to disperse such unlawful assembly. In case the members of the unlawful assembly cannot be dispersed by using the force as envisaged under Sections 128 and 130 Cr.P.C and it is necessary that the force is required to disperse such unlawful assembly then permission is to be obtained from the Magistrate and also from the Govt. But in the present case as there was no rioting going on, the deceased was not involved in any anti social activities and was not the member of any unlawful assembly, so there was no occasion for the petitioners to use the force and fire tear smoke shell and as they have not obtained permission either from the Govt. or from the Magistrate for using the force and for firing the tear smoke shell so their illegal act  is not covered by the protective umbrella given under Section 132 Cr.P.C, as such, the petitioners cannot claim that they are entitled to the protection given under Section 132 Cr.P.C and no prosecution can be launched against them without the permission of the competent authority.

He further submitted that after the magisterial enquiry was ordered to be conducted by the Ld. CJM, the report was filed but as the report filed by the magistrate required some technical as well as scientific clarifications so in order to clear those technical and scientific matters, the learned CJM directed the SIT to be constituted and directed to file the report. The order passed by the Ld. CJM whereby, the SIT was constituted was challenged by the petitioners not only before the court of Hon’ble Sessions Judge Srinagar but same was challenged before the Hon’ble High Court and even before the Hon’ble Supreme Court but all the Hon’ble courts were  pleased to up-hold the order passed by the Ld. CJM so the order passed by the Ld. CJM being up-held by the Hon’ble High Court  and also by the Apex Court has attained finality, so order whereby SIT was constituted  cannot be challenged  before this court. As the order passed by the Ld. CJM Srinagar whereby, the SIT was constituted has been up-held by the Hon’ble High Court so it cannot lie in the mouth of the petitioners to allege that order passed by the Ld. CJMs where SIT was constituted and directed to investigate into the matter, is bad in law and as such, is liable to be set aside. The SIT was directed by the Ld. CJM to hold an enquiry vis-a-vis some technical as well as scientific matters and the SIT after conducting the investigation and examining the witnesses submitted the report accordingly. During the course of investigation not only the magistrate but the SIT examined number of witnesses and all the witnesses who have been examined by the magistrate as well as by the SIT have stated in clear and unequivocal terms that on the day when the boy was killed there was no case of stone pelting or rioting, the deceased was playing Carom board and the accused/petitioners came in a white Gypsy and fired tear smoke shell without any provocation whereby the deceased was hit by the said shell and ultimately got killed. This fact, that the teargas smoke shell was fired by one of the petitioners, has been admitted by the petitioner himself in his statement recorded before the magistrate. He has stated that on 31.1.2010 he along with other police officials were discharging their duties and during the course of discharging their duties a fire smoke shell was fired by him on the directions of his superior to disperse the mob. This fact that the accused/petitioners have acted illegally finds support from the fact that petitioners have been suspended from their services by the concerned SSP on the ground that they have committed misconduct and by suspending both the erring petitioners, this fact is proved and established that the petitioners have acted illegally and their act of firing smoke shell was not done in the discharge of their official duties. He accordingly submitted that as the learned CJM after evaluating the material before him found the petitioners to have acted illegally and without legal justification fired on a small boy so their act not being covered by the protection given under Section 197 Cr.P.C or Section 132 Cr.P.C. learned CJM has rightly observed that the petitioners have acted illegally without any justification so the Ld. CJM has rightly taken the cognizance against them and issued the process against them.

 He lastly submitted that revision filed by the petitioners is not maintainable and the provisions of Section 435 Cr.P.C cannot be pressed into service because the order passed by the Ld. CJM and the order which is impugned by the petitioners is an interlocutory order in nature and not the final order so the revision petition filed on this count is liable to be dismissed. The order which has been passed by the Ld. CJM is only interlocutory in nature and as such, the revision will not lie against the impugned order. In order to support his arguments he sought support from 2001 (7) S.C.C 401 wherein, it has been held that the powers of revision shall not be exercised in the relation to an interlocutory order. He accordingly submitted that the revision petition is not maintainable, be dismissed and the order passed by the Ld. CJM be up held.

Considered the arguments submitted by the counsel for the parties and perused the record on the file. Before adverting upon the arguments submitted by the counsel for the parties, it is imperative to give a brief resume of the facts which have culminated into the filing of the present revision. The facts are as under:

    The complaint came to be filed in the  Court of ld.CJM on 15-02-2010 by the father of one Wamiq Farooq, alleging therein that on 31-01-2010 his son, who was a student of seventh standard, had left for Gani Memorial Stadium for playing the game of cricket. Boys found the ground wet as such they preferred to play the game of Carom. During this period at about 4:30 PM, suddenly a police party appeared on the scene, and passed by. One of the police personnel came down the vehicle and fired tear smoke shell from a distance of about 30 feet directly on the head of his son Wamiq Farooq. The tear smoke shell hit the posterior part of the head of his son, resulting into his son felling on the ground. People around took him to hospital at SKIMS but his son had expired by the time he could be shifted to hospital. The persons who witnessed the occurrence had told the complainant that they had seen the police personnel firing tear smoke shell after getting down from the police vehicle.  The matter was reported to the police, who refused to take cognizance into the matter. He was told by the police concerned that the matter was already under their consideration and they were looking into the matter appropriately. Since the matter relating to the death of his son was not being properly investigated, it made him to approach the Court below for initiating action against the culprits and desiring the Court to direct the police concerned to take action against accused for commission of offence under section 302 RPC.

    On receiving complaint on 15-02-2010, the Court below forwarded it to Senior Superintendent of Police, Srinagar for necessary action in accordance with law. The report was submitted by Senior Superintendent of Police, Srinagar on 20-02-2010, which informed Court below that the matter pertaining to the occurrence was already under investigation of the police as case FIR No.12/2010 for offences under sections 307, 148, 149, 336, 353 RPC has been lodged at Police Station, Nowhatta. The facts unravelled in FIR suggested that some miscreants had pelted stones at the police party deployed for law and order duties and because of the heavy stone pelting and that the miscreants had tried to set ablaze the police vehicle bearing registration number JK02P-6912, the police party had to resort to tear smoke shelling. Later on it was found that one person named Wamiq Farooq had received injuries and later on had succumbed to injuries at SKIMS.

This report submitted by Senior Superintendent of Police, Srinagar was under consideration of Court below when exactly similar matter was brought for the consideration of Court below on 27-03-2010 as “composite application and complaint”.  This time court below opted to treat the complaint in terms of section 190 Cr.P.C. Statements of complainant and two of his witnesses were recorded on oath on 30-03-2010. Subsequently, Court below passed an order on 11-05-2010 ordering postponement of process against the accused and directing a detailed enquiry in terms of section 202 Cr.P.C by the Judicial Magistrate. Enquiry was directed to be conducted by learned Special Judicial Magistrate (Passenger Tax & Electricity) Srinagar. The report along with the record of enquiry was submitted by the learned Judicial Magistrate on 26-11-2010. There after Court below, however, passed another order on 05-02-2011 directing the Inspector General of Police, Kashmir to constitute a Special Investigation Team (SIT) comprising of at least three Officers of known professional competence and integrity headed by an Officer of the rank of Superintendent of Police, to investigate into the matter as to 5 aspects stated in the order. The order came to be challenged in the Revision Petition before learned Sessions Judge, Srinagar. Learned Session judge was pleased to uphold the order of ld. CJM. Though both orders were challenged before the Hon’ble High Court but the Hon’ble High Court upheld the orders of the ld.CJM and that of the Court of learned Sessions Judge, Srinagar. Matter was further taken to the Hon’ble Supreme Court of India in Special Leave Petition. The Hon’ble Supreme Court in its order dated 19-03-2012 entertained the petition for the limited aspect pertaining to the direction of learned Sessions Judge; Srinagar directing registration of fresh FIR, said direction was stayed in the order of Hon’ble Supreme Court.

    The magistrate after conducting the enquiry submitted report based on the statements of witnesses recorded, wherein, he observed that the situation in the area on day of occurrence was normal and everybody was involved in the daily activities as a shopkeeper situated near the place of occurrence was also open. At 4 to 5 PM a white gypsy from police station Nowhatta came on spot carrying some police personnel on the link road near Gani Memorial Stadium. One of the police personnel without any provocation fired a tear smoke shell at the range of thirty feet on the Wamiq Farooq who was walking on the link road after playing Carom with other boys. Some of the witnesses stated that the shell was fired by Abdul Khaliq Sofi who belongs to police station Nowhatta having his name     plate on his uniform. In the statements of witnesses recorded by the Judicial Magistrate, witnesses brought the circumstances that there was no stone pelting, it was calm prevailing around, Wamiq Farooq was returning with other boys after playing Carom, a police Gypsy carrying Police Personnel came all of sudden, one person alighted down the vehicle and fired a tear smoke shell, causing head injury to Wamiq Farooq.

This evidence recorded by Judicial Magistrate was further probed after direction by ld. CJM whereby, by virtue of the order dated 05-02-2011, the court directed the investigation to be conducted by the SIT for investigating the following aspects:

1.    To examine the witnesses/persons claiming to have witnessed the incident with respect to points of firing of tear smoke shell and that of it’s hitting the victim, individually as well as collectively.
2.    To draw the possible route (whether straight or parabolic) of the shell after being launched in with the aid of ballistic expert.
3.    To study the actual range and by drying grass of the possible projectiles of the shell by testifying the same and also see the possibility of injury as seen on the deceased with the help of Doctor.
4.    To arrest and interrogate the accused person(s), if necessary.
5.    To investigate any other respect which is otherwise expedient to do in the interest of justice and fair play?

           The SIT was constituted under the orders of the Inspector General of Police, Kashmir Zone, Srinagar; SIT conducted the investigation and submitted a detailed report. The SIT recorded the statements of civilian witnesses and the Police personnel as well.  That apart the SIT conducted the exercise of test firing of tear smoke shells with the help of Ballistics Expert from Forensic Science Laboratory, obtained the medical opinion from the Doctors pertaining to the death of Wamiq Farooq (as reported In the Post-mortem Report), analyzed the ground situation, prepared the site map and also noticed the surrounding circumstances pertaining to the occurrence. The SIT gave its conclusion in paragraph (K) as under:

    “From all the relevant facts in statements of witnesses it can be concluded that on the day of incident there was  stone pelting going on in the area and police party entered the area surrounding Gani Memorial Stadium to control the situation. The gypsy in which Nafri was boarded was stopped near Masjid and the police party disembarked in order to chase the stone pelters and fired tears smoke shell. At the same time, the death of the boy named Wamiq Farooq was reported which may have been due to fall from the surrounding wall of Gani Stadium or the death could have been caused by tear smoke shell itself. However the police action has been done in due course and as per the situation on the ground without prejudice or ill will.”

    Number of witnesses in their statements indicted ASI Abdul Khaliq Sofi to be the person responsible for firing of tear smoke shell with his Tear Gun. The witnesses pointed out that Tear Gun was aimed at the boy who had received injury from the tear smoke shell so fired. Another account given by police personnel pointed out to firing of tear smoke shell by SPO Mohammad Akram with his Tear Gun. Although the evidence does not conclusively determine as to who had actually fired the tear smoke shell, nonetheless the said two persons were suspected of firing of tear smoke shell, and  strong circumstances existed to suggest that one of them had fired tear smoke shell.

    After considering the report submitted by Magistrate and also by SIT the Ld. CJM observed that the test firing of tear smoke shells, coupled with the statements of eyewitnesses as recorded by the SIT, does not rule out the possibility of the tear smoke shell to have been recklessly fired by the said two persons, aiming at the persons running helter-skelter after pelting stones. Even the evidence collected by the SIT indicates that the stone pelters were chased by the police party and tear smoke shell was fired to disperse them.

    The ld. CJM concluded with the observation that the circumstances as available in the record of investigation conducted by the SIT, do indicate that this was an episode of reckless firing of tear smoke shell by the police personnel, while they had tried to disperse the stone pelters. The person of ordinary prudence, the police personnel using the Tear Gun also being so, are in normal course expected to know the consequences of reckless firing of tear smoke shells on the mob. This has the potential of causing such injuries which in the ordinary course would be sufficient to cause death of a person who is hit by such tear smoke shells.

     Therefore, from the apparent perusal of evidence collected by the Judicial Magistrate in enquiry under section 202 Cr.P.C and the evidence collected by the SIT, such circumstances were spelled out  which prima facie indicated to availability of evidence which pointed out to the culpability of ASI Abdul Khaliq Sofi and SPO Mohammad Akram. As court of ld. CJM observed that there was sufficient ground to proceed against said two persons namely ASI Abdul Khaliq and SPO Mohammad Akram, as the circumstances collectively pointed out to strong probability of commission of offence by them so     Accordingly, ld. CJM took the cognizance in the complaint and process was directed to be issued against the said two accused requiring them to attend the Court.
After the ld.CJM took the cognizance in the matter and issued the process against the petitioners, the petitioners challenged the order of CJM by way of the present revision petition.

After hearing the rival contentions of the counsel for the parties and after considering the facts and circumstances involved in the case five questions/issues crop up for consideration which require critical analysis so as to come to the conclusion as to whether the impugned order has been passed rightly or wrongly and therefore, would stand the challenge the test of present revision or collapse. The questions/issues which crop up for consideration can be formulated and summarized as under:

i)  Whether the order passed by the Ld. CJM is an interlocutory      order in nature and as such the revision will not lie.
ii)  Whether the sanction as envisaged under Section 132 Cr.P.C for launching of the prosecution was necessary or not;
iii)   Whether learned CJM has fallen in error in entertaining the     complaint after the first complaint was forwarded to police     under Section 156(3) Cr.P.C;
iv )    Whether the Ld. CJM should not have taken the
cognizance in the matter without sanction as envisaged       under Section 197 Cr.P.C;
v)    Whether there was no material available before the Ld. CJM     on the basis of which he could have taken the cognizance     and could have issues the process against the petitioners.

In so far as the 1st question relating to the fact, as to whether the impugned order is interlocutory in nature or not, it has been submitted by the counsel for the respondent/complainant that the order of Ld. CJM  in issuing  process and taking cognizance is an interlocutory in nature as such, the revision is not maintainable, whereas on the other hand, it has been contended by the petitioners the order of Ld. CJM in issuing the process against the petitioners and taking the cognizance is not interlocutory in nature as such, the revision is maintainable.

In case where question arises as to whether an order is interlocutory in nature or not as such revision will lie or not the  safe test is that if the contention of the petitioner who moves the superior Court in revision, as against the order under challenge, is upheld, would the criminal proceedings as a whole culminate? If they would, then the order is not an interlocutory order in spite of the fact that it was passed during any interlocutory stage. In the present case, if the contention of the present petitioners in respect of the order taking cognizance and issuing process is upheld the proceedings in this instant case would come to an end, then the order issuing process cannot be said to be an interlocutory order even though it may have been passed at an interlocutory stage.

In order to support my contention I have laid my hands on the judgment cited as Bhaskar Industries Ltd. v Bhiwani Denim & Apparels Ltd. reported in (2002) Mh.L.J 81, wherein, reference has been made to various judgments passed by the Hon’ble Supreme Court  in a number of case, the relevant Paras  i.e.  Para Nos. 11, 12, 13, 14, 15, 16, 17, 19, 21, 22, 23 and 24.  For resolving the controversy with regard to the question regarding maintainability of this instant revision petition are extracted and reproduced here under

11. In the case of Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Anr. reported in 2002 (1) Mh.L.J. 81, in relation to the powers of revision, the Supreme Court has observed that the interdict contained in Section 397(2) of the Code of Criminal Procedure is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at an interlocutory stage. The Supreme Court laid down that the safe test is that if the contention of the petitioner who moves the superior Court in revision, as against the order under challenge, is upheld, would the criminal proceedings as a whole culminate? If they would, then the order is not an interlocutory order in spite of the fact that it was passed during any interlocutory stage. In the present case, if the contention of the present applicants in respect of the order issuing process is upheld the proceedings in the said case would come to an end, hence, in the light of the above decision, the order issuing process cannot be said to be an interlocutory order even though it may have been passed at an interlocutory stage.

12. Useful reference may also be made to the decision of the Supreme Court in the case of K.K. Patel and Anr. v. State of Gujarat and Anr. . In the said case, a private complaint was filed against the appellants before the Court of Metropolitan Magistrate. The learned Magistrate issued process against the appellants. The appellants filed an application for discharge. The objection which was raised before the learned Magistrate was that no sanction was obtained to prosecute the accused. The said application came to be dismissed. Thereafter, the appellants filed revision before the Sessions Court wherein two grounds were raised, the first was that no sanction was obtained to prosecute the accused persons and the second objection was that no complaint could be filed after one year from the date of the act complained of. The learned Sessions Judge upheld the objections of the appellants i.e. accused persons and the process issued by the trial Court was quashed by the Sessions Court. The said order was challenged before the High Court and the High Court set aside the judgment of the Sessions Court mainly on the ground that the Sessions Court should not have entertained the revision at all as the order challenged before it was only an interlocutory order. The Supreme Court has held in para No. 10 that the appellants were not stopped from canvassing on that additional ground also before the Sessions Court in revision as they were challenging therein the very order of issuance of process against them.

In para 11 the Supreme Court held that the view of the learned Single Judge of the High Court that no revision was maintainable on account of the bar contained in Section 397(2) of the Code, is clearly erroneous.

It is further observed that in deciding whether an order challenged is interlocutory or not, the sole test is not whether such order was passed during the interim stage but the feasible test is whether by upholding the objection raised by a party, it would result in culminating the proceedings. It is further observed in the said para that: “In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.”

13. In the case of Amarnath Vs State of Haryana and Anr., it has been held that the order of Magistrate issuing summons to the accused is not an interlocutory order. In respect of the Magistrate issuing process, the Supreme Court in para 10 has observed thus:

“So long as the Judicial Magistrate had not passed this order, no proceedings were started against the appellants, nor were any such proceedings pending against them. It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced, or that any right of theirs was not involved by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightaway was merely an interlocutory order which could not be revised.”

14. The question as to what is an interlocutory order came up for consideration before the Supreme Court in the case of Madhu Limaye v. State of Maharashtra . In the said case, the complaint was filed before the Court of Sessions. Cognizance of the offence was taken by the Court of Sessions. Being aggrieved thereby, the appellants preferred a revision before the High Court. The High Court rejected that said revision application on the sole ground that it was not maintainable in view of the provisions contained in Sub-section (2) of Section 397 of the Code of Criminal Procedure. In the case of Madhu Limaye the decision in the case of Amarnath (supra), was considered and the three-Judge Bench of the Apex Court in the case of Madhu Limaye in para 7 has re-affirmed the decision in the case of Amarnath on the point that the impugned order of the Magistrate was not an interlocutory order. Hence, the order of the High Court was set aside and the matter was remitted back for disposal on merits.

15. In the case of Madhu Limaye, the Supreme Court considered the very issue whether the revision against the order taking cognizance or issuing process or framing charge was maintainable. The Supreme Court observed that a bar has been put in the way of the High Court (as also of the Sessions Court) for exercise of the revisional power in relation to any interlocutory order. It is further observed in Para 10 that the order of the Court taking cognizance or issuing process is not an interlocutory order.

16. At this stage, the learned counsel for the applicants cited two more decisions in respect of his contention that the order of the Magistrate issuing process is an interlocutory order and hence, revision in respect of the same would not be maintainable. The said decisions are in the case of Poonam Chand Jain and Anr. v. Fazru and the decision of the Federal Court in the case of S. Kuppuswami v. The King. As far as the case of Poonam Chand is concerned, the main question which arose for consideration was whether a second complaint could be filed. After holding that a second complaint could be filed in exceptional circumstances in Paras 9, 10 and 11 the decisions in the case of Adalat Prasad and Subramanium Sethuraman have been discussed. In these paras the powers of the “Magistrate” in respect of reviewing his own order issuing process have been discussed and not the powers of the Sessions Court to entertain a revision against the order of the Magistrate issuing process. It is true that the words “interlocutory order” has been used but applying the principles in the case of Commissioner of Income Tax v. Sun Engineering Works referred to in para 9 above, it cannot be said that paras 9 to 11 of the judgment in the case of Poonamchand lay down the ratio that a revision against an order issuing process is not maintainable.

17. Thereafter, in Para 12 of the decision in the case of Poonamchand, various decisions of the Supreme Court have been referred to on the point whether the order issuing process is an interlocutory order and hence a revision against the same was maintainable or not before the Sessions Court. Reference has been made to Rajendra Kumar Sitaram Pande v. Uttam and Anr. and K.K. Patel and Anr. (Supra) wherein it is held that such an order is not interlocutory and hence a revision in respect of the same is maintainable. It is pertinent to note that nowhere in the case of Poonamchand has it been observed that the law laid down in these two decisions is erroneous or incorrect or requires reconsideration.

19. It may be stated here that from the observations of the Apex Court in paras 10 and 13 in the case of Madhu Limaye, it is clear that the revisional power was being considered in respect of the High Court as well as the Sessions Court. Thus, from the decision in the case of Madhu Limaye, it is clear that an order issuing process is not an interlocutory order and hence, revision would be maintainable against the same. As far as the case of Poonamchand is concerned, the learned counsel for the applicants was unable to point out any para or sentence therein, wherein it has been specifically held or observed that no revision is maintainable in respect of an order of the Magistrate issuing process. On the other hand in the case of Madhu Limaye it has been held that such an order is not an interlocutory order and revision in respect of the same would be maintainable. In any event, the decision in the case of Madhu Limaye having been rendered by a larger Bench than the one in the case of Poonamchand, the said decision would obviously prevail.

21. Going Back to the issue as to whether an order is an interlocutory order or not, in a majority decision by a Bench of five Judges of the Supreme Court in the case of Mohan Lal Magan Led Thacker v. State of Gujarat , four tests were culled out in respect of whether a judgment or order can be said to be final or interlocutory. One of the tests is that “if the order in question is reversed would the action have to go on?” If due to the order being reversed, the action does not go on it would be an interlocutory order. The Apex Court in the case of Madhu Limaye has observed that applying the test in the case of Mohan Lal to the facts of the instant case, it would be noticed that if the plea of the appellant succeeds and the order of the Sessions Judge is reversed, the criminal proceeding as initiated and instituted against them cannot go on. Thus, an order issuing process would not be ‘an interlocutory order. After considering the decision in the case of Kuppuswami, Their Lordships in the case of Madhu Limaye have referred to the earlier decision of the Constitution Bench of the Supreme Court in the case of Ramesh and Anr. v. Seth Gendalal M. Patni and Ors., AIR 1996 SC 1445 wherein in relation to what is the final order, it is observed as under:

“The finality of that order was not to be judged by co-relating that order with the controversy in the complaint, viz. whether the appellant had committed the offence charged against him therein. The fact that that controversy still remained alive is irrelevant.”
22. As observed earlier, after considering the case of Kuppuswami and various other decisions of the Supreme Court, it has been held in the case of Madhu Limaye that an order issuing process or summons is not an interlocutory order.

23. In addition to the decisions discussed above, useful reference may also be made to the case of Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr. The main question before the Supreme Court was whether the order of Magistrate directing the issuance of process is an interlocutory order or not. The said question was directly in issue in the said case. The said issue was decided giving detailed reasons. The Supreme Court held after giving detailed reasoning that the order of Magistrate directing issuance of process is not an interlocutory order and the revisional jurisdiction under Section 397 could be exercised against the same. In view of the above observations, it is clear that an aggrieved person, against whom process has been issued, can prefer a revision against the order of the Magistrate issuing process. Thus, it is clear that the applicants have an efficacious remedy of preferring a revision against the order of the Magistrate issuing process.

24. From various decisions of the Supreme Court discussed above it is quite clear that an order issuing process is not an interlocutory order and hence a revision can be preferred against such an order. In these decisions, the said issue was specifically considered and the said issue was decided giving detailed reasoning. Thus, it is clear that there is a specific provision in the Code in Section 397 for redressal of the grievance of the accused against which process has been issued.

    In the authorities cited supra, it has been held by the Hon’ble Supreme Court that the order of Magistrate taking cognizance or issuing process is not an interlocutory order, as such, the revision is maintainable. So in view of the law laid down by the Supreme Court in the number of cases cited hereinabove, it is manifestly clear that the order whereby the Magistrate takes cognizance and issues process is not  interlocutory order in nature as such, the revision is maintainable. So in view of the observations and the law laid down by Hon’ble S.C. the plea raised by the counsel for the respondent/complainant that present revision is not maintainable is not sustainable so as such, his plea is rejected.

    In so far as the 2nd question which relates to the sanction under Section 132 Cr.P.C required for launching the prosecution against the petitioner is concerned, it has been contended by the counsel for the petitioners that since the petitioner were discharging their duties and were dispersing the rioters who had assembled to threaten the security of the State and damage the public property so sanction was required before launching prosecution against them.

    It has been contended by the counsel for the respondent that on the fateful day when the small boy was killed there was no rioting going on and the deceased was playing carom board along with other boys but the petitioners suddenly appeared on the scene and without any provocation fired a teargas smoke shell whereby, the small boy got ultimately killed.

    As far as the provisions of Sections 127 to 132, which fall under the Chapter-IX are concerned, the section 127 relates to the powers of Magistrate to command police to disperse the members of unlawful assembly who are likely to cause disturbance to the public peace and  section 128 pertains to the use of force to disperse the unlawful assembly, which provides that if any unlawful assembly upon being so commanded, does not disperse, and conducts itself in such a manner as to show a determination not to disperse, the  executive  magistrate or the officer-in-charge of police station may proceed ahead to disperse such unlawful assembly by force and if necessary for dispersing such assembly may arrest or confine the persons who are  found part of the unlawful assembly.

    Section 129 deals with the use of military force and it provides that if any assembly cannot be otherwise, dispersed, and if it is necessary for the public security that it should be dispersed, the executive magistrate may cause it to be dispersed by military force provided that the sanction of the Govt. shall be obtained within the reasonable time for that purpose when practicable.

    Section 130 deals with the duty of officer commanding troops required by Magistrate to disperse assembly. It provides that when the Executive Magistrate determines to disperse any such assembly by military force, he may require any commissioned or non-commissioned officer in command of any soldiers in the army to disperse such assembly by military force and to arrest and confine such person forming part of it. It further provides that every such officer shall obey such requisition in such a manner as he thinks fit.

        Section 131 deals with the power of commissioned military officer to disperse assembly and it provides that when the public security is manifestly endangered by any such assembly, and when no executive magistrate can be communicated with, any commissioned officer of the army may disperse such assembly by military force and may arrest and confine any persons forming part of it.

    Then Sec. 132 deals with the protection against prosecution for act done under this Chapter (IX) it further provides that no prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any Criminal Court, except with the sanction of the Govt.

    As far as the provisions of Chapter IX are concerned, the   conjoint reading provides that any unlawful assembly can be dispersed by using the force to the extent of arresting and confining the persons who form part of such unlawful assembly. It further provides that in order to disperse the unlawful assembly the orders are necessarily to be given by the executive magistrate or by the Officer-in-charge of the Police Station concerned. But in so far as the facts of the present case are concerned the allegation against the petitioners is that while the deceased along with other boys was playing Carom board, there was no rioting going on and the deceased was not the member of any unlawful assembly, the petitioners appeared on the scene and fired teargas smoke shell without any provocation and without any legal justification with the result the deceased was killed. Though it has been contended by the petitioners that the petitioners were discharging their official duties and dispersing the mob of rioters who had endangered  the public property and caused threat  to the security of the State, but the petitioners have failed to show or prove that any authority or any sanction was given by the executive magistrate or by the officer-in-charge of the police station to use the force which has been used by them in firing of teargas smoke shell whereby the boy got killed.

    The provisions of Chapter IX nowhere provide that police personnel can use any weapon which has the effect of taking the precious live of any one. The chapter IX only provides for using the force to the extent of arresting and confining the persons forming part of the unlawful assembly but not using fire arms to disperse or kill. It further provides that any police personnel can use the force but that too with the sanction and authority of the magistrate or the officer-in-charge of the Police Station concerned. In so far as the facts of the present case are concerned it has no where been shown or established either from the magisterial enquiry or by the SIT that before using the fire arms the sanction/permission was given by the executive magistrate or the officer-in-charge of the police station to use the fire arms or fire the tear smoke shell. If the tear smoke shell was fired by the petitioners without any authority of law then their act of firing tear smoke shall does not fall within the ambit of discharge of their official duty. More so when it is revealed clearly from the magisterial enquiry and to some extent from the report of SIT that on the eventful day no rioting was going on at the time the fire smoke shell was fired by the petitioners.     Further more, the protection under Section 132 can be only claimed, if the act was done in the discharge of the official duty but as far as the enquiry conducted by the Magistrate is concerned, it is clearly revealed that there was no rioting at the time the fire smoke shell was fired and as the petitioner were suspended for their misconduct, this fact  lends further credence to the fact that petitioners misused not only their position but also exceeded their powers and in a state of frenzy fired tear smoke shell only to take a precious life of teen aged small boy of class 9th standard, so as such, the petitioners cannot claim protection as envisaged under Section 132 Cr.P.C.

    Further more, it has been contended by the petitioners that under the “Jammu and Kashmir Disturbed Areas Act, 1997” the entire Valley has been declared as disturbed area and once the entire Valley has been declared as disturbed area, the powers have been conferred upon the police to fire upon the persons contravening certain orders, but as far as the section 4 of the Disturbed Areas Act is concerned, it provides that under the disturbed area any Magistrate or Police Officer not below the rank of Inspector or sub-Inspector in case of the Armed Branch of the police, may, if he is of the opinion that it is necessary so to do for the maintenance of public order, after giving such due warning, as he may consider necessary, fire upon, or otherwise use force even to the causing of death, against any person who is indulging in any act which may result in serious breach of public order or is acting in contravention of any law or order for the time being in force, prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire arms, ammunition or explosive substance.

    The language of Section 4 gives powers to the Magistrate and the Police officers not below the rank of Inspector or Sub Inspector to use force or authorize them to fire upon or use powers even to the causing of death. The powers are given to the Magistrate and the Police officers not below the rank of Inspector or Sub Inspector to use force or authorize them to fire upon or use powers even to the cause death.  But this protection cannot be availed by the petitioners because one of the petitioners is only ASI in rank while as, the other petitioner is a constable so even if it is presumed that entire Valley has been declared as disturbed area and powers have been conferred upon the police personnel to use force, but as far as the language of Section 4 of the Act is concerned, the force and power even to the extent of firing upon the person to the causing of death can be availed only by the Magistrate or the police officer not below the rank of Inspect and Sub Inspector. Since the petitioners are ASI and Constable so the protection given under Section 4 of the Act cannot be availed by the petitioners.

Further more the allegations against the petitioner is that on the fateful day i.e. on 31.10.2010 the petitioners without any provocation fired a teargas smoke shell whereby, the deceased was killed. The act of the petitioners in killing the deceased was not even owned by the Govt. or high ups of petitioners. Their act of firing a tear smoke shell which killed a small boy was even condemned by their high ups as well. Their act of firing a tear smoke shell was even termed and regarded as misconduct by authorities in police department, which forced the police authorities to suspension them from their services, as is evident from the order passed by the higher authorities of police whereby, the petitioners were put under suspension. The order by virtue of which one of the petitioners was suspended reads as under:

                                           DISTRICT   POLICE   OFFICE   SRINAGAR
ORDER NO. 220/2010
Dated: 31.10.2010

“ASI, Ab. Khaliq No. 350/S of P/s Nowhatta is hereby placed under suspension with immediate effect for his misconduct during a law and order problem in his jurisdiction on January, 31st 2010. The suspendee officer is allowed to draw subsistence allowances as admissible under rules and will deposit his Govt. articles in DPL Store. He shall remain attached with DPO Srinagar and shall face a departmental enquiry to be conducted by SP Hqr. Srinagar
”Sd/Sr. Superintendent of Police, Srinagar.
No: – Estt/10/S-1/1474-80 Dated 31.01.2010

Copy to the:
1.    Inspector General of Police Kashmir Zone Srinagar
2.    Dy. Inspector General of Police CKR Srinagar
……. For favour of information
3.    Superintendent of Police City North/Hqr Srinagar
4.    SDPO Khanyar/Dy SP DAR DPL. Srinagar
5.    SHO P/s Nowhatta/LO DPL/DA upper/posting/OBN/file…all for inf. And necessary action   

By passing the order of suspension against the petitioners on the grounds of misconduct during the law and order problem establishes the fact that the petitioners fired tear smoke shell without any cause, provocation and as such the illegal act done by the petitioners in firing a teargas smoke shell was not done by them under the colour of their official duty. In case the accused/petitioners had acted under the colour of their official duty and had they fired the teargas smoke shell in the discharge of their duty then they should not have been suspended. By suspending the petitioners a strong and un-rebutted presumption can be raised that the petitioners had acted in breach of their authority and that is the reason that they were suspended.

From the record it is manifestly clear that the initially the  complaint was lodged by the complainant before the Ld. CJM on 15.02.2010 which was forwarded by the Ld. CJM to the police for initiation of action under Section 156(3) Cr.P.C. thereafter, the 2nd complaint was filed by the petitioners before the Ld. CJM on 27.03.2010. On the date the complaint was lodged, the petitioners were already suspended from their services and as the petitioners were suspended from their services on the ground that they had exceeded their powers and had committed misconduct in the discharge of their official duties, which had established the fact they had misused their power and position and had acted in breach of their official duty, so the protection under Section 132 Cr.P.C was not available to them and could not have been extended to them. As the petitioners had not acted in accordance with the law and as the action taken by them was not  done under the colour of their official duty or in the discharge of their official duty, so no sanction  was required at the time prosecution was launched against them, so in view of the attending facts and circumstances and discussion made hereinabove, the plea raised by the petitioners that that no prosecution could have been launched against without obtaining sanction under Section 132 Cr.P.C is not sustainable.

So far as the 3rd question relating to the matter that the Ld. CJM had earlier forwarded the complaint to the police under Section 156(3) Cr.P.C, on which action was taken by the police, so the 2nd complaint as such was not maintainable. In so far this question is concerned, it is to be borne in mind that investigation contemplated in Chapter XII of the Code can be commenced by the police even without the order from the Magistrate. It does not mean that when the Magistrate orders investigation under section 156(3), it would be a different kind of investigation. Such investigation in all cases has to end up only with the report contemplated in Section 173 of the Code. But in cases where a Magistrate is not inclined to make any such order where he intends to or propose to take cognizance of the offence himself for the purposes of ascertaining as to whether he should proceed in the matter or not, the enquiry is ordered and if the report of enquiry prima facie makes out a case then discretion/ powers lie with the Magistrate to proceed in the matter and take cognizance under the relevant provisions of the Code. For the purposes of conducting investigation under section 202 Cr.P.C, a Magistrate is not required to direct only a police officer or police Station to conduct the investigation. Such an investigation can be made by any other person who may not be holding any post or who may not be a police officer. The purpose of holding such enquiry is to help the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words of Section 202(1) Cr.P.C i.e. “or direct the investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding”. Section 156 Cr.P.C falling within Chapter XII deals with powers of police officer to investigate cognizable offences, whereas, investigation envisaged under section 202 Cr.P.C contained in Chapter XV is different from the investigation contemplated under section 156 of the Code. Chapter XII contains the provisions relating to information to the police and their powers to investigate. Whereas, Chapter XV which contains Section 202 Cr.P.C deals with the provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of an offence on a complaint. Provisions of above two Chapters deal with two different facets all together. Though there could be a common factor i.e. complaint filed by a person. Section 156 deals with the powers of the police officer to investigate cognizable offences. Whereas, section 202 Cr.P.C refers to the powers of Magistrate to direct investigation by a police officer or any other person. But the investigation envisaged under Section 202 Cr.P.C is different from the investigation contemplated under section 156 of the Code. The purpose of conducting investigation under section 202 Cr.P.C is to remove the doubt which a Magistrate may have in his mind while deciding as to whether or not process should be issued or cognizance taken, after the report of investigation is filed, the powers lie with the Magistrate to decide as to whether process should be issued or not.

Now coming to the facts of present case where the ld. CJM decided to direct magistrate to make the investigation under section 202 Cr.P.C. no illegality appears to have been committed by the ld. CJM.  As the Magistrate was directed to make the investigation under section 202 Cr.P.C, so the magistrate was only required to make the investigation under section 202 Cr.P.C and submit the report. After the filling of the report the powers to proceed any further in the matter lies with the court only and if on the basis of report court is satisfied that any offence has been committed by the accused the process could be issued against him under section 204 Cr.P.C after taking the cognizance but if on the basis of report it is found by the court that no case is made out against the accused then court has powers to dismiss the complaint under section 203 Cr.P.C.

    From the language of the above quoted chapters it is manifestly clear that once the complaint has been filed before a Magistrate, he has the powers either to conduct the enquiry by himself or direct the enquiry to be conducted by any officer either the police officer or any other person. As the Ld. CJM directed the enquiry to be conducted by the Magistrate so there was no illegality committed by the Ld. CJM in directing the enquiry to be conducted by the Magistrate. After the report was submitted by the Magistrate, it was observed by the Ld. CJM that the enquiry conducted by the Magistrate is not clear on certain points and accordingly the I.G Police was directed to constitute a Special Investigating team (shortly SIT) to get certain matters investigated.
In his order dated 5.2.2011 it has been observed by the Ld. CJM that the investigation in the matter has not been properly conducted and some factual aspects are required to be investigated scientifically and objectively before issuing the process. In order to ascertain some of the facets scientifically and objectively, the I.G police was directed to constitute a team of Professional competent Police Officers headed by an officer of the rank of S.P to get some matters investigated, such as 1) To examine the witnesses. 2) to draw the possible route of the shell, 3) to study the actual range, 4) to arrest and interrogate the accused and 5) to investigate any other aspect of the matter.

Accordingly, in pursuance to the directions passed by the Ld. CJM the SIT was constituted and the SIT accordingly conducted the investigation/enquiry. By constituting the SIT no illegality appears to have been committed by the ld. CJM. The Ld. CJM wanted to clear some points scientifically and objectively which could not have been cleared by the Magistrate and such points could be cleared by the experts only and accordingly the SIT conducted the enquiry and examined experts and also examined the eye witnesses and other persons acquainted with the facts and circumstances of the case and the report was accordingly submitted. After considering the report filed by the Magistrate as well as the SIT, the Ld. CJM framed his opinion that there is sufficient material on the file, which leads to the presumption that the petitioners have committed the offence and accordingly the process has been issued against them. By ordering the magisterial enquiry or enquiry by the SIT, no illegality has been committed by the court below, so as such, the plea raised by the petitioners that an irregularity has been committed by the court below by directing the enquiry through Magistrate or SIT, is not sustainable.

In so far the 4th question regarding the sanction under Section 197 is concerned, it has been contended by the counsel for the petitioners that the court below had no authority or competence to issue the process against the petitioners because the petitioners are the public servants and are not removable from their services without the sanction of the Govt. so before process could have been issued against them, the sanction was necessarily to be obtained from the Govt. It has been contended by the counsel for the petitioners that the sanction to take cognizance is not only required at the post cognizance stage but the sanction is required even at the pre cognizance stage. It has been contended that once the complaint was filed against the petitioners, the court below was required to ascertain as to whether the sanction has been obtained or not, but as sanction had not been obtained by the complaint, at the time  complaint was filed before the Ld. CJM, the Ld. CJM should not have  entertained the complaint but should have directed the complaint to first obtain the sanction from the Govt. and then only file the complaint, but as the Ld. CJM has not only entertained the complaint without sanction, but issued the process and taken cognizance without obtaining sanction from the competent authority, so the order passed by the Ld. CJM as such, is to be declared as null and void and non-est in the eyes of law.
In so far the question of sanction as provided under Section 197 Cr.P.C is concerned it provides that protection given under Section 197 Cr.P.C is to protect responsible public servants against the possible vexatious criminal proceedings for offences alleged to have been committed by them while acting or purporting to act as public servants. The policy of legislature in enacting this section is to afford adequate protection to public servants, to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without any reasonable cause. This protection has certain limits and is available only when the alleged act is done by the public servants in the discharge of his official duty and is not merely a cloak for doing the objectionable act. The use of expression “official duty” implies the act or omission must have been done by the public servants in the course of his service and that it should be done in the discharge of his duty. This section does not extend its protective cover to every act or omission committed by the public servants in service but restrict its scope and operation to only those acts or omissions which are done by the public servants in the discharge of his official duty. There must be a reasonable connection between the alleged act and the discharge of official duty and then only his act can come under the protective cover of Section 197 Cr.P.C .

The question to examine as to whether the sanction is required or not under the statute has to be considered at the time of taking cognizance of the offence and not during the enquiry or investigation. The performance of the public duty under the colour of duty cannot be a camouflage to commit a crime. The public duty may provide a public servant an opportunity to commit crime and such issue is required to be examined by the sanctioning authority or by the court. The official capacity may enable the public servants to fabricate the record or misuse his powers; such activities cannot be integrally connected or interlinked with the crime committed in the course of discharge of official duty. The acts as done by the public servant or the act purporting to have been done by the public servant in discharge of his official duty, cannot as a matter of course be brought under the protective umbrella or requirement of sanction, same has been held in the authorities cited as AIR 1968 S.C 1232, (2009) 3, SCC 398, AIR 1997 S.C 2120. It has further been held that the protection given under Section 197 Cr.P.C. is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. The sanction of the appropriate authority is necessary to protect a public servant from unnecessary harassment or prosecution. Such a protection is necessary as an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralizes the honest officer. However, performance of public duty under colour of duty cannot be camouflaged to commit a crime. The public duty may provide such a public servant an opportunity to commit crime and such issue is required to be examined by the sanctioning authority or by the court. Thus, all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of requirement of sanction. As has been held in the authorities cited as  AIR 1968 SC 1323;  AIR 1978 SC 1568;  (1993) 3 SCC 339; AIR 1996 SC 204;  AIR 1997 SC 2102; , AIR 2009 SC 1404).

     In fact, the issue of sanction becomes a question of paramount importance when a public servant is alleged to have acted beyond his authority or his acts complained of are in dereliction of the duty. In such an eventuality, if the offence is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, grant of prior sanction becomes imperative.  Hon’ble Supreme Court in a case cited as   State of Orissa & Ors. Vs Ganesh Chandra Jew, AIR 2004 SC 2179, while dealing with the issue held as under:-

 “….. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.”

It has been contended by the complainant/respondent that the accused despite being  government official are not entitled for protection under Sec 197 Cr.P.C whereas on the other hand it has been contended that their act of firing a tear smoke shell is covered by the protective layer provided under Sec. 197 Cr.P.C, so the question which crops up for consideration is whether the alleged act committed by them  was within the colour of their official duty as would call for sanction before prosecuting them or the act was not  under the colour of their official duty and would not attract provisions of 197 Cr.P.C.

So far public servants are concerned the taking of cognizance of any offence, by any Court, as observed by Hon’ble SC in a casecited as 2004 STPL (LE) 33191 SC,  for prosecution against public servants is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied.

The pivotal issue i.e. applicability of Section 197 of the Code needs careful consideration. In Bakhshish Singh Brar v. Smt. Gurmej Kaur and another (AIR 1988 SC 257), Hon’ble Supreme Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows:-

“It is necessary to protect the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported to discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 197 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasized that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.”

The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objection-able act. If in doing his official duty, he acted in excess of his duty, but there is a reason-able connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.

Reference in this regard can be made with advantage to the case cited as to P. Arulswami v. State of Madras (AIR 1967 SC 776), wherein Hon’ble Supreme Court held as under:

“….It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code, nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.”

Prior to examining the merits of the case it may not be out of place to examine the nature of power which can be exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servant, who apart, from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. Section 197(1) and (2) of the Code reads as under:

“197. Prosecution of Judges and public servants.–(1) When any person who is Judge within the meaning of Section 19 of the Ranbir Penal Code or when any Magistrate, or when any public servant who is not removable from  his office save by or with the sanction of the State Government or the Government of India, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence except with the previous sanction–

(a) in the case of persons employed in connection with the affairs of the Union, of the Government of India; and
(b) in the case of  persons employed in connection with the affairs of the State, of the Government.

(2) No Court shall take cognizance of any offence alleged to have been committed by the Ruler of a former India State except with the previous sanction of the Government of India.”

               The section falls in the chapter dealing with conditions requisite for initiation of proceedings i.e. if the conditions mentioned are not made out or are absent then no prosecution can, be set in motion.  So far public servants are concerned the cognizance of any offence, by any Court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, “no Court shall take cognizance of such offence except with the previous sanction”. Use of the words, ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black’s Law Dictionary the word ‘cognizance’ means “jurisdiction” or “the exercise of jurisdiction” or “power to try and determine causes”. In common parlance it means taking notice of. A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.

         Such being the nature of the provision the question is how should the expression, “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty”, be understood? What does it mean? “Official” according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and others v. M. S. Kochar (1979(4) SCC 177), it was held: (SCC PP. 184-85, para 17):

“The words ‘any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, ‘it is no part of an official duty to commit an offence, and never can be’. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision.”

         Use of the expression, “official duty” implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.

It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determined its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefore then the bar under Section 197 of the Code is not attracted.

To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official has been explained by Hon’ble Supreme Court in Matajog Dobey v. H. C. Bhari (AIR 1956 SC 44) as:

“The offence alleged to have been committed (by the accused) must have some-thing to do, or must be related in some manner with the discharge of official duty. . . . there must be a reasonable connection between the act and the discharge of official duty; the act must bear, such relation to the duty that the accused could lay a reason-able (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.”

If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held official to which applicability of Section 197 of the Code cannot be disputed.

From the discussion made hereinabove, it is manifestly clear that the protection under Section 197 Cr.P.C can be extended to only those public servants who are not removable from the Services except with the sanction of the Govt. and the act purported to have been done by them must have been done in the discharge of their official duty. But in so far as the facts of the present case are concerned, it is alleged that on the fateful day the deceased was playing Carom board along with other boys and petitioners appeared on the scene of occurrence and without any provocation fired tear smoke shells whereby, the boy got ultimately killed. Apparently, it appears that the petitioners have exceeded their powers and their act of firing of teargas shells does not come under the purview of their official duties and even if it is presumed that the rioting was going on and the mob had gathered on spot to threaten the public security still then the petitioners were not required to open fire arms and fire teargas smoke shells that too without the permission of Executive Magistrate or the In charge Police Station concerned. Their act of firing smoke shells without any authority of law  does not come within the purview of discharge of their official duty, as such, the protective layer  under Section 197 Cr.P.C cannot be extended to the petitioners even if it is presumed that they are the public servants not removable from the services without the sanction of the government.

Though it has been contended by the counsel for the petitioners that the petitioners are public servants as such, not removable from the services without the sanction of the Govt. whereas on the other hand, it has been contended by the counsel for the respondent that the petitioners being the police officers of inferior rank do not come within the definition of public servants as such, the protective cover under Section 197 cannot be extended to them. From the record it is manifestly clear that the petitioner Abdul Khaliq  is of the rank of ASI whereas the other petitioner Mohd Akram is a constable and in so far the police rules are concerned , rule 335 provides that the ASI can be appointed or removed from the services by the DIG of Police whereas, the constable can be removed from the services by the S.P. as the police rules provide that the ASI and the constable can be removed from the services not by the Govt, but by the DIG Police and also by the S.P, so their services are not covered under Article 311 of the Constitution which provides that the public servant cannot be removed from the services unless sanction is obtained from the Govt., and as the petitioners are removable from the services by the DIG Police or SP police so the protection given under Section 197 Cr.P.C cannot be extended to the petitioners. Furthermore, as has been held in the authorities cited as 2003 Crl. L.J 2949 Punjab and Haryana, KLJ 1997 J&K page 220 and 2002 Crl. L.J3715 Delhi that the competent authority to remove the Sub Inspector and Assistant Sub Inspector from services is the Superintendent of Police who is their appointing authority, therefore, they are not entitled to the protection under Section 197 Cr.P.C.

As the petitioners can be removed from their services not by the Govt. but can be removed from their services by the DIG Police or S.S.P concerned so, the protection given under Section 197 Cr.P.C cannot be extended to them and even if  complaint has had been filed without seeking sanction under Section 197 Cr.P.C and even if the Ld. CJM has issued the process and taken the cognizance against the petitioners without sanction, his act of issuing process and taking cognizance as such, does not suffer from any illegality. No irregularity or impropriety has been committed by ld. CJM but impugned order has been order in inconformity with the provisions of law so the plea raised by the petitioners that the complaint is liable to be dismissed for want of sanction, is not sustainable.

Lastly, the 5th contention which has been raised by the petitioners that the Ld. CJM has acted illegally and has passed the impugned order in a mechanical manner because there was no material available on the file before the Ld. CJM, on the basis of which, he could have framed the opinion and taken the cognizance in the matter and issued process against the petitioners, so the impugned order is liable to be set aside.

Before adverting upon this issue it is to be analyzed as to what are the duties imposed on a magistrate by law when a complaint is filed and what material is to be considered by him and whether he is required to pass a detailed order when taking cognizance and issuing process against the accused is concerned.

Ordinarily when a complaint is filed before a Magistrate he has to ensure that no person is compelled to answer a criminal charge unless the court is satisfied that there is prima facie case for proceeding against the accused. The responsibility imposed and confidence reposed by the legislature on and in Magistrate as to exercise of his discretion in dismissing the complaint or issuing process against the accused is very onerous and pious. He is to exercise this responsibility and confidence judicially and not arbitrarily keeping in view the object of administration of criminal justice viz. to save innocent persons from the clutches of unscrupulous complainants and put to trial real offenders to whom it is not easy to bring to book due to their unholy league with the police.

In S.Nihal Singh V. Arjan Das, 1983 Criminal Law Journal 777, it was observed that in deciding whether or not there is sufficient ground for proceeding against the accused or dismissing the complaint, the discretion vested in the Magistrate has to be exercised judicially. He is neither expected to play into the hands of the complainant and chew meekly what he is fed by the complainant nor is he expected to hold a brief for the accused and summon witnesses with a view to find out the defence of the accused, if any. He is neither a post office, nor automation and he is to exercise his jurisdiction as to the exigency of the situation demands, the only limitation being that he cannot convert the enquiry into a full scale trial. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment.

In A. S. Nayal Vs Khem Chand 1983 ALL. C.C 264 explaining the duties of the Magistrates as to dismissal of complaint or issue of process against the accused it was observed that there is growing tendency on the part of mischievous litigants to file vexatious and frivolous complaints. Complaints for criminal misappropriation are filed against outstation accused. Complaints for defamation are filed. Complaints of civil nature are filed. Some of the complaints are filed solely for harassment. The purpose of a mischievous litigant is achieved when the accused are summoned. Some Magistrates act in a mechanical manner. It is time to sound a note of caution and apprise the Magistrates of their responsibility under the law. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding.

The legal position is that a Magistrate has to act like a reasonable and prudent person for satisfying himself prima facie if there is sufficient ground for proceeding. Where the Magistrate acts arbitrarily or ignores apparent absurdities and improbabilities of the version or acts upon intrinsically, untrustworthy self-contradictory evidence or acts in the absence of any legal evidence courts on a complaint filed illegally or vexatiously or without jurisdiction or without proper sanction or acts even when the complaint does not disclose any offence, there is no exercise of judicial discretion. For determining the question whether courts should proceed with the trial or not, the courts must be satisfied that there is sufficient ground for proceeding. The courts have to be on their guard to see that their process should not be abused for putting pressure on parties with a view of obtaining settlements of disputed questions.

He has to exercise this responsibility and confidence judicially and not arbitrarily keeping in view the object of administration of criminal justice viz. to save innocent while the law imposes duty on the magistrate to act reasonably and not arbitrarily and satisfy himself that there is sufficient material/record on the file which necessitates the issuance of process and taking of cognizance. But while taking cognizance and issuing process, the magistrate is not required to write a detailed and speaking order but what is required is that there must be a satisfaction based on the material which was collected during the enquiry or trial or presented before the magistrate by the complainant.

After considering the material if magistrate is satisfied that there is sufficient material collected before him which connects the accused with the commission of the offences, the magistrate may issue the process and take cognizance but in no case he is required to write a speaking  and the lengthy order. My view is supported by the judgment passed by the Hon’ble Supreme Court in case cited as AIR 2012 S.C 1921.

The relevant Paras wherein, it has been held that the magistrate is not required to write the speaking and lengthy orders are extracted and reproduced here under:

 9. Undoubtedly, merely for taking cognizance and/or for issuing process, reasons may not be recorded.  In U.P. Pollution Control Board vs. M/s. Mohan Meakins Ltd. and others, (2000) 3 SCC 745, the issue whether it was necessary for the trial court to record reasons while issuing process came to be examined again, and this Court held as under:-

“2. Though the trial court issued process against the accused at the first instance, they desired the trial court to discharge them without even making their first appearance in the court. When the attempt made for that purpose failed they moved for exemption from appearance in the court. In the meanwhile the Sessions Judge, Lucknow (Shri Prahlad Narain) entertained a revision moved by the accused against the order issuing process to them and, quashed it on the erroneous ground that the magistrate did not pass a speaking order for issuing such summons.

3. The Chief Judicial Magistrate, (before whom the complaint was filed) thereafter passed a detailed order on 25.4.1984 and again issued process to the accused. That order was again challenged by the accused in revision before the Sessions Court and the same Sessions Judge (Shri Prahlad Narain) again quashed it by order dated 25.6.1984.

5. We may point out at the very outset that the Sessions Judge was in error for quashing the process at the first round merely on the ground that the Chief Judicial Magistrate had not passed a speaking order. In fact it was contended before the Sessions judge, on behalf of the Board, that there is no legal requirement in Section 204 of the Code of Criminal Procedure (For short the ‘Code’) to record reasons for issuing process. But the said contention was spurned down in the following words: My attention has been drawn to Section 204 of the Code of Criminal Procedure and it has been argued that no reasons for summoning an accused person need be given. I feel that under Section 204 aforesaid, a Magistrate has to form an opinion that there was sufficient ground for proceeding and, if an opinion had to be formed judicially, the only mode of doing so is to find out express reasons for coming to the conclusions. In the impugned order, the learned Magistrate has neither specified any reasons nor has he even formed an opinion much less about there being sufficient ground for not proceeding with the case.

6. In a recent decision of the Supreme Court it has been pointed out that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah v. State of W.B., (2000) 1 SCC 722. The following passage will be apposite in this context:

“12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial.”

    Whether an order passed by a Magistrate issuing process required reasons to be recorded, came to be examined by this Court again, in Dy. Chief Controller of Imports and Exports vs. Roshanlal Agarwal & Ors., (2003) 4 SCC 139, wherein this Court concluded as below:-

“9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. M/s. Mohan Meakins Ltd. & Ors., (2000) 3 SCC 745, and after noticing the law laid down in Kanti Bhadra Shah v. State of West Bengal, (2000) 1 SCC 722, it was held as follows:

The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.

    Recently, in Bhushan Kumar and another vs. State (NCT of Delhi) and another (Criminal Appeal no. 612 of 2012, decided on 4.4.2012) the issue in hand was again considered. The observations of this Court recorded therein, are being placed below:-

“9. A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Wilful disobedience is liable to be punished Under Section 174 Indian Penal Code. It is a ground for contempt of Court.

10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.

D.    Time and again it has been stated by this Court that the summoning order Under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.”

33. This Court has held in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors. [(1976) 3 SCC 736] that whether the reasons given by the Magistrate issuing process under Section 202 or 204 Cr.P.C. were good or bad, sufficient or insufficient, cannot be examined by the High Court in the revision. All that the High Court, however, could do while exercising its powers of revision under Section 397/401 Cr.P.C when the order issuing process under Section 204 Cr.P.C. was under challenge was to examine whether there were materials before the Magistrate to take a view that there was sufficient ground for proceeding against the persons to whom the processes have been issued under Section 204 Cr.P.C.

As is quite evident and manifest from the law laid down in the judgments cited supra that in determining the question whether any process is to be issued or not, the Magistrate has to be satisfied that there is sufficient ground for proceeding and not whether there is sufficient ground for conviction.  At the stage of issuing the process to the accused, the Magistrate is not required to record reasons and  it is not be seen whether the reasons given by the Magistrate issuing process under Section 202 or 204 Cr.P.C. were good or bad, sufficient or insufficient, cannot be examined  in the revision. However, the revisional courts can do while exercising its powers of revision,  when the order issuing process under Section 204 Cr.P.C. is under challenge is to examine whether there was material before the Magistrate to take a view that there was sufficient ground for proceeding against the persons to whom the processes has been issued under Section 204 Cr.P.C.

In so far as this question of taking cognizance and issuing process is concerned, it is to be remembered that after the complaint was filed before the Ld. CJM, the Ld. CJM had postponed the issuance of process and taking cognizance in the matter and enquiry was directed to be made by the Ld. CJM and accordingly, the enquiry was conducted by the Magistrate and, thereafter, as it was observed by the Ld. CJM that some clarification regarding the scientific and objective points was required, so the SIT was constituted and was directed to conduct further investigation. Both the Magistrate and the SIT  filed their respective reports. Ld. Magistrate in his report  has found petitioners involved in the commission of offences on the basis of evidence recorded during investigation.  ld. enquiry Magistrate has examined number of witnesses such as Javid Ahmad, Mst Shamima, Farooq Ahmad, Ghulam Mohd, Tasaduq Ahmad, Mst Aisha, Abdul Majeed, Gh Nabi and Abdul Majeed who all have stated that on the particular day when the occurrence took place the situation was normal and everybody was involved in the daily activities and a shopkeeper situated near the place of occurrence was also open. But at about 4-5 P.M a white Gypsy from Police Station, Nowhatta came on spot carrying some police personnel, on the link road, near the Gani Memorial Stadium and one of the police personnel came down from the Gypsy and without any provocation fired a teargas shell at the distance of 30 ft on a boy who was walking on the link road, after playing carom board with other boys. Some of the witnesses have stated that the shell was fired by Abdul Khaliq Sofi who belongs to Police Station Nowhatta, wearing his name plate on his clothes.  The witnesses who have been examined by the Ld. Magistrate have clearly stated that there was no stone pelting on the particular day, it was calm prevailing around, but the police personnel without any provocation fired a teargas shell which hit the boy on head, which ultimately caused his death.

 The SIT conducted investigation and also examined some points scientifically and also examined witnesses. The SIT has recorded the statements of civilian witnesses namely Mushtaq Ahmad Bhat, Bilal Ahmad Sheikh, Sanaullaha Sheikh, Irfan Ahmad Khan, Bilal Ahmad Bhat, Javid Ahmad Chaloo, Ghulam Mohammad Bhat, Munis-Ul-Islam, Shabir Ahmad Khan, and the Police personnel namely Constable Firdous Ahmad No. 2598/S, Constable Showkat Ahmad No. 3341/S, Dvr. HC Nisar Ahmad No. 1401/S, Constable Nazir Ahmad No. 742/S, Abdul Majid Bhat No. 48/3rd Sec, HC Mohammad Sultan No. 732/S and SPO Mohammad Akram No. 920/SPO. That apart the SIT has conducted the exercise of test firing of tear smoke shells with the help of Ballistics Expert from Forensic Science Laboratory, obtained the medical opinion from the Doctors pertaining to the death of Wamiq Farooq (as reported In the Post-mortem Report), analyzed the ground situation, prepared the site map and also noticed the surrounding circumstances pertaining to the occurrence. The SIT has given its conclusion in paragraph (K) as under:

    “From all the relevant facts in statements of witnesses it can be concluded that on the day of incident there was no stone pelting going on in the area and police party entered the area surrounding Gani Memorial Stadium to control the situation. The gypsy in which nafri was boarded was stopped     near the masjid and the police party disembarked in order to chase the stone     pelters and fired tear smoke shell. At the same time the death of the boy    named Wamiq Farooq was reported which may have been due to fall from     the surrounding wall of Gani Stadium, or the death could have caused by tear smoke shell itself. However the police action was done in due course and as per the situation on the ground. But in its report the SIT did not rule out the possible cause of death of boy Wamiq Farooq could not have been caused by  the firing of tear smoke shell, apart from the other reason being fall from the Stadium Wall. However, on the close analyses of evidence collected by the SIT as referred to in paragraph (j) it has pointed out to the fact, that an injury of the nature could have been caused by the striking of tear smoke shell. There is sufficient material to draw the conclusion that most likely the cause of injury on the head of deceased was hitting of tear smoke shell.

    Another important aspect of crucial significance, investigated by the SIT, pertaining to test firing of tear smoke shells, as discussed in paragraphs (c), (H) and (I) of the report, also indicates towards the possibility of the tear smoke shell to have been the cause of injury received on the head of deceased. The firing of tear smoke shells was examined by the ballistic experts. The opinion expressed by the ballistic experts indicated that it is highly likely that the tear smoke shell can cause injury to any human target, intentionally or unintentionally throughout its extreme range of 135+10 mtrs. It also has been expressed by ballistic expert that the shell projected from the tear gas gun can hit the human body accurately up to the distance of 12 feet which may prove fatal.

     The civilian witnesses number 1, 2, 3, 4, 5 and police witnesses number 1, 2, 3, 4, 5, and 6 examined by SIT highlight that there was an incident of heavy stone pelting by the miscreants which had compelled the police party to resort to firing of tear smoke shell to disperse the mob. Other witnesses being civilian witnesses number 7, 8 and 9 have disclosed that there was no stone pelting at the time when the police party arrived on the scene and police officials fired tear smoke shell aimed at the boy who suffered injuries and later on expired. Apparent analysis of the account of the occurrence as given in the statements of eyewitnesses points out to the probability of there being stone pelting by the mob. The circumstances of stone pelting before and after the occurrence, as collected and placed on record by the SIT do indicate to the probability of there being the episode of stone pelting at the time of alleged occurrence and the incident involving the firing of tear smoke shell.

    All the witnesses examines by Magistrate and some of the witnesses examined by SIT in their statements have indicted ASI Abdul Khaliq Sofi to be the person responsible for firing of tear smoke shell with his Tear Gun. The witnesses point out that Tear Gun was aimed at the boy who had received injury from the tear smoke shell so fired. Another account given by police personnel point out to firing of tear smoke shell by SPO Mohammad Akram with his Tear Gun. Although the evidence does not conclusively determine as to who had actually fired the tear smoke shell, nonetheless the said two persons are suspected of firing of tear smoke shell, and strong circumstances exist to suggest that one of them had fired tear smoke shell.

    The test firing of tear smoke shells, coupled with the statements of eyewitnesses as recorded by the SIT, does not rule out the possibility of the tear smoke shell to have been recklessly fired by the said two persons, aiming at the persons running helter-skelter after pelting stones. Even the evidence collected by the SIT indicates that the stone pelters were chased by the police party and tear smoke shell was fired to disperse them.

    The petitioners having the weapons in their hands were expected to use them with proper care and caution while maintaining law and order duty. They were required to use only that much of force which was required to disperse the unruly mob. The tear smoke shell should have been fired with intent to disperse the mob and maintain the calm but not fired recklessly to take a precious life. Any police personnel using the Tear Gun is required to handle it properly. It is not a weapon of offence but only intended to disarm the miscreants. If it is recklessly used and recklessly fired at the human target intentionally or unintentionally, it is likely to cause serious injuries to the human targets and can result in the death as has happened in the present case.

    Similar situation appears to have resulted in this case also because of a reckless use of Tear Gun and its reckless use by the petitioners. The circumstances as are available in the record of investigation conducted by the SIT do indicate that this was an episode of reckless firing of tear smoke shell by the police personnel, while they had tried to disperse the stone pelters. The person of ordinary prudence, the police personnel using the Tear Gun also being so, are in normal course expected to know the consequences of reckless firing of tear smoke shells on the mob. This has the potential of causing such injuries which in the ordinary course would be sufficient to cause death of a person who is hit by such tear smoke shells.

    The mandate of the Court at the stage of issuing process and taking cognizance is not to sift the evidence meticulously so as to hold that accused will be convicted on the basis of material collected during the course of investigation. The Record which was available before Ld CJM leads to the presumption that the petitioners fired a teargas smoke shell without any provocation and some of the witnesses examined by the SIT have stated that on the day of occurrence the rioting was going on and in order to quell the rioting the teargas smoke shell was fired so as to disperse the rioters, which hit the deceased. This fact has been established by the enquiry conducted by the Magistrate as well as by the SIT that the deceased was hit by a fire smoke shell which was fired by one of the petitioners.

Perusal of the trial court record reveals that there was sufficient material before the ld. CJM to frame an opinion about the involvement of the petitioners with the commission of the offences. The report filed by the Ld. Enquiry Magistrate establishes the fact that the petitioners have used fire arms without any provocation and without there being any need or occasion for them to use the fire arms because it has been stated by all the witnesses examined by the Magistrate that on the particular day no rioting was going on and the people were involved in their daily activities. Since the report of enquiry filed by the Magistrate and also filed by the SIT prima facie make out a case against the petitioners that the tear smoke shell was recklessly fired by them which killed the boy so apparently there was sufficient material before the Ld. CJM to proceed ahead in the matter and issue process and take cognizance in the matter. The act of issuing process and taking cognizance does not suffer from any irregularity or illegality, as such; the order passed by the ld. CJM cannot be reversed or set aside. In the circumstances, the case is not one which needs any interference under section 435 Cr.P.C.

For the reasons discussed hereinabove, the revision fails and is dismissed. The revision file after due completion shall be consigned to records and trial court record be sent down. The parties shall appear before the trial court on 3.3.2014.
Announced
25.2.2014

                                                                                                                                                                              (Parvez Hussain Kachroo)
2nd Addl. Sessions Judge,
Srinagar

Wamiq Farooq, 13 was killed in January 2010 after he was hit by a tear gas smoke shell at point-blank range at Rajouri Kadal in Srinagar.

It was only after the intervention of court that the family could register a First Information Report (FIR). Soon after a SIT was constituted and a judiciary enquiry held, arrest warrants were issued against the two culprit cops by the then CJM Srinagar.

But the decision was stayed as the Police filed a revision petition in the case.

After the case was transferred to Justice Parvez Hussain Kachroo, 2nd additional session’s judge Srinagar, he dismissed the revision petition and upheld the decision pronounced by CJM passed on August 22, 2013.

Kashmir Life reproduces the copy of the order pronounced by Justice Kachroo. Advocate Ajaz Ahmad Dar was pleading the case on victim’s side.

 

COURT OF 2ND ADDITIONAL SESSIONS JUDGE SRINAGAR

Present:- Justice Parvez Hussain Kachroo

Computer No:-010301063212013

 

File No.               Date of Institution        Date of decision

21-R/75-R           3.9.2013/18.12.2013           25.2.2014

 

1.     Abdul Khaliq Sofi, Assistant Sub Inspector, J&K Police.

2.     Mohammad Akram, Constable J&K Police

                                                                   (Petitioners)       

          Vs      

1.     Farooq Ahmad Wani S/o Late Khaliq Wani

     R/o Chana Mohalla, Rainawari, Srinagar

                                                (Contesting respondent)

2.     SHO Police Station Nowhatta

3.     S.S.P Srinagar

4.     Inspector General of Police, Kashmir Srinagar

                                                (Proforma respondents)

In the matter of:

Revision against the order dated 22.8.2013 passed by Ld. Chief Judicial Magistrate Srinagar in the complaint titled Farooq Ahmad Wani vs. Abdul Khaliq Sofi, Assistant Sub Inspector, J&K Police and ors.

Mr. Mushtaq Ahmad Dar Adv. & Associates for the petitioners

 Present.

 

Mr. Aijaz Ahmad Dar Adv. & Associates, for contesting respondent

 

          O  R D E R                              

This criminal revision which impugns the order dated 22.8.2013 passed by ld. Chief Judicial Magistrate, Srinagar in a complaint titled as “Farooq Ahmad Wani vs. Abdul Khaliq Sofi, Assistant Sub Inspector J&K Police and ors” for offence of culpable Homicide not amounting to murder as defined under Section 299 of RPC, punishable under Section 304 (Part 2nd) of RPC,  has been assigned to this court after same was transferred by the Worthy Pr. Sessions Judge, Srinagar for disposal under law from the court of 1st Additional Sessions Judge, Srinagar.

In the memo of revision it has been alleged that a complaint came to be instituted before the court below i.e. court of Ld CJM Srinagar on 27th March, 2010 wherein, it has been alleged by the complainant Farooq Ahmad that on 31st of January, 2010 a tear gas shell was fired by the police party in the head of the victim, namely Wamiq Farooq, at the distance of 30 feet near a Mosque adjacent to Gani Memorial Sports Stadium, Rajouri Kadal, resulting in his death on spot.

It has been  further alleged that the complainant as well as his other relatives approached the Police Stations Rainawari and Nowhatta for registration of case against the delinquent police officials but all in vain. Reluctance and inaction of Police to take any action, forced him to approach the court of Chief Judicial Magistrate Srinagar on 11.2.2010 for registration of FIR against the delinquent police officials who fired the tear gas shell on the head of the deceased, Wamiq Farooq and the court below vide order dated 11th February, 2010, directed the police concerned to submit a detailed report and in response to which the proforma respondent No.3 submitted a detailed report vide communication No. LGL/CL/2010/625 dated 19.2.2010 which has been alleged to be concocted.

It is further alleged in the complaint that actually the matter of  fact is that the deceased Wamiq Farooq along with some other teenage boys/friends was playing carom near the mosque and in the mean time a police Gypsy bearing registration No. JK02P/59132 of Police Station, Nowhatta came in the area and at that relevant time there was not any sort of violence or agitation going on in the area, yet one of the police officials came down from the said vehicle and without any cause, any challenge or justification fired a tear gas shell from a small and short distance of 30 feet from the victim, which hit the head of the victim and thereby, causing his death. The killing of victim was admitted by the government and the delinquent police official identified as ASI has been put under suspension on the ground of misconduct.

 The court below after considering the complaint, statements of witnesses  and the police report received in this behalf, ordered for Magisterial enquiry vide order dated 11.5.2010 and the enquiry was initially entrusted to Judge Small Causes, JMIC Srinagar for conducting  enquiry under Section 202 Cr.P.C for ascertaining the truth or falsehood. But as the Ld. Judge Small Causes Court, JMIC Srinagar expressed his inability to conduct the enquiry thereafter by virtue of order dated 31.5.2010 the matter was transferred to the court of Passenger Tax Special Judge, JMIC Srinagar for conducting enquiry and accordingly  enquiry was conducted, concluded and report submitted thereof.

It is further alleged that before all this was done, the court of Ld. CJM ordered IGP Kashmir to constitute a Special Investigating Team (shortly SIT) of at least three officers of known professional competence, integrity headed by the officer of the rank of S.P and accordingly, the SIT was constituted and investigation was conducted by the SIT and the report was accordingly filed. In its report the SIT squarely exonerated the respondents No.1 and 2 from criminal liabilities. After considering the magisterial enquiry as well as the report submitted by the SIT, the impugned order dated 22.8.2013 came to be passed. The impugned order is alleged to be bad in law and devoid of any merit and, as such, is assailed on the following grounds.

1.     That the trial court has directed the investigating team to conduct the investigation in due course of law by virtue of order dated 5.2.2011 in which it was mandated to investigate the matter in accordance with the law and record the statements of the witnesses acquainted with the facts of the case and submit the report. The only option and the mandate left with the trial court was to ascertain as to whether any case has been made out against the accused or not and to examine the material which was collected by the investigating team. In case after considering the report submitted by the investigating agency, if no case was made out, the court was either to dismiss the complaint or direct the investigating agency to make further investigation; and if no such procedure was adopted by the court, then the magistrate had to proceed with the enquiry by himself as envisaged under Section 200 Cr.P.C.  A Magistrate cannot exercise the option of enquiry by a magistrate in a case in which the closure report has been submitted. In the instant case the SIT had filed a closure report so the option available with the court below was to get the matter either further investigated or re-investigated and there was no other option available to the trial court so, as such, the court below has erred in law by directing the magisterial enquiry without assigning any reason thereto. As the trial court has exceeded its jurisdiction by ordering the judicial enquiry so the order passed by the trial court directing the enquiry to be conducted by Judicial Magistrate, First Class, Judge Small Causes and thereafter, assigning the same enquiry to JMIC, Special Judge, Passenger Tax even when the police had filed a closure report, is bad in law. As the trial court has acted not in accordance with the law so the impugned order is liable to be set aside and quashed on this ground alone.

2.     It is further alleged that although the trial court had directed the SIT to submit the report, the direction in essence was made to submit the charge sheet in the form of closure report, so from the face of it the impugned order is full of lacuna and, as such, deserves to be set aside.

3.     That once the complaint was filed before the trial court, the trial court ought to have conducted the enquiry by itself and not assigned the enquiry to any other magistrate. The order passed by the trial court by directing another magistrate to conduct the enquiry is squarely without jurisdiction as the question of sanction for the prosecution would have come into play, because the accused were the police officers against whom the cognizance should not have been taken without seeking sanction from the government. The accused were not on a picnic but they were doing official duties and there act was squarely under the cover of their official duty and the area where they were doing their duties is squarely covered under the Disturbed Area Act for the time being in force. As the petitioners were performing their duties in the area, which is not only disturbed, vulnerable, volatile sensitive and vulnerable to riots etc and the persons who have acted in due course of law to protect themselves and to protect the area from the rioters have been given safeguard as they had been discharging their duties in due course of law, so as such, they could not be prosecuted unless sanction is granted by the competent authority for their prosecution. Since no sanction has been obtained for their prosecution so the order impugned is liable to be set aside.

4.     It is further alleged that as the investigation conducted in the matter reveals no prim facie case against the accused, therefore, the court below should not have directed the enquiry by a judicial magistrate or in the alternative the court below ought to have conducted enquiry by itself. In the instant case no sanction for prosecution has been obtained and as the trial court has refused to accept the closure report so the procedure established by the trial court amounts to sheer abuse of process of law resulting in vexatious proceedings and harassing the petitioners for their due discharge of their duties and if they are penalized and prosecuted for the due discharge of their duties then nobody would be out on streets to control the mob and illegal processions and the state would come to the state  of confusion and chaos.

5.     That the petitioners were directed to control the rioters and accordingly they performed their duties in controlling the riots. Accordingly, a FIR stands registered in this behalf which has been filed by the SIT with the closure report. The petitioners have acted in due discharge of their duties and yet they have been arrayed as accused without there being any evidence against them either collected by the SIT or by the magisterial enquiry. There is nothing on record to suggest that petitioners have ever been subjected to test identification in this behalf. They have been falsely implicated in this case on the basis of mere apprehension and without any substantial evidence on record. The complainant in his complaint has initially stated that only one tear gas shell was shot but subsequently, the complainant has made improvements in his complaint from time to time. He has exaggerated the facts and evidence by saying that many tear gas shells have been fired which shows that the main object of the complainant is to involve the petitioners in a false and frivolous case. The evidence collected by the SIT as well as by the magisterial enquiry, squarely exonerated the petitioners from criminal liability because they are not remotely connected with the commission of the alleged crime, so on this count also the impugned order is liable to be quashed.

It has been accordingly prayed that the order impugned being bad, perverse and contrary to the facts and evidence on record, so the order impugned be set aside and all the proceedings be quashed and also the order taking cognizance by the court below being without jurisdiction, based on no evidence, may be quashed and the complaint be dismissed and closure report submitted by the SIT may be considered.

Heard the arguments submitted by the counsel for the parties. The counsel for the petitioners submitted that the order passed by the trial court dated 22.8.2013 is bad, perverse and non-sustainable in the eyes of law as such, same is required to be set aside, quashed and to be declared a nullity because initially when the alleged occurrence whereby the deceased Wamiq Farooq was alleged to be killed by the tear gas shell, which was allegedly shot by the petitioners a complaint came to be filed by the complainant before the court of learned CJM Srinagar and the said complaint appears to have been forwarded by the Ld. CJM Srinagar to the police concerned under Section 156(3) Cr.P.C for initiation of proceedings as envisaged under law. But thereafter, one more application/complaint  came to be filed on the same grounds and facts and in the said complaint the learned CJM was pleased to pass an order whereby, enquiry was directed to be conducted by the Magistrate under Section 202 Cr.P.C. but before the complaint could have been entertained it was necessary for the complainant to seek the sanction from the Govt. before filing the complaint against the petitioners because the petitioners are police officials and are working in the Police Department so before any cognizance could have been taken against them for initiation of any criminal proceedings sanction as envisaged under Section 197 Cr.P.C was required to be obtained. The petitioners being the public servants, so the court of Ld. CJM was not only debarred from taking cognizance in the matter, but the court was not competent even to entertain the complaint. Before entertaining the complaint, the court was required to see as to whether the sanction required for prosecution of the petitioners was obtained or not and since no such sanction was obtained from the competent authority so the court below was not competent to even entertain the complaint. The court was required to consider the question of sanction not only at the post cognizance stage but also at the pre cognizance stage because the petitioners had acted in the discharge of their official duties. 

          He further submitted that when the first complaint was filed by the complainant which was referred by the court of Ld. CJM Srinagar to Police concerned under Section 156(3) Cr.P.C, at that time the court was required to enquire as to whether the sanction was obtained or not because the order directing the investigation under Section 156(3) Cr.P.C would also amount to taking cognizance of the offence. At the time the complaint was filed, the Magistrate was required to apply his mind before exercising its jurisdiction under Section 156(3) Cr.P.C or directing investigation under Section 202 Cr.P.C. The learned CJM has neither considered the question of cognizance at the time the matter was referred to police under Section 156(3) Cr.P.C nor when the enquiry was directed to be made by the Magistrate under Section 202 Cr.P.C so the order passed by the Ld. CJM is liable to be declared null and void. To support his arguments he has sought support from the judgment passed by the Hon’ble Supreme Court in case titled Anil Kumar and Ors vs. M.L Ayapa and another passed in Criminal Appeal No. 1590-1591 of 2013 (SLP) Criminal 6652-6653 of 2013, wherein, at para Nos 8, 9, 10, 11and 13 which are extracted and reproduced here under, it has been held that:-    

 8. We may first examine whether the Magistrate, while exercising his powers under Section 156(3) Cr.P.C. could act in a mechanical or casual manner and go on with the complaint after getting the report. The scope of the above mentioned provision came up for consideration before this Court in several cases. This Court in Maksud Saiyed case (supra) examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.

9. We will now examine whether the order directing investigation under Section 156(3) Cr.P.C. would amount to taking cognizance of the offence, since a contention was raised that the expression “cognizance” appearing in Section 19(1) of the P.C Act will have to be construed as post-cognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act. The expression “cognizance” which appears in Section 197 Cr.P.C. came up for consideration before a three-Judge Bench of this Court in State of Uttar Pradesh v. Paras Nath Singh (2009) 6 SCC 372, and this Court expressed the following view:

6. ………….and the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, ‘no court shall take cognizance of such offence except with the previous sanction’. Use of the words ‘no’ and ‘shall’ makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black’s Law Dictionary the word ‘cognizance’ means ‘jurisdiction’ or ‘the exercise of jurisdiction’ or ‘power to try and determine causes’. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.

          In State of West Bengal and Another v. Mohd. Khalid and Others (1995) 1 SCC 684, this Court has observed as follows:

It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.”

10.     The meaning of the said expression was also considered by this Court in Subramanium Swamy case (supra). The judgments referred to herein above clearly indicate that the word “cognizance” has a wider connotation and not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C. obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 Cr.P.C. and the next step to be taken is to follow up under Section 202 Cr.P.C. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage.

11. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore, clothed with all the magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options. He may take cognizance of the offence under Section 190 Cr.P.C. or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) Cr.P.C. The Magistrate, who is empowered under Section 190 to take cognizance, alone, has the power to refer a private complaint for police investigation under Section 156(3) Cr.P.C.

13. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra).

Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him….. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.”

          He accordingly submitted that as not only the complaint has been entertained but prosecution has been launched without sanction and also cognizance has been taken without sanction so therefore order impugned is liable to be set aside. 

      He submitted that the protection given under Section 197 Cr.P.C is to protect the responsible public servants against the possible vexatious criminal proceedings for the offences alleged to have been committed by them while they are acting or purporting to act as the public servants. The policy of legislature is to offer adequate protection to public servant to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without the reasonable cause. Although this protection has limitations and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. Use of the expression “official duty” implies that the act so committed must have been done by the public servant during the course of his service and that it should have been done in discharging of his official duty. The section does not extend its protection to cover every act. But since the petitioners on the day of occurrence were discharging their official duties and dispersing the mob of rioters who had gathered to damage the public property and at the relevant point of time, the petitioners were discharging their official duties in quelling the rioters who were bent upon to threaten the security of the State and damage the public property and if in the process of dispersing the rioters, the teargas shell as alleged was fired by one of the petitioners, the petitioners as such, cannot be held guilty to have committed any illegal act and it cannot be said that the act of dispersing the mob of rioters was not done under the colour of their official duty. There was a reasonable connection between the alleged act and the official duty and as the petitioners were discharging their official duties so before they could be prosecuted and before cognizance would have been taken, the sanction was to be obtained from the competent authority and without obtaining sanction not only the order taking cognizance is illegal so to be set aside but entertaining the complaint is also illegal. To support his arguments he has sought support from 2008 AIR S.C 1937 and 2010(3) S.C Crimes 88.

          He further submitted that there is no restriction on the powers of a private citizens to file a private complaint against the public servant and the court is also not barred from taking cognizance of offence by relying on incriminating material collected by the private citizen, but before the private citizen can file a complaint against the Govt. servant he is required to obtain a sanction for prosecuting the public servant and in case a private citizen  files a complaint against the Govt. servant he has right to seek sanction from the competent authority and the private party who seeks sanction is to be informed of the discharge of the sanction application so as to enable it to avail appropriate remedy if not satisfied with the decision. Before a complaint can be filed by the private person against the Govt. servant he is required to obtain sanction and then only the complaint can be filed by a private person against the Govt. servant and then only the court can entertain the complaint and take the cognizance in the matter against the alleged public servant and once the private complaint has been filed against the Govt. Servant it is necessary for the Magistrate before it takes cognizance under Section 190,1(a) Cr.P.C, to apply his mind before taking cognizance of the complaint. He must not only apply his mind to the contents of the petition, but he must also enquire that required sanction has been obtained and the sanction has been granted for launching the prosecution. Before entertaining the complaint or before sending it for enquiry under Section 202 Cr.P.C the Magistrate is required to apply his mind and if he does not apply his mind but issues the process without satisfying himself, as to whether the sanction has been obtained or not, his order of taking cognizance is liable to be reversed and as in the present case, the court below has not applied its mind but has acted in a mechanical manner without satisfying itself as to whether the sanction has been obtained or not and as there was no sanction, so the complaint could not have been entertained in the first instance as such, is liable to be dismissed. To support his argument he has sought support from (2020)1 S.C (Crimes) 1041.

He further submitted that it is alleged by the petitioners that on the day of occurrence the deceased was playing carom board alongwith other boys and the petitioners appeared on the scene of occurrence and without any provocation they fired a tear gas shell from a very short distance, which caused death of a small boy, aged 11 years. Enquiry was ordered to be conducted by the Ld. CJM through a Magistrate as well as by the Special Investigating Team (SIT) constituted under the orders of the learned CJM. The report filed by the SIT clearly reveals that on the day of occurrence there was rioting going on in and around the place where the occurrence took place and it has been stated by the SIT in its report as there was rioting and severe stone pelting going on so in order to control the rioting the police action was initiated so as to save the  public property and in the process of dispersing the rioters the police action was necessitated and in the discharge of their duties in dispersing the rioters, the petitioners shot a tear gas shell which ultimately caused death of deceased Wamiq Farooq but tear gas shell was fired in the discharge of their official duty.

Since the petitioners were discharging their official duties and were dispersing the rioters and members of unlawful assembly who were bent upon to damage the public property and since the petitioners were discharging their official duties and dispersing the unlawful assembly consisting of rioters so no prosecution could have been launched against them unless and until sanction was obtained under the Provision of Section 132 Cr.P.C.

He further submitted that section 132 Cr.P.C provides that no prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any Criminal Court, except with the sanction of the competent authority and no police officer acting under this Chapter in good faith shall be deemed to have committed any offence. Provisions of Section 128 and 129 Cr.P.C provide that in order to disperse the unlawful assembly, if such assembly cannot be dispersed in accordance with the procedure as envisaged under Section 128, such assembly can be otherwise dispersed if it is necessary for the public security to be dispersed by military force. As the petitioners were discharging their official duties and as the security of the State was under threat so the petitioners were forced to use the force and disperse the members of the unlawful assembly who were bent upon to damage the public property and threaten security of the state. They have acted purely in accordance with the law and their act is covered by the protective umbrella as envisaged under Section 132 Cr.P.C. so before any prosecution could have been launched against them it was necessary that sanction under Section 132 Cr.P.C should have been be obtained. But as no such sanction was obtained; the prosecution which is launched against them is liable to be set aside.

He further submitted that initially when the complaint was lodged before the learned CJM, Srinagar by the complainant, the learned CJM was pleased to forward the same to the police concerned for initiation of necessary proceedings. Thereafter one more complaint came to be lodged by the complaint in which the learned CJM was pleased to direct a magistrate to conduct enquiry under Section 202 Cr. P.C. but once the complaint was lodged before the Ld. CJM and once that complaint was directed to the police for initiation of proceedings under Section 156(3) Cr.P.C then the complaint against which the present revision has been filed could not have been filed, as such, same was not maintainable because the learned CJM had already issued direction for police to take action under sec.156 Cr.P.C.  That complaint was forwarded to the police concerned and the police concerned after taking the cognizance in the matter conducted the investigation which revealed that no offence was committed by the accused. The police report revealed that the petitioners while dispersing the members of unlawful assembly and rioters were forced to use the force whereby one tear gas shell took the life of the deceased. The case registered by the police revealed that no irregularity was committed by the petitioners in firing the tear smoke shell. The case has been registered in the police station concerned in which deceased Wamiq Farooq has been shown as stone pelter along with other stone pelters. He has been declared as a member of the unlawful assembly and has been shown as stone pelter in the said FIR. Once case was registered by the police, the court of Ld. CJM had no competence to direct the enquiry to be conducted under Section 202 Cr.P.C because there cannot be two actions or two proceedings for one event/occurrence. If there was a case whereby a boy was killed, as alleged by the complainant, the investigation was conducted in the matter by the police which found the deceased as a stone pelter and he was labeled as a stone pelter, so there was no requirement for the court below to entertain the second complaint and hold enquiry under Section 202 Cr.P.C. The procedure adopted by the court of learned CJM is not in consonance with the provisions of law so, as such, the direction whereby the enquiry was directed to be conducted under Section 202 Cr.P.C by the Ld. CJM be recalled and, as such, same should be declared non-est in the eyes of law.

He further submitted that after the matter was referred to the Magistrate for magisterial enquiry and the report was filed there was no occasion for the court below to constitute SIT for making  fresh investigation in the matter and if the report was filed by the SIT which had clearly exonerated the petitioners from the commission of offences so the court below was required to accept the report submitted by the SIT and exonerate the accused/petitioners from the offences alleged to have been committed by them and accordingly dismiss the complaint. There was no material before the Magistrate on the basis of which he could have drawn inference that the accused were involved in the commission of the offences. The SIT during the course of investigation examined number of witnesses and the witnesses established before the SIT that rioting was going on and in order to disperse the rioters, the teargas shells were fired, out of which one of the teargas shell hit the deceased and this fact that on the day of occurrence a boy was killed and the rioting was going on is substantiated and corroborated by the fact, that the FIR has been lodged in the matter. The FIR has been lodged in the Police Station Nowhatta under FIR No.12 of year 2010 in which the deceased Wamiq Farooq has been shown one of the accused/stone pelter along with the other accused/stone pelters. The FIR which is registered in the case corroborates the fact that on that particular day when the boy was killed, a unruly mob of  rioters had gathered and in order to disperse the rioters, the police was required to use the force and in the process,  teargas shells were fired and if one of the teargas shell hit the deceased, the petitioners/accused cannot be held guilty of any offence, because what was done by the petitioners was required in the circumstances. The report submitted by the SIT totally and squarely exonerates the petitioners and shifts the criminal liability on the deceased and others who were involved in the anti social activities. The SIT in its report has stated that on the day of occurrence the rioting was going in and around the area and in order to disperse the rioters the police was forced to use the force and police was also forced to shot some tear gas shells and with the result one of such tear gas shell hit the deceased who got killed so accused can not be held guilty for committing any offence much less causing the death of a teen aged boy.

He further submitted that once the complaint was filed before the Ld. CJM and if the Ld. CJM was of the opinion to conduct any enquiry under Section 202 Cr.P.C, he had either to conduct the proceedings by himself or direct any magistrate subordinate to him to make the enquiry or direct the police to investigate the matter. He was not supposed to conduct both the enquiry as well as the investigation. The Section 202 Cr.P.C authorizes a magistrate to conduct either the enquiry or investigation. He cannot order for both, the enquiry as well as the investigation and since the Ld. CJM has directed for the enquiry as well as for the investigation by the police, so by directing both enquiry as well as the investigation the Ld. CJM has transgressed his powers and abused the provisions of Section 202 Cr.P.C, so his action being illegal and unwarranted as such, the order impugned is liable to be set aside and be declared null and void.

          He accordingly submitted that as the order impugned is bad in law and perverse, same be declared null and void and the proceedings initiated by the Ld. CJM on the basis of complaint may be declared null and void and be also set aside and the petitioners may be exonerated from the charges  which have been levelled against them.

          On the other hand counsel for the respondents submitted that once a complaint has been filed before a Magistrate, he has three options: 1) either he may decide that there is no sufficient grounds for proceeding further and drop action or 2) he may take the cognizance of the offence under Section 190(1)b Cr.P.C on the basis of the police report and issue process, this he may do without being bound in any manner by the conclusion arrived at by the police in their report or 3) he may take cognizance of the offence under Section 190 (1) (a) on the basis of original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200 Cr.P.C. If he adopts the 3rd alternative, he may hold or direct an enquiry under Section 202 Cr.P.C if he thinks fit and thereafter he may dismiss the complaint or issue the process as the case may be. So far as the facts of the present case are concerned, when the complaint was filed by the complainant before the court of Ld. CJM, the said complaint was forwarded by the Ld. CJM to the police concerned for initiation of proceedings as contemplated under section 156(3) Cr.P.C. but no action was taken by the police concerned. Instead of taking any action the police tried to shield the erring police officials and as the police was bent upon to protect the  erring  police officials and took no action in the matter but arrayed deceased as accused as a rioter so the complainant was left with no other option/choice but to lodged fresh complaint( present complaint) before the court of Ld. CJM and the Ld. CJM having three options available, opted to exercise the 3rd option and accordingly directed an enquiry to be conducted by a magistrate subordinate to him and also by special investigating team SIT, thereafter, on the basis of the report filed by the Magistrate and SIT, based on the enquiry conducted by them the processes has been issued against the petitioners so as such, no illegality has been committed by the Ld. CJM. In support of his arguments he has sought support from AIR 1980 SC 1883 wherein, it has been held that the Magistrate directing the investigation under Section 156(3) Cr.P.C, the police report states that no case has been made out, still the Magistrate can take cognizance and issue process.

 He submitted that it is an admitted position of law that section 197 Cr.P.C provides protection to the Govt. servants for prosecution without obtaining sanction from the competent authority, but this protection is meant for only those public officers who discharge their duties with responsibility but this protection cannot be extended to the Govt. officials who act irresponsibly. The protection given under Section 197 Cr.P.C is to protect the responsible public servants against possible vexatious criminal proceedings for offences alleged to have been committed by them while acting or purporting to act as public servants. This protection available to the Govt. servant cannot however be claimed as cloak for doing any objectionable act in the garb of official duty. There may be cases where while doing the official duty, the public servant, may exceed his duty which may fall within the definition of an offence, such excess, will not, as such, be sufficient ground to deprive the public servant from the protection provided by Section 197 of the Code of Criminal Procedure. At the same time if the act   complained of, had nothing to do with the official duty, but was done while on duty and was an act falling within the definition of offence, the public servant would not be entitled to the protection under Section 197 Cr.P.C. The act falling within the definition of offence connected directly and reasonably with his official duty, will certainly require sanction for prosecution of the Govt. servant, but the protective umbrella of Section 197 of the Code of Criminal Procedure will not cover every act or omission of the public servant in service. Since the report of the enquiry reveals that on the day of occurrence one small boy was killed by firing of tear smoke shell, the deceased was not involved in any anti social activities or rioting, but was playing carom board and the petitioners without any provocation fired a tear smoke shell whereby the deceased was killed so the act of the petitioners in killing the boy does not come within the purview of their official duty and the act of the killing the boy has no nexus with their official duty. The act committed by the petitioners as such, is not covered by Section 197 Cr.P.C so, as such, the protective umbrella of Section 197 Cr.P.C cannot be extended to cover the illegal omissions committed by the petitioners. To support his arguments he has sought support from 2007(2) JKJ 41 High Court of J&K, 1995 Crl. L.J 2964, Punjab and Haryana and 1997 Crl. L.J 2958 Punjab and Haryana wherein, it has been held that the protection available to the public servants under Section 197 Cr.P.C cannot be claimed as a cloak for doing any objectionable act in the garb of their official duty.

He further submitted that the act of the petitioners in firing tear smoke shell on a small eleven years old boy who was not involved in any rioting but was playing a game of carom, cannot be remotely connected with their official duty; therefore, no sanction is required  for prosecuting such erring public servants and as in the present case the petitioners have fired tear smoke shell on the boy who was not involved in any rioting and firing a smoke shell without any provocation does not come within the purview of their official duty, so no sanction is required for prosecuting such erring public servants. To support his arguments he has sought support from 1995 Cr.L.J 2964 Punjab and Haryana High Court wherein, it has been held that the act of firing at 3rd person by a public servant cannot remotely be connected with his official duty, therefore, sanction for the prosecution is not necessary.

He vehemently submitted that one of the petitioners is an ASI whereas the other petitioner is a constable and they can be removed from the services by the Superintendent of Police and also by the DIG of Police and not by the Govt, so therefore, they are not entitled to protection under Section 197 Cr.P.C. Their appointing authority being DIG as well as the S.P, so as such, the protective umbrella as envisaged under Section 197 Cr.P.C cannot be extended to them because their services are not governed by Article 113 of the Constitution, which provides for dismissal, reversal or reduction in rank of persons employed in civil posts in the Union or State Govt. by the Govt. only. It provides that no person who is a member of the civil services of a State or holds a civil post shall not be dismissed or removed by any authority subordinate to that by which he was appointed, as the petitioners are not removable from their offices either by the Govt. or with the sanction of the Govt. and it is the Superintendent of Police or DIG of Police who are their appointing authorities and consequently are competent authority to remove them from their services, as such the petitioners are not entitled to protection under Section 197 Cr.P.C. Since both the petitioners can be removed from their services by the DIG or by the Superintendent of Police so no sanction for their prosecution or removal from Govt. is required to be obtained. As provisions of Sec 197 Cr.P.C are not available to them so they can be prosecuted or removed from their services without the sanction of the Govt. To support his arguments he has sought support from 2002 Crl. L.J 3715, KLJ 1992 J&K 220, 2003 (Cr.L.J) 2949 Punjab and Haryana, 2002 Crl. L.J 3715 Delhi wherein, it has been held that the Sub Inspector and Assistant Sub Inspector are not entitled to protection under Section 197 Cr.P.C because competent authority to remove them from their services is not the Govt., but their appointing authority is Superintendent of Police etc. He accordingly submitted that as the protection as envisaged under Section 197 Cr.P.C cannot be extended to the petitioners, so they cannot claim protection under Section 197 Cr.P.C as such, the order passed by the Ld. CJM in taking cognizance and issuing the process against them without obtaining sanction is not bad in law as such, cannot be challenged or reversed.

 He further submitted that the contention raised by the petitioners that no prosecution can be launched against the petitioners unless sanction is obtained from the Govt. or competent authority under Section 132 Cr.P.C is not sustainable because the illegal act  done by the petitioners does not come within the purview of their official duty and as no rioting was going on, on the date when the small boy was killed, but the petitioners without any justification and provocation fired a tear smoke shell whereby, the boy got killed so, their illegal act is not covered by the protection which has been given under Section 132 of the Code of Criminal Procedure. The protection under Section 132 Cr.P.C can be availed by only such police personnel who is a member of Boarder Security Forces, Central Reserve Police Force or Para Military Force, but as the petitioners are not the members of such forces so they cannot claim such protection. Further more in order to disperse the members of the unlawful assembly the minimum force is required to be used and in case it is felt that the members of the unlawful assembly cannot be otherwise dispersed and if it is necessary for the security reasons that it should be dispersed by using force but before any force can be used, the permission has to be obtained from the Executive Magistrate for using the force to disperse such unlawful assembly and in case the force is required to disperse the unlawful assembly, the permission is to be obtained from the Executive Magistrate who may only direct for the arresting and confining the members of such unlawful assembly, but in no case the fire arms are required to be used to disperse such unlawful assembly. In case the members of the unlawful assembly cannot be dispersed by using the force as envisaged under Sections 128 and 130 Cr.P.C and it is necessary that the force is required to disperse such unlawful assembly then permission is to be obtained from the Magistrate and also from the Govt. But in the present case as there was no rioting going on, the deceased was not involved in any anti social activities and was not the member of any unlawful assembly, so there was no occasion for the petitioners to use the force and fire tear smoke shell and as they have not obtained permission either from the Govt. or from the Magistrate for using the force and for firing the tear smoke shell so their illegal act  is not covered by the protective umbrella given under Section 132 Cr.P.C, as such, the petitioners cannot claim that they are entitled to the protection given under Section 132 Cr.P.C and no prosecution can be launched against them without the permission of the competent authority.

He further submitted that after the magisterial enquiry was ordered to be conducted by the Ld. CJM, the report was filed but as the report filed by the magistrate required some technical as well as scientific clarifications so in order to clear those technical and scientific matters, the learned CJM directed the SIT to be constituted and directed to file the report. The order passed by the Ld. CJM whereby, the SIT was constituted was challenged by the petitioners not only before the court of Hon’ble Sessions Judge Srinagar but same was challenged before the Hon’ble High Court and even before the Hon’ble Supreme Court but all the Hon’ble courts were  pleased to up-hold the order passed by the Ld. CJM so the order passed by the Ld. CJM being up-held by the Hon’ble High Court  and also by the Apex Court has attained finality, so order whereby SIT was constituted  cannot be challenged  before this court. As the order passed by the Ld. CJM Srinagar whereby, the SIT was constituted has been up-held by the Hon’ble High Court so it cannot lie in the mouth of the petitioners to allege that order passed by the Ld. CJMs where SIT was constituted and directed to investigate into the matter, is bad in law and as such, is liable to be set aside. The SIT was directed by the Ld. CJM to hold an enquiry vis-a-vis some technical as well as scientific matters and the SIT after conducting the investigation and examining the witnesses submitted the report accordingly. During the course of investigation not only the magistrate but the SIT examined number of witnesses and all the witnesses who have been examined by the magistrate as well as by the SIT have stated in clear and unequivocal terms that on the day when the boy was killed there was no case of stone pelting or rioting, the deceased was playing Carom board and the accused/petitioners came in a white Gypsy and fired tear smoke shell without any provocation whereby the deceased was hit by the said shell and ultimately got killed. This fact, that the teargas smoke shell was fired by one of the petitioners, has been admitted by the petitioner himself in his statement recorded before the magistrate. He has stated that on 31.1.2010 he along with other police officials were discharging their duties and during the course of discharging their duties a fire smoke shell was fired by him on the directions of his superior to disperse the mob. This fact that the accused/petitioners have acted illegally finds support from the fact that petitioners have been suspended from their services by the concerned SSP on the ground that they have committed misconduct and by suspending both the erring petitioners, this fact is proved and established that the petitioners have acted illegally and their act of firing smoke shell was not done in the discharge of their official duties. He accordingly submitted that as the learned CJM after evaluating the material before him found the petitioners to have acted illegally and without legal justification fired on a small boy so their act not being covered by the protection given under Section 197 Cr.P.C or Section 132 Cr.P.C. learned CJM has rightly observed that the petitioners have acted illegally without any justification so the Ld. CJM has rightly taken the cognizance against them and issued the process against them. 

 He lastly submitted that revision filed by the petitioners is not maintainable and the provisions of Section 435 Cr.P.C cannot be pressed into service because the order passed by the Ld. CJM and the order which is impugned by the petitioners is an interlocutory order in nature and not the final order so the revision petition filed on this count is liable to be dismissed. The order which has been passed by the Ld. CJM is only interlocutory in nature and as such, the revision will not lie against the impugned order. In order to support his arguments he sought support from 2001 (7) S.C.C 401 wherein, it has been held that the powers of revision shall not be exercised in the relation to an interlocutory order. He accordingly submitted that the revision petition is not maintainable, be dismissed and the order passed by the Ld. CJM be up held.

Considered the arguments submitted by the counsel for the parties and perused the record on the file. Before adverting upon the arguments submitted by the counsel for the parties, it is imperative to give a brief resume of the facts which have culminated into the filing of the present revision. The facts are as under:

          The complaint came to be filed in the  Court of ld.CJM on 15-02-2010 by the father of one Wamiq Farooq, alleging therein that on 31-01-2010 his son, who was a student of seventh standard, had left for Gani Memorial Stadium for playing the game of cricket. Boys found the ground wet as such they preferred to play the game of Carom. During this period at about 4:30 PM, suddenly a police party appeared on the scene, and passed by. One of the police personnel came down the vehicle and fired tear smoke shell from a distance of about 30 feet directly on the head of his son Wamiq Farooq. The tear smoke shell hit the posterior part of the head of his son, resulting into his son felling on the ground. People around took him to hospital at SKIMS but his son had expired by the time he could be shifted to hospital. The persons who witnessed the occurrence had told the complainant that they had seen the police personnel firing tear smoke shell after getting down from the police vehicle.  The matter was reported to the police, who refused to take cognizance into the matter. He was told by the police concerned that the matter was already under their consideration and they were looking into the matter appropriately. Since the matter relating to the death of his son was not being properly investigated, it made him to approach the Court below for initiating action against the culprits and desiring the Court to direct the police concerned to take action against accused for commission of offence under section 302 RPC.

          On receiving complaint on 15-02-2010, the Court below forwarded it to Senior Superintendent of Police, Srinagar for necessary action in accordance with law. The report was submitted by Senior Superintendent of Police, Srinagar on 20-02-2010, which informed Court below that the matter pertaining to the occurrence was already under investigation of the police as case FIR No.12/2010 for offences under sections 307, 148, 149, 336, 353 RPC has been lodged at Police Station, Nowhatta. The facts unravelled in FIR suggested that some miscreants had pelted stones at the police party deployed for law and order duties and because of the heavy stone pelting and that the miscreants had tried to set ablaze the police vehicle bearing registration number JK02P-6912, the police party had to resort to tear smoke shelling. Later on it was found that one person named Wamiq Farooq had received injuries and later on had succumbed to injuries at SKIMS.

This report submitted by Senior Superintendent of Police, Srinagar was under consideration of Court below when exactly similar matter was brought for the consideration of Court below on 27-03-2010 as “composite application and complaint”.  This time court below opted to treat the complaint in terms of section 190 Cr.P.C. Statements of complainant and two of his witnesses were recorded on oath on 30-03-2010. Subsequently, Court below passed an order on 11-05-2010 ordering postponement of process against the accused and directing a detailed enquiry in terms of section 202 Cr.P.C by the Judicial Magistrate. Enquiry was directed to be conducted by learned Special Judicial Magistrate (Passenger Tax & Electricity) Srinagar. The report along with the record of enquiry was submitted by the learned Judicial Magistrate on 26-11-2010. There after Court below, however, passed another order on 05-02-2011 directing the Inspector General of Police, Kashmir to constitute a Special Investigation Team (SIT) comprising of at least three Officers of known professional competence and integrity headed by an Officer of the rank of Superintendent of Police, to investigate into the matter as to 5 aspects stated in the order. The order came to be challenged in the Revision Petition before learned Sessions Judge, Srinagar. Learned Session judge was pleased to uphold the order of ld. CJM. Though both orders were challenged before the Hon’ble High Court but the Hon’ble High Court upheld the orders of the ld.CJM and that of the Court of learned Sessions Judge, Srinagar. Matter was further taken to the Hon’ble Supreme Court of India in Special Leave Petition. The Hon’ble Supreme Court in its order dated 19-03-2012 entertained the petition for the limited aspect pertaining to the direction of learned Sessions Judge; Srinagar directing registration of fresh FIR, said direction was stayed in the order of Hon’ble Supreme Court.            

          The magistrate after conducting the enquiry submitted report based on the statements of witnesses recorded, wherein, he observed that the situation in the area on day of occurrence was normal and everybody was involved in the daily activities as a shopkeeper situated near the place of occurrence was also open. At 4 to 5 PM a white gypsy from police station Nowhatta came on spot carrying some police personnel on the link road near Gani Memorial Stadium. One of the police personnel without any provocation fired a tear smoke shell at the range of thirty feet on the Wamiq Farooq who was walking on the link road after playing Carom with other boys. Some of the witnesses stated that the shell was fired by Abdul Khaliq Sofi who belongs to police station Nowhatta having his name        plate on his uniform. In the statements of witnesses recorded by the Judicial Magistrate, witnesses brought the circumstances that there was no stone pelting, it was calm prevailing around, Wamiq Farooq was returning with other boys after playing Carom, a police Gypsy carrying Police Personnel came all of sudden, one person alighted down the vehicle and fired a tear smoke shell, causing head injury to Wamiq Farooq.

This evidence recorded by Judicial Magistrate was further probed after direction by ld. CJM whereby, by virtue of the order dated 05-02-2011, the court directed the investigation to be conducted by the SIT for investigating the following aspects:

1.                             To examine the witnesses/persons claiming to have witnessed the incident with respect to points of firing of tear smoke shell and that of it’s hitting the victim, individually as well as collectively.

2.                             To draw the possible route (whether straight or parabolic) of the shell after being launched in with the aid of ballistic expert.

3.                             To study the actual range and by drying grass of the possible projectiles of the shell by testifying the same and also see the possibility of injury as seen on the deceased with the help of Doctor.

4.                             To arrest and interrogate the accused person(s), if necessary.

5.                             To investigate any other respect which is otherwise expedient to do in the interest of justice and fair play?

           The SIT was constituted under the orders of the Inspector General of Police, Kashmir Zone, Srinagar; SIT conducted the investigation and submitted a detailed report. The SIT recorded the statements of civilian witnesses and the Police personnel as well.  That apart the SIT conducted the exercise of test firing of tear smoke shells with the help of Ballistics Expert from Forensic Science Laboratory, obtained the medical opinion from the Doctors pertaining to the death of Wamiq Farooq (as reported In the Post-mortem Report), analyzed the ground situation, prepared the site map and also noticed the surrounding circumstances pertaining to the occurrence. The SIT gave its conclusion in paragraph (K) as under:

         “From all the relevant facts in statements of witnesses it can be concluded that on the day of incident there was  stone pelting going on in the area and police party entered the area surrounding Gani Memorial Stadium to control the situation. The gypsy in which Nafri was boarded was stopped near Masjid and the police party disembarked in order to chase the stone pelters and fired tears smoke shell. At the same time, the death of the boy named Wamiq Farooq was reported which may have been due to fall from the surrounding wall of Gani Stadium or the death could have been caused by tear smoke shell itself. However the police action has been done in due course and as per the situation on the ground without prejudice or ill will.”                       

          Number of witnesses in their statements indicted ASI Abdul Khaliq Sofi to be the person responsible for firing of tear smoke shell with his Tear Gun. The witnesses pointed out that Tear Gun was aimed at the boy who had received injury from the tear smoke shell so fired. Another account given by police personnel pointed out to firing of tear smoke shell by SPO Mohammad Akram with his Tear Gun. Although the evidence does not conclusively determine as to who had actually fired the tear smoke shell, nonetheless the said two persons were suspected of firing of tear smoke shell, and  strong circumstances existed to suggest that one of them had fired tear smoke shell.

          After considering the report submitted by Magistrate and also by SIT the Ld. CJM observed that the test firing of tear smoke shells, coupled with the statements of eyewitnesses as recorded by the SIT, does not rule out the possibility of the tear smoke shell to have been recklessly fired by the said two persons, aiming at the persons running helter-skelter after pelting stones. Even the evidence collected by the SIT indicates that the stone pelters were chased by the police party and tear smoke shell was fired to disperse them.

          The ld. CJM concluded with the observation that the circumstances as available in the record of investigation conducted by the SIT, do indicate that this was an episode of reckless firing of tear smoke shell by the police personnel, while they had tried to disperse the stone pelters. The person of ordinary prudence, the police personnel using the Tear Gun also being so, are in normal course expected to know the consequences of reckless firing of tear smoke shells on the mob. This has the potential of causing such injuries which in the ordinary course would be sufficient to cause death of a person who is hit by such tear smoke shells.

           Therefore, from the apparent perusal of evidence collected by the Judicial Magistrate in enquiry under section 202 Cr.P.C and the evidence collected by the SIT, such circumstances were spelled out  which prima facie indicated to availability of evidence which pointed out to the culpability of ASI Abdul Khaliq Sofi and SPO Mohammad Akram. As court of ld. CJM observed that there was sufficient ground to proceed against said two persons namely ASI Abdul Khaliq and SPO Mohammad Akram, as the circumstances collectively pointed out to strong probability of commission of offence by them so           Accordingly, ld. CJM took the cognizance in the complaint and process was directed to be issued against the said two accused requiring them to attend the Court.

After the ld.CJM took the cognizance in the matter and issued the process against the petitioners, the petitioners challenged the order of CJM by way of the present revision petition.

After hearing the rival contentions of the counsel for the parties and after considering the facts and circumstances involved in the case five questions/issues crop up for consideration which require critical analysis so as to come to the conclusion as to whether the impugned order has been passed rightly or wrongly and therefore, would stand the challenge the test of present revision or collapse. The questions/issues which crop up for consideration can be formulated and summarized as under:

i)  Whether the order passed by the Ld. CJM is an interlocutory        order in nature and as such the revision will not lie.

ii)  Whether the sanction as envisaged under Section 132 Cr.P.C for launching of the prosecution was necessary or not;

iii)   Whether learned CJM has fallen in error in entertaining the      complaint after the first complaint was forwarded to police    under Section 156(3) Cr.P.C;

iv )    Whether the Ld. CJM should not have taken the

           cognizance in the matter without sanction as envisaged           under Section 197 Cr.P.C;

v)    Whether there was no material available before the Ld. CJM     on the basis of which he could have taken the cognizance     and could have issues the process against the petitioners.

In so far as the 1st question relating to the fact, as to whether the impugned order is interlocutory in nature or not, it has been submitted by the counsel for the respondent/complainant that the order of Ld. CJM  in issuing  process and taking cognizance is an interlocutory in nature as such, the revision is not maintainable, whereas on the other hand, it has been contended by the petitioners the order of Ld. CJM in issuing the process against the petitioners and taking the cognizance is not interlocutory in nature as such, the revision is maintainable.

In case where question arises as to whether an order is interlocutory in nature or not as such revision will lie or not the  safe test is that if the contention of the petitioner who moves the superior Court in revision, as against the order under challenge, is upheld, would the criminal proceedings as a whole culminate? If they would, then the order is not an interlocutory order in spite of the fact that it was passed during any interlocutory stage. In the present case, if the contention of the present petitioners in respect of the order taking cognizance and issuing process is upheld the proceedings in this instant case would come to an end, then the order issuing process cannot be said to be an interlocutory order even though it may have been passed at an interlocutory stage.

In order to support my contention I have laid my hands on the judgment cited as Bhaskar Industries Ltd. v Bhiwani Denim & Apparels Ltd. reported in (2002) Mh.L.J 81, wherein, reference has been made to various judgments passed by the Hon’ble Supreme Court  in a number of case, the relevant Paras  i.e.  Para Nos. 11, 12, 13, 14, 15, 16, 17, 19, 21, 22, 23 and 24.  For resolving the controversy with regard to the question regarding maintainability of this instant revision petition are extracted and reproduced here under

11. In the case of Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Anr. reported in 2002 (1) Mh.L.J. 81, in relation to the powers of revision, the Supreme Court has observed that the interdict contained in Section 397(2) of the Code of Criminal Procedure is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at an interlocutory stage. The Supreme Court laid down that the safe test is that if the contention of the petitioner who moves the superior Court in revision, as against the order under challenge, is upheld, would the criminal proceedings as a whole culminate? If they would, then the order is not an interlocutory order in spite of the fact that it was passed during any interlocutory stage. In the present case, if the contention of the present applicants in respect of the order issuing process is upheld the proceedings in the said case would come to an end, hence, in the light of the above decision, the order issuing process cannot be said to be an interlocutory order even though it may have been passed at an interlocutory stage.

12. Useful reference may also be made to the decision of the Supreme Court in the case of K.K. Patel and Anr. v. State of Gujarat and Anr. . In the said case, a private complaint was filed against the appellants before the Court of Metropolitan Magistrate. The learned Magistrate issued process against the appellants. The appellants filed an application for discharge. The objection which was raised before the learned Magistrate was that no sanction was obtained to prosecute the accused. The said application came to be dismissed. Thereafter, the appellants filed revision before the Sessions Court wherein two grounds were raised, the first was that no sanction was obtained to prosecute the accused persons and the second objection was that no complaint could be filed after one year from the date of the act complained of. The learned Sessions Judge upheld the objections of the appellants i.e. accused persons and the process issued by the trial Court was quashed by the Sessions Court. The said order was challenged before the High Court and the High Court set aside the judgment of the Sessions Court mainly on the ground that the Sessions Court should not have entertained the revision at all as the order challenged before it was only an interlocutory order. The Supreme Court has held in para No. 10 that the appellants were not stopped from canvassing on that additional ground also before the Sessions Court in revision as they were challenging therein the very order of issuance of process against them.

In para 11 the Supreme Court held that the view of the learned Single Judge of the High Court that no revision was maintainable on account of the bar contained in Section 397(2) of the Code, is clearly erroneous.

It is further observed that in deciding whether an order challenged is interlocutory or not, the sole test is not whether such order was passed during the interim stage but the feasible test is whether by upholding the objection raised by a party, it would result in culminating the proceedings. It is further observed in the said para that: “In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.”

13. In the case of Amarnath Vs State of Haryana and Anr., it has been held that the order of Magistrate issuing summons to the accused is not an interlocutory order. In respect of the Magistrate issuing process, the Supreme Court in para 10 has observed thus:

“So long as the Judicial Magistrate had not passed this order, no proceedings were started against the appellants, nor were any such proceedings pending against them. It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced, or that any right of theirs was not involved by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightaway was merely an interlocutory order which could not be revised.”

14. The question as to what is an interlocutory order came up for consideration before the Supreme Court in the case of Madhu Limaye v. State of Maharashtra . In the said case, the complaint was filed before the Court of Sessions. Cognizance of the offence was taken by the Court of Sessions. Being aggrieved thereby, the appellants preferred a revision before the High Court. The High Court rejected that said revision application on the sole ground that it was not maintainable in view of the provisions contained in Sub-section (2) of Section 397 of the Code of Criminal Procedure. In the case of Madhu Limaye the decision in the case of Amarnath (supra), was considered and the three-Judge Bench of the Apex Court in the case of Madhu Limaye in para 7 has re-affirmed the decision in the case of Amarnath on the point that the impugned order of the Magistrate was not an interlocutory order. Hence, the order of the High Court was set aside and the matter was remitted back for disposal on merits.

15. In the case of Madhu Limaye, the Supreme Court considered the very issue whether the revision against the order taking cognizance or issuing process or framing charge was maintainable. The Supreme Court observed that a bar has been put in the way of the High Court (as also of the Sessions Court) for exercise of the revisional power in relation to any interlocutory order. It is further observed in Para 10 that the order of the Court taking cognizance or issuing process is not an interlocutory order.

16. At this stage, the learned counsel for the applicants cited two more decisions in respect of his contention that the order of the Magistrate issuing process is an interlocutory order and hence, revision in respect of the same would not be maintainable. The said decisions are in the case of Poonam Chand Jain and Anr. v. Fazru and the decision of the Federal Court in the case of S. Kuppuswami v. The King. As far as the case of Poonam Chand is concerned, the main question which arose for consideration was whether a second complaint could be filed. After holding that a second complaint could be filed in exceptional circumstances in Paras 9, 10 and 11 the decisions in the case of Adalat Prasad and Subramanium Sethuraman have been discussed. In these paras the powers of the “Magistrate” in respect of reviewing his own order issuing process have been discussed and not the powers of the Sessions Court to entertain a revision against the order of the Magistrate issuing process. It is true that the words “interlocutory order” has been used but applying the principles in the case of Commissioner of Income Tax v. Sun Engineering Works referred to in para 9 above, it cannot be said that paras 9 to 11 of the judgment in the case of Poonamchand lay down the ratio that a revision against an order issuing process is not maintainable.

17. Thereafter, in Para 12 of the decision in the case of Poonamchand, various decisions of the Supreme Court have been referred to on the point whether the order issuing process is an interlocutory order and hence a revision against the same was maintainable or not before the Sessions Court. Reference has been made to Rajendra Kumar Sitaram Pande v. Uttam and Anr. and K.K. Patel and Anr. (Supra) wherein it is held that such an order is not interlocutory and hence a revision in respect of the same is maintainable. It is pertinent to note that nowhere in the case of Poonamchand has it been observed that the law laid down in these two decisions is erroneous or incorrect or requires reconsideration.

19. It may be stated here that from the observations of the Apex Court in paras 10 and 13 in the case of Madhu Limaye, it is clear that the revisional power was being considered in respect of the High Court as well as the Sessions Court. Thus, from the decision in the case of Madhu Limaye, it is clear that an order issuing process is not an interlocutory order and hence, revision would be maintainable against the same. As far as the case of Poonamchand is concerned, the learned counsel for the applicants was unable to point out any para or sentence therein, wherein it has been specifically held or observed that no revision is maintainable in respect of an order of the Magistrate issuing process. On the other hand in the case of Madhu Limaye it has been held that such an order is not an interlocutory order and revision in respect of the same would be maintainable. In any event, the decision in the case of Madhu Limaye having been rendered by a larger Bench than the one in the case of Poonamchand, the said decision would obviously prevail.

21. Going Back to the issue as to whether an order is an interlocutory order or not, in a majority decision by a Bench of five Judges of the Supreme Court in the case of Mohan Lal Magan Led Thacker v. State of Gujarat , four tests were culled out in respect of whether a judgment or order can be said to be final or interlocutory. One of the tests is that “if the order in question is reversed would the action have to go on?” If due to the order being reversed, the action does not go on it would be an interlocutory order. The Apex Court in the case of Madhu Limaye has observed that applying the test in the case of Mohan Lal to the facts of the instant case, it would be noticed that if the plea of the appellant succeeds and the order of the Sessions Judge is reversed, the criminal proceeding as initiated and instituted against them cannot go on. Thus, an order issuing process would not be ‘an interlocutory order. After considering the decision in the case of Kuppuswami, Their Lordships in the case of Madhu Limaye have referred to the earlier decision of the Constitution Bench of the Supreme Court in the case of Ramesh and Anr. v. Seth Gendalal M. Patni and Ors., AIR 1996 SC 1445 wherein in relation to what is the final order, it is observed as under:

“The finality of that order was not to be judged by co-relating that order with the controversy in the complaint, viz. whether the appellant had committed the offence charged against him therein. The fact that that controversy still remained alive is irrelevant.”

22. As observed earlier, after considering the case of Kuppuswami and various other decisions of the Supreme Court, it has been held in the case of Madhu Limaye that an order issuing process or summons is not an interlocutory order.

23. In addition to the decisions discussed above, useful reference may also be made to the case of Rajendra Kumar Sitaram Pande and Ors. v. Uttam and Anr. The main question before the Supreme Court was whether the order of Magistrate directing the issuance of process is an interlocutory order or not. The said question was directly in issue in the said case. The said issue was decided giving detailed reasons. The Supreme Court held after giving detailed reasoning that the order of Magistrate directing issuance of process is not an interlocutory order and the revisional jurisdiction under Section 397 could be exercised against the same. In view of the above observations, it is clear that an aggrieved person, against whom process has been issued, can prefer a revision against the order of the Magistrate issuing process. Thus, it is clear that the applicants have an efficacious remedy of preferring a revision against the order of the Magistrate issuing process.

24. From various decisions of the Supreme Court discussed above it is quite clear that an order issuing process is not an interlocutory order and hence a revision can be preferred against such an order. In these decisions, the said issue was specifically considered and the said issue was decided giving detailed reasoning. Thus, it is clear that there is a specific provision in the Code in Section 397 for redressal of the grievance of the accused against which process has been issued.

          In the authorities cited supra, it has been held by the Hon’ble Supreme Court that the order of Magistrate taking cognizance or issuing process is not an interlocutory order, as such, the revision is maintainable. So in view of the law laid down by the Supreme Court in the number of cases cited hereinabove, it is manifestly clear that the order whereby the Magistrate takes cognizance and issues process is not  interlocutory order in nature as such, the revision is maintainable. So in view of the observations and the law laid down by Hon’ble S.C. the plea raised by the counsel for the respondent/complainant that present revision is not maintainable is not sustainable so as such, his plea is rejected.

          In so far as the 2nd question which relates to the sanction under Section 132 Cr.P.C required for launching the prosecution against the petitioner is concerned, it has been contended by the counsel for the petitioners that since the petitioner were discharging their duties and were dispersing the rioters who had assembled to threaten the security of the State and damage the public property so sanction was required before launching prosecution against them.

          It has been contended by the counsel for the respondent that on the fateful day when the small boy was killed there was no rioting going on and the deceased was playing carom board along with other boys but the petitioners suddenly appeared on the scene and without any provocation fired a teargas smoke shell whereby, the small boy got ultimately killed.

          As far as the provisions of Sections 127 to 132, which fall under the Chapter-IX are concerned, the section 127 relates to the powers of Magistrate to command police to disperse the members of unlawful assembly who are likely to cause disturbance to the public peace and  section 128 pertains to the use of force to disperse the unlawful assembly, which provides that if any unlawful assembly upon being so commanded, does not disperse, and conducts itself in such a manner as to show a determination not to disperse, the  executive  magistrate or the officer-in-charge of police station may proceed ahead to disperse such unlawful assembly by force and if necessary for dispersing such assembly may arrest or confine the persons who are  found part of the unlawful assembly.

          Section 129 deals with the use of military force and it provides that if any assembly cannot be otherwise, dispersed, and if it is necessary for the public security that it should be dispersed, the executive magistrate may cause it to be dispersed by military force provided that the sanction of the Govt. shall be obtained within the reasonable time for that purpose when practicable.

          Section 130 deals with the duty of officer commanding troops required by Magistrate to disperse assembly. It provides that when the Executive Magistrate determines to disperse any such assembly by military force, he may require any commissioned or non-commissioned officer in command of any soldiers in the army to disperse such assembly by military force and to arrest and confine such person forming part of it. It further provides that every such officer shall obey such requisition in such a manner as he thinks fit.

          Section 131 deals with the power of commissioned military officer to disperse assembly and it provides that when the public security is manifestly endangered by any such assembly, and when no executive magistrate can be communicated with, any commissioned officer of the army may disperse such assembly by military force and may arrest and confine any persons forming part of it.

          Then Sec. 132 deals with the protection against prosecution for act done under this Chapter (IX) it further provides that no prosecution against any person for any act purporting to be done under this Chapter shall be instituted in any Criminal Court, except with the sanction of the Govt.

          As far as the provisions of Chapter IX are concerned, the   conjoint reading provides that any unlawful assembly can be dispersed by using the force to the extent of arresting and confining the persons who form part of such unlawful assembly. It further provides that in order to disperse the unlawful assembly the orders are necessarily to be given by the executive magistrate or by the Officer-in-charge of the Police Station concerned. But in so far as the facts of the present case are concerned the allegation against the petitioners is that while the deceased along with other boys was playing Carom board, there was no rioting going on and the deceased was not the member of any unlawful assembly, the petitioners appeared on the scene and fired teargas smoke shell without any provocation and without any legal justification with the result the deceased was killed. Though it has been contended by the petitioners that the petitioners were discharging their official duties and dispersing the mob of rioters who had endangered  the public property and caused threat  to the security of the State, but the petitioners have failed to show or prove that any authority or any sanction was given by the executive magistrate or by the officer-in-charge of the police station to use the force which has been used by them in firing of teargas smoke shell whereby the boy got killed.

          The provisions of Chapter IX nowhere provide that police personnel can use any weapon which has the effect of taking the precious live of any one. The chapter IX only provides for using the force to the extent of arresting and confining the persons forming part of the unlawful assembly but not using fire arms to disperse or kill. It further provides that any police personnel can use the force but that too with the sanction and authority of the magistrate or the officer-in-charge of the Police Station concerned. In so far as the facts of the present case are concerned it has no where been shown or established either from the magisterial enquiry or by the SIT that before using the fire arms the sanction/permission was given by the executive magistrate or the officer-in-charge of the police station to use the fire arms or fire the tear smoke shell. If the tear smoke shell was fired by the petitioners without any authority of law then their act of firing tear smoke shall does not fall within the ambit of discharge of their official duty. More so when it is revealed clearly from the magisterial enquiry and to some extent from the report of SIT that on the eventful day no rioting was going on at the time the fire smoke shell was fired by the petitioners. Further more, the protection under Section 132 can be only claimed, if the act was done in the discharge of the official duty but as far as the enquiry conducted by the Magistrate is concerned, it is clearly revealed that there was no rioting at the time the fire smoke shell was fired and as the petitioner were suspended for their misconduct, this fact  lends further credence to the fact that petitioners misused not only their position but also exceeded their powers and in a state of frenzy fired tear smoke shell only to take a precious life of teen aged small boy of class 9th standard, so as such, the petitioners cannot claim protection as envisaged under Section 132 Cr.P.C.

          Further more, it has been contended by the petitioners that under the “Jammu and Kashmir Disturbed Areas Act, 1997” the entire Valley has been declared as disturbed area and once the entire Valley has been declared as disturbed area, the powers have been conferred upon the police to fire upon the persons contravening certain orders, but as far as the section 4 of the Disturbed Areas Act is concerned, it provides that under the disturbed area any Magistrate or Police Officer not below the rank of Inspector or sub-Inspector in case of the Armed Branch of the police, may, if he is of the opinion that it is necessary so to do for the maintenance of public order, after giving such due warning, as he may consider necessary, fire upon, or otherwise use force even to the causing of death, against any person who is indulging in any act which may result in serious breach of public order or is acting in contravention of any law or order for the time being in force, prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of fire arms, ammunition or explosive substance.

          The language of Section 4 gives powers to the Magistrate and the Police officers not below the rank of Inspector or Sub Inspector to use force or authorize them to fire upon or use powers even to the causing of death. The powers are given to the Magistrate and the Police officers not below the rank of Inspector or Sub Inspector to use force or authorize them to fire upon or use powers even to the cause death.  But this protection cannot be availed by the petitioners because one of the petitioners is only ASI in rank while as, the other petitioner is a constable so even if it is presumed that entire Valley has been declared as disturbed area and powers have been conferred upon the police personnel to use force, but as far as the language of Section 4of the Act is concerned, the force and power even to the extent of firing upon the person to the causing of death can be availed only by the Magistrate or the police officer not below the rank of Inspect and Sub Inspector. Since the petitioners are ASI and Constable so the protection given under Section 4 of the Act cannot be availed by the petitioners.

Further more the allegations against the petitioner is that on the fateful day i.e. on 31.10.2010 the petitioners without any provocation fired a teargas smoke shell whereby, the deceased was killed. The act of the petitioners in killing the deceased was not even owned by the Govt. or high ups of petitioners. Their act of firing a tear smoke shell which killed a small boy was even condemned by their high ups as well. Their act of firing a tear smoke shell was even termed and regarded as misconduct by authorities in police department, which forced the police authorities to suspension them from their services, as is evident from the order passed by the higher authorities of police whereby, the petitioners were put under suspension. The order by virtue of which one of the petitioners was suspended reads as under:

DISTRICT   POLICE   OFFICE   SRINAGAR

ORDER NO. 220/2010       

Dated: 31.10.2010

 

ASI, Ab. Khaliq No. 350/S of P/s Nowhatta is hereby placed under suspension with immediate effect for his misconduct during a law and order problem in his jurisdiction on January, 31st 2010. The suspendee officer is allowed to draw subsistence allowances as admissible under rules and will deposit his Govt. articles in DPL Store. He shall remain attached with DPO Srinagar and shall face a departmental enquiry to be conducted by SP Hqr. Srinagar

”Sd/Sr. Superintendent of Police,

                                                Srinagar.

 

          No: – Estt/10/S-1/1474-80 Dated 31.01.2010

 

Copy to the:

1.     Inspector General of Police Kashmir Zone Srinagar

2.     Dy. Inspector General of Police CKR Srinagar

……. For favour of information

3.     Superintendent of Police City North/Hqr Srinagar

4.     SDPO Khanyar/Dy SP DAR DPL. Srinagar

5.     SHO P/s Nowhatta/LO DPL/DA upper/posting/OBN/file…all for inf. And necessary action   

 

By passing the order of suspension against the petitioners on the grounds of misconduct during the law and order problem establishes the fact that the petitioners fired tear smoke shell without any cause, provocation and as such the illegal act done by the petitioners in firing a teargas smoke shell was not done by them under the colour of their official duty. In case the accused/petitioners had acted under the colour of their official duty and had they fired the teargas smoke shell in the discharge of their duty then they should not have been suspended. By suspending the petitioners a strong and un-rebutted presumption can be raised that the petitioners had acted in breach of their authority and that is the reason that they were suspended.

From the record it is manifestly clear that the initially the  complaint was lodged by the complainant before the Ld. CJM on 15.02.2010 which was forwarded by the Ld. CJM to the police for initiation of action under Section 156(3) Cr.P.C. thereafter, the 2nd complaint was filed by the petitioners before the Ld. CJM on 27.03.2010. On the date the complaint was lodged, the petitioners were already suspended from their services and as the petitioners were suspended from their services on the ground that they had exceeded their powers and had committed misconduct in the discharge of their official duties, which had established the fact they had misused their power and position and had acted in breach of their official duty, so the protection under Section 132 Cr.P.C was not available to them and could not have been extended to them. As the petitioners had not acted in accordance with the law and as the action taken by them was not  done under the colour of their official duty or in the discharge of their official duty, so no sanction  was required at the time prosecution was launched against them, so in view of the attending facts and circumstances and discussion made hereinabove, the plea raised by the petitioners that that no prosecution could have been launched against without obtaining sanction under Section 132 Cr.P.C is not sustainable.

So far as the 3rd question relating to the matter that the Ld. CJM had earlier forwarded the complaint to the police under Section 156(3) Cr.P.C, on which action was taken by the police, so the 2nd complaint as such was not maintainable. In so far this question is concerned, it is to be borne in mind that investigation contemplated in Chapter XII of the Code can be commenced by the police even without the order from the Magistrate. It does not mean that when the Magistrate orders investigation under section 156(3), it would be a different kind of investigation. Such investigation in all cases has to end up only with the report contemplated in Section 173 of the Code. But in cases where a Magistrate is not inclined to make any such order where he intends to or propose to take cognizance of the offence himself for the purposes of ascertaining as to whether he should proceed in the matter or not, the enquiry is ordered and if the report of enquiry prima facie makes out a case then discretion/ powers lie with the Magistrate to proceed in the matter and take cognizance under the relevant provisions of the Code. For the purposes of conducting investigation under section 202 Cr.P.C, a Magistrate is not required to direct only a police officer or police Station to conduct the investigation. Such an investigation can be made by any other person who may not be holding any post or who may not be a police officer. The purpose of holding such enquiry is to help the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words of Section 202(1) Cr.P.C i.e. “or direct the investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding”. Section 156 Cr.P.C falling within Chapter XII deals with powers of police officer to investigate cognizable offences, whereas, investigation envisaged under section 202 Cr.P.C contained in Chapter XV is different from the investigation contemplated under section 156 of the Code. Chapter XII contains the provisions relating to information to the police and their powers to investigate. Whereas, Chapter XV which contains Section 202 Cr.P.C deals with the provisions relating to the steps which a Magistrate has to adopt while and after taking cognizance of an offence on a complaint. Provisions of above two Chapters deal with two different facets all together. Though there could be a common factor i.e. complaint filed by a person. Section 156 deals with the powers of the police officer to investigate cognizable offences. Whereas, section 202 Cr.P.C refers to the powers of Magistrate to direct investigation by a police officer or any other person. But the investigation envisaged under Section 202 Cr.P.C is different from the investigation contemplated under section 156 of the Code. The purpose of conducting investigation under section 202 Cr.P.C is to remove the doubt which a Magistrate may have in his mind while deciding as to whether or not process should be issued or cognizance taken, after the report of investigation is filed, the powers lie with the Magistrate to decide as to whether process should be issued or not.

Now coming to the facts of present case where the ld. CJM decided to direct magistrate to make the investigation under section 202 Cr.P.C. no illegality appears to have been committed by the ld. CJM.  As the Magistrate was directed to make the investigation under section 202 Cr.P.C, so the magistrate was only required to make the investigation under section 202 Cr.P.C and submit the report. After the filling of the report the powers to proceed any further in the matter lies with the court only and if on the basis of report court is satisfied that any offence has been committed by the accused the process could be issued against him under section 204 Cr.P.C after taking the cognizance but if on the basis of report it is found by the court that no case is made out against the accused then court has powers to dismiss the complaint under section 203 Cr.P.C.        

          From the language of the above quoted chapters it is manifestly clear that once the complaint has been filed before a Magistrate, he has the powers either to conduct the enquiry by himself or direct the enquiry to be conducted by any officer either the police officer or any other person. As the Ld. CJM directed the enquiry to be conducted by the Magistrate so there was no illegality committed by the Ld. CJM in directing the enquiry to be conducted by the Magistrate. After the report was submitted by the Magistrate, it was observed by the Ld. CJM that the enquiry conducted by the Magistrate is not clear on certain points and accordingly the I.G Police was directed to constitute a Special Investigating team (shortly SIT) to get certain matters investigated.

In his order dated 5.2.2011 it has been observed by the Ld. CJM that the investigation in the matter has not been properly conducted and some factual aspects are required to be investigated scientifically and objectively before issuing the process. In order to ascertain some of the facets scientifically and objectively, the I.G police was directed to constitute a team of Professional competent Police Officers headed by an officer of the rank of S.P to get some matters investigated, such as 1) To examine the witnesses. 2) to draw the possible route of the shell, 3) to study the actual range, 4) to arrest and interrogate the accused and 5) to investigate any other aspect of the matter.

Accordingly, in pursuance to the directions passed by the Ld. CJM the SIT was constituted and the SIT accordingly conducted the investigation/enquiry. By constituting the SIT no illegality appears to have been committed by the ld. CJM. The Ld. CJM wanted to clear some points scientifically and objectively which could not have been cleared by the Magistrate and such points could be cleared by the experts only and accordingly the SIT conducted the enquiry and examined experts and also examined the eye witnesses and other persons acquainted with the facts and circumstances of the case and the report was accordingly submitted. After considering the report filed by the Magistrate as well as the SIT, the Ld. CJM framed his opinion that there is sufficient material on the file, which leads to the presumption that the petitioners have committed the offence and accordingly the process has been issued against them. By ordering the magisterial enquiry or enquiry by the SIT, no illegality has been committed by the court below, so as such, the plea raised by the petitioners that an irregularity has been committed by the court below by directing the enquiry through Magistrate or SIT, is not sustainable.

In so far the 4th question regarding the sanction under Section 197 is concerned, it has been contended by the counsel for the petitioners that the court below had no authority or competence to issue the process against the petitioners because the petitioners are the public servants and are not removable from their services without the sanction of the Govt. so before process could have been issued against them, the sanction was necessarily to be obtained from the Govt. It has been contended by the counsel for the petitioners that the sanction to take cognizance is not only required at the post cognizance stage but the sanction is required even at the pre cognizance stage. It has been contended that once the complaint was filed against the petitioners, the court below was required to ascertain as to whether the sanction has been obtained or not, but as sanction had not been obtained by the complaint, at the time  complaint was filed before the Ld. CJM, the Ld. CJM should not have  entertained the complaint but should have directed the complaint to first obtain the sanction from the Govt. and then only file the complaint, but as the Ld. CJM has not only entertained the complaint without sanction, but issued the process and taken cognizance without obtaining sanction from the competent authority, so the order passed by the Ld. CJM as such, is to be declared as null and void and non-est in the eyes of law.

In so far the question of sanction as provided under Section 197 Cr.P.C is concerned it provides that protection given under Section 197 Cr.P.C is to protect responsible public servants against the possible vexatious criminal proceedings for offences alleged to have been committed by them while acting or purporting to act as public servants. The policy of legislature in enacting this section is to afford adequate protection to public servants, to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without any reasonable cause. This protection has certain limits and is available only when the alleged act is done by the public servants in the discharge of his official duty and is not merely a cloak for doing the objectionable act. The use of expression “official duty” implies the act or omission must have been done by the public servants in the course of his service and that it should be done in the discharge of his duty. This section does not extend its protective cover to every act or omission committed by the public servants in service but restrict its scope and operation to only those acts or omissions which are done by the public servants in the discharge of his official duty. There must be a reasonable connection between the alleged act and the discharge of official duty and then only his act can come under the protective cover of Section 197 Cr.P.C .

The question to examine as to whether the sanction is required or not under the statute has to be considered at the time of taking cognizance of the offence and not during the enquiry or investigation. The performance of the public duty under the colour of duty cannot be a camouflage to commit a crime. The public duty may provide a public servant an opportunity to commit crime and such issue is required to be examined by the sanctioning authority or by the court. The official capacity may enable the public servants to fabricate the record or misuse his powers; such activities cannot be integrally connected or interlinked with the crime committed in the course of discharge of official duty. The acts as done by the public servant or the act purporting to have been done by the public servant in discharge of his official duty, cannot as a matter of course be brought under the protective umbrella or requirement of sanction, same has been held in the authorities cited as AIR 1968 S.C 1232, (2009) 3, SCC 398, AIR 1997 S.C 2120. It has further been held that the protection given under Section 197 Cr.P.C. is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. The sanction of the appropriate authority is necessary to protect a public servant from unnecessary harassment or prosecution. Such a protection is necessary as an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralizes the honest officer. However, performance of public duty under colour of duty cannot be camouflaged to commit a crime. The public duty may provide such a public servant an opportunity to commit crime and such issue is required to be examined by the sanctioning authority or by the court. Thus, all acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of requirement of sanction. As has been held in the authorities cited as  AIR 1968 SC 1323;  AIR 1978 SC 1568;  (1993) 3 SCC 339; AIR 1996 SC 204;  AIR 1997 SC 2102; , AIR 2009 SC 1404).

           In fact, the issue of sanction becomes a question of paramount importance when a public servant is alleged to have acted beyond his authority or his acts complained of are in dereliction of the duty. In such an eventuality, if the offence is alleged to have been committed by him while acting or purporting to act in discharge of his official duty, grant of prior sanction becomes imperative.  Hon’ble Supreme Court in a case cited as   State of Orissa & Ors. Vs Ganesh Chandra Jew, AIR 2004 SC 2179, while dealing with the issue held as under:-

 “….. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant.”

It has been contended by the complainant/respondent that the accused despite being  government official are not entitled for protection under Sec 197 Cr.P.C whereas on the other hand it has been contended that their act of firing a tear smoke shell is covered by the protective layer provided under Sec. 197 Cr.P.C, so the question which crops up for consideration is whether the alleged act committed by them  was within the colour of their official duty as would call for sanction before prosecuting them or the act was not  under the colour of their official duty and would not attract provisions of 197 Cr.P.C.

So far public servants are concerned the taking of cognizance of any offence, by any Court, as observed by Hon’ble SC in a case cited as 2004 STPL (LE) 33191 SC,  for prosecution against public servants is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied.

The pivotal issue i.e. applicability of Section 197 of the Code needs careful consideration. In Bakhshish Singh Brar v. Smt. Gurmej Kaur and another (AIR 1988 SC 257), Hon’ble Supreme Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows:-

“It is necessary to protect the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported to discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 197 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasized that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence.”

The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objection-able act. If in doing his official duty, he acted in excess of his duty, but there is a reason-able connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty, if the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case.

Reference in this regard can be made with advantage to the case cited as to P. Arulswami v. State of Madras (AIR 1967 SC 776), wherein Hon’ble Supreme Court held as under:

“….It is not therefore every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code, nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.”

Prior to examining the merits of the case it may not be out of place to examine the nature of power which can be exercised by the Court under Section 197 of the Code and the extent of protection it affords to public servant, who apart, from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecutions. Section 197(1) and (2) of the Code reads as under:

“197. Prosecution of Judges and public servants.–(1) When any person who is Judge within the meaning of Section 19 of the Ranbir Penal Code or when any Magistrate, or when any public servant who is not removable from  his office save by or with the sanction of the State Government or the Government of India, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no Court shall take cognizance of such offence except with the previous sanction–

(a) in the case of persons employed in connection with the affairs of the Union, of the Government of India; and

(b) in the case of  persons employed in connection with the affairs of the State, of the Government.

(2) No Court shall take cognizance of any offence alleged to have been committed by the Ruler of a former India State except with the previous sanction of the Government of India.”

               The section falls in the chapter dealing with conditions requisite for initiation of proceedings i.e. if the conditions mentioned are not made out or are absent then no prosecution can, be set in motion.  So far public servants are concerned the cognizance of any offence, by any Court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, “no Court shall take cognizance of such offence except with the previous sanction”. Use of the words, ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred. That is the complaint, cannot be taken notice of. According to Black’s Law Dictionary the word ‘cognizance’ means “jurisdiction” or “the exercise of jurisdiction” or “power to try and determine causes”. In common parlance it means taking notice of. A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have committed during discharge of his official duty.

         Such being the nature of the provision the question is how should the expression, “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty”, be understood? What does it mean? “Official” according to dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha and others v. M. S. Kochar (1979(4) SCC 177), it was held: (SCC PP. 184-85, para 17):

“The words ‘any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, ‘it is no part of an official duty to commit an offence, and never can be’. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision.”

         Use of the expression, “official duty” implies that the act or omission must have been done by the public in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.

It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The Section has, thus, to be construed strictly, while determined its applicability to any act or omission in course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a restricted manner. But once it is established that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the Section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty and without any justification therefore then the bar under Section 197 of the Code is not attracted.

To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official has been explained by Hon’ble Supreme Court in Matajog Dobey v. H. C. Bhari (AIR 1956 SC 44) as:

“The offence alleged to have been committed (by the accused) must have some-thing to do, or must be related in some manner with the discharge of official duty. . . . there must be a reasonable connection between the act and the discharge of official duty; the act must bear, such relation to the duty that the accused could lay a reason-able (claim) but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.”

If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held official to which applicability of Section 197 of the Code cannot be disputed.

From the discussion made hereinabove, it is manifestly clear that the protection under Section 197 Cr.P.C can be extended to only those public servants who are not removable from the Services except with the sanction of the Govt. and the act purported to have been done by them must have been done in the discharge of their official duty. But in so far as the facts of the present case are concerned, it is alleged that on the fateful day the deceased was playing Carom board along with other boys and petitioners appeared on the scene of occurrence and without any provocation fired tear smoke shells whereby, the boy got ultimately killed. Apparently, it appears that the petitioners have exceeded their powers and their act of firing of teargas shells does not come under the purview of their official duties and even if it is presumed that the rioting was going on and the mob had gathered on spot to threaten the public security still then the petitioners were not required to open fire arms and fire teargas smoke shells that too without the permission of Executive Magistrate or the In charge Police Station concerned. Their act of firing smoke shells without any authority of law  does not come within the purview of discharge of their official duty, as such, the protective layer  under Section 197 Cr.P.C cannot be extended to the petitioners even if it is presumed that they are the public servants not removable from the services without the sanction of the government.

Though it has been contended by the counsel for the petitioners that the petitioners are public servants as such, not removable from the services without the sanction of the Govt. whereas on the other hand, it has been contended by the counsel for the respondent that the petitioners being the police officers of inferior rank do not come within the definition of public servants as such, the protective cover under Section 197 cannot be extended to them. From the record it is manifestly clear that the petitioner Abdul Khaliq  is of the rank of ASI whereas the other petitioner Mohd Akram is a constable and in so far the police rules are concerned , rule 335 provides that the ASI can be appointed or removed from the services by the DIG of Police whereas, the constable can be removed from the services by the S.P. as the police rules provide that the ASI and the constable can be removed from the services not by the Govt, but by the DIG Police and also by the S.P, so their services are not covered under Article 311 of the Constitution which provides that the public servant cannot be removed from the services unless sanction is obtained from the Govt., and as the petitioners are removable from the services by the DIG Police or SP police so the protection given under Section 197 Cr.P.C cannot be extended to the petitioners. Furthermore, as has been held in the authorities cited as 2003 Crl. L.J 2949 Punjab and Haryana, KLJ 1997 J&K page 220 and 2002 Crl. L.J3715 Delhi that the competent authority to remove the Sub Inspector and Assistant Sub Inspector from services is the Superintendent of Police who is their appointing authority, therefore, they are not entitled to the protection under Section 197 Cr.P.C.

As the petitioners can be removed from their services not by the Govt. but can be removed from their services by the DIG Police or S.S.P concerned so, the protection given under Section 197 Cr.P.C cannot be extended to them and even if  complaint has had been filed without seeking sanction under Section 197 Cr.P.C and even if the Ld. CJM has issued the process and taken the cognizance against the petitioners without sanction, his act of issuing process and taking cognizance as such, does not suffer from any illegality. No irregularity or impropriety has been committed by ld. CJM but impugned order has been order in inconformity with the provisions of law so the plea raised by the petitioners that the complaint is liable to be dismissed for want of sanction, is not sustainable.

Lastly, the 5th contention which has been raised by the petitioners that the Ld. CJM has acted illegally and has passed the impugned order in a mechanical manner because there was no material available on the file before the Ld. CJM, on the basis of which, he could have framed the opinion and taken the cognizance in the matter and issued process against the petitioners, so the impugned order is liable to be set aside.

Before adverting upon this issue it is to be analyzed as to what are the duties imposed on a magistrate by law when a complaint is filed and what material is to be considered by him and whether he is required to pass a detailed order when taking cognizance and issuing process against the accused is concerned.  

Ordinarily when a complaint is filed before a Magistrate he has to ensure that no person is compelled to answer a criminal charge unless the court is satisfied that there is prima facie case for proceeding against the accused. The responsibility imposed and confidence reposed by the legislature on and in Magistrate as to exercise of his discretion in dismissing the complaint or issuing process against the accused is very onerous and pious. He is to exercise this responsibility and confidence judicially and not arbitrarily keeping in view the object of administration of criminal justice viz. to save innocent persons from the clutches of unscrupulous complainants and put to trial real offenders to whom it is not easy to bring to book due to their unholy league with the police.

In S.Nihal Singh V. Arjan Das, 1983 Criminal Law Journal 777, it was observed that in deciding whether or not there is sufficient ground for proceeding against the accused or dismissing the complaint, the discretion vested in the Magistrate has to be exercised judicially. He is neither expected to play into the hands of the complainant and chew meekly what he is fed by the complainant nor is he expected to hold a brief for the accused and summon witnesses with a view to find out the defence of the accused, if any. He is neither a post office, nor automation and he is to exercise his jurisdiction as to the exigency of the situation demands, the only limitation being that he cannot convert the enquiry into a full scale trial. The Magistrate must apply his judicial mind to the materials on which he has to form his judgment.

In A. S. Nayal Vs Khem Chand 1983 ALL. C.C 264 explaining the duties of the Magistrates as to dismissal of complaint or issue of process against the accused it was observed that there is growing tendency on the part of mischievous litigants to file vexatious and frivolous complaints. Complaints for criminal misappropriation are filed against outstation accused. Complaints for defamation are filed. Complaints of civil nature are filed. Some of the complaints are filed solely for harassment. The purpose of a mischievous litigant is achieved when the accused are summoned. Some Magistrates act in a mechanical manner. It is time to sound a note of caution and apprise the Magistrates of their responsibility under the law. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding.

The legal position is that a Magistrate has to act like a reasonable and prudent person for satisfying himself prima facie if there is sufficient ground for proceeding. Where the Magistrate acts arbitrarily or ignores apparent absurdities and improbabilities of the version or acts upon intrinsically, untrustworthy self-contradictory evidence or acts in the absence of any legal evidence courts on a complaint filed illegally or vexatiously or without jurisdiction or without proper sanction or acts even when the complaint does not disclose any offence, there is no exercise of judicial discretion. For determining the question whether courts should proceed with the trial or not, the courts must be satisfied that there is sufficient ground for proceeding. The courts have to be on their guard to see that their process should not be abused for putting pressure on parties with a view of obtaining settlements of disputed questions.

He has to exercise this responsibility and confidence judicially and not arbitrarily keeping in view the object of administration of criminal justice viz. to save innocent while the law imposes duty on the magistrate to act reasonably and not arbitrarily and satisfy himself that there is sufficient material/record on the file which necessitates the issuance of process and taking of cognizance. But while taking cognizance and issuing process, the magistrate is not required to write a detailed and speaking order but what is required is that there must be a satisfaction based on the material which was collected during the enquiry or trial or presented before the magistrate by the complainant.

After considering the material if magistrate is satisfied that there is sufficient material collected before him which connects the accused with the commission of the offences, the magistrate may issue the process and take cognizance but in no case he is required to write a speaking  and the lengthy order. My view is supported by the judgment passed by the Hon’ble Supreme Court in case cited as AIR 2012 S.C 1921.

The relevant Paras wherein, it has been held that the magistrate is not required to write the speaking and lengthy orders are extracted and reproduced here under:   

 9. Undoubtedly, merely for taking cognizance and/or for issuing process, reasons may not be recorded.  In U.P. Pollution Control Board vs. M/s. Mohan Meakins Ltd. and others, (2000) 3 SCC 745, the issue whether it was necessary for the trial court to record reasons while issuing process came to be examined again, and this Court held as under:-

2. Though the trial court issued process against the accused at the first instance, they desired the trial court to discharge them without even making their first appearance in the court. When the attempt made for that purpose failed they moved for exemption from appearance in the court. In the meanwhile the Sessions Judge, Lucknow (Shri Prahlad Narain) entertained a revision moved by the accused against the order issuing process to them and, quashed it on the erroneous ground that the magistrate did not pass a speaking order for issuing such summons.

3. The Chief Judicial Magistrate, (before whom the complaint was filed) thereafter passed a detailed order on 25.4.1984 and again issued process to the accused. That order was again challenged by the accused in revision before the Sessions Court and the same Sessions Judge (Shri Prahlad Narain) again quashed it by order dated 25.6.1984.

5. We may point out at the very outset that the Sessions Judge was in error for quashing the process at the first round merely on the ground that the Chief Judicial Magistrate had not passed a speaking order. In fact it was contended before the Sessions judge, on behalf of the Board, that there is no legal requirement in Section 204 of the Code of Criminal Procedure (For short the ‘Code’) to record reasons for issuing process. But the said contention was spurned down in the following words: My attention has been drawn to Section 204 of the Code of Criminal Procedure and it has been argued that no reasons for summoning an accused person need be given. I feel that under Section 204 aforesaid, a Magistrate has to form an opinion that there was sufficient ground for proceeding and, if an opinion had to be formed judicially, the only mode of doing so is to find out express reasons for coming to the conclusions. In the impugned order, the learned Magistrate has neither specified any reasons nor has he even formed an opinion much less about there being sufficient ground for not proceeding with the case.

6. In a recent decision of the Supreme Court it has been pointed out that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah v. State of W.B., (2000) 1 SCC 722. The following passage will be apposite in this context:

12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial.”

          Whether an order passed by a Magistrate issuing process required reasons to be recorded, came to be examined by this Court again, in Dy. Chief Controller of Imports and Exports vs. Roshanlal Agarwal & Ors., (2003) 4 SCC 139, wherein this Court concluded as below:-

9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. M/s. Mohan Meakins Ltd. & Ors., (2000) 3 SCC 745, and after noticing the law laid down in Kanti Bhadra Shah v. State of West Bengal, (2000) 1 SCC 722, it was held as follows:

The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.

          Recently, in Bhushan Kumar and another vs. State (NCT of Delhi) and another (Criminal Appeal no. 612 of 2012, decided on 4.4.2012) the issue in hand was again considered. The observations of this Court recorded therein, are being placed below:-

9. A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Wilful disobedience is liable to be punished Under Section 174 Indian Penal Code. It is a ground for contempt of Court.

10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued.

D.              Time and again it has been stated by this Court that the summoning order Under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.”

33.This Court has held in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors. [(1976) 3 SCC 736] that whether the reasons given by the Magistrate issuing process under Section 202 or 204 Cr.P.C. were good or bad, sufficient or insufficient, cannot be examined by the High Court in the revision. All that the High Court, however, could do while exercising its powers of revision under Section 397/401 Cr.P.C when the order issuing process under Section 204 Cr.P.C. was under challenge was to examine whether there were materials before the Magistrate to take a view that there was sufficient ground for proceeding against the persons to whom the processes have been issued under Section 204 Cr.P.C.    

As is quite evident and manifest from the law laid down in the judgments cited supra that in determining the question whether any process is to be issued or not, the Magistrate has to be satisfied that there is sufficient ground for proceeding and not whether there is sufficient ground for conviction.  At the stage of issuing the process to the accused, the Magistrate is not required to record reasons and  it is not be seen whether the reasons given by the Magistrate issuing process under Section 202 or 204 Cr.P.C. were good or bad, sufficient or insufficient, cannot be examined  in the revision. However, the revisional courts can do while exercising its powers of revision,  when the order issuing process under Section 204 Cr.P.C. is under challenge is to examine whether there was material before the Magistrate to take a view that there was sufficient ground for proceeding against the persons to whom the processes has been issued under Section 204 Cr.P.C.

In so far as this question of taking cognizance and issuing process is concerned, it is to be remembered that after the complaint was filed before the Ld. CJM, the Ld. CJM had postponed the issuance of process and taking cognizance in the matter and enquiry was directed to be made by the Ld. CJM and accordingly, the enquiry was conducted by the Magistrate and, thereafter, as it was observed by the Ld. CJM that some clarification regarding the scientific and objective points was required, so the SIT was constituted and was directed to conduct further investigation. Both the Magistrate and the SIT  filed their respective reports. Ld. Magistrate in his report  has found petitioners involved in the commission of offences on the basis of evidence recorded during investigation.  ld. enquiry Magistrate has examined number of witnesses such asJavid Ahmad, Mst Shamima, Farooq Ahmad, Ghulam Mohd, Tasaduq Ahmad, Mst Aisha, Abdul Majeed, Gh Nabi and Abdul Majeed who all have stated that on the particular day when the occurrence took place the situation was normal and everybody was involved in the daily activities and a shopkeeper situated near the place of occurrence was also open. But at about 4-5 P.M a white Gypsy from Police Station, Nowhatta came on spot carrying some police personnel, on the link road, near the Gani Memorial Stadium and one of the police personnel came down from the Gypsy and without any provocation fired a teargas shell at the distance of 30 ft on a boy who was walking on the link road, after playing carom board with other boys. Some of the witnesses have stated that the shell was fired by Abdul Khaliq Sofi who belongs to Police Station Nowhatta, wearing his name plate on his clothes.  The witnesses who have been examined by the Ld. Magistrate have clearly stated that there was no stone pelting on the particular day, it was calm prevailing around, but the police personnel without any provocation fired a teargas shell which hit the boy on head, which ultimately caused his death.

 The SIT conducted investigation and also examined some points scientifically and also examined witnesses. The SIT has recorded the statements of civilian witnesses namely Mushtaq Ahmad Bhat, Bilal Ahmad Sheikh, Sanaullaha Sheikh, Irfan Ahmad Khan, Bilal Ahmad Bhat, Javid Ahmad Chaloo, Ghulam Mohammad Bhat, Munis-Ul-Islam, Shabir Ahmad Khan, and the Police personnel namely Constable Firdous Ahmad No. 2598/S, Constable Showkat Ahmad No. 3341/S, Dvr. HC Nisar Ahmad No. 1401/S, Constable Nazir Ahmad No. 742/S, Abdul Majid Bhat No. 48/3rd Sec, HC Mohammad Sultan No. 732/S and SPO Mohammad Akram No. 920/SPO. That apart the SIT has conducted the exercise of test firing of tear smoke shells with the help of Ballistics Expert from Forensic Science Laboratory, obtained the medical opinion from the Doctors pertaining to the death of Wamiq Farooq (as reported In the Post-mortem Report), analyzed the ground situation, prepared the site map and also noticed the surrounding circumstances pertaining to the occurrence. The SIT has given its conclusion in paragraph (K) as under:

          “From all the relevant facts in statements of witnesses it can be concluded that on the day of incident there was no stone pelting going on in the area and police party entered the area surrounding Gani Memorial Stadium to control the situation. The gypsy in which nafri was boarded was stopped       near the masjid and the police party disembarked in order to chase the stone         pelters and fired tear smoke shell. At the same time the death of the boy      named Wamiq Farooq was reported which may have been due to fall from   the surrounding wall of Gani Stadium, or the death could have caused by tear smoke shell itself. However the police action was done in due course and as per the situation on the ground. But in its report the SIT did not rule out the possible cause of death of boy Wamiq Farooq could not have been caused by  the firing of tear smoke shell, apart from the other reason being fall from the Stadium Wall. However, on the close analyses of evidence collected by the SIT as referred to in paragraph (j) it has pointed out to the fact, that an injury of the nature could have been caused by the striking of tear smoke shell. There is sufficient material to draw the conclusion that most likely the cause of injury on the head of deceased was hitting of tear smoke shell.

          Another important aspect of crucial significance, investigated by the SIT, pertaining to test firing of tear smoke shells, as discussed in paragraphs (c), (H) and (I) of the report, also indicates towards the possibility of the tear smoke shell to have been the cause of injury received on the head of deceased. The firing of tear smoke shells was examined by the ballistic experts. The opinion expressed by the ballistic experts indicated that it is highly likely that the tear smoke shell can cause injury to any human target, intentionally or unintentionally throughout its extreme range of 135+10 mtrs. It also has been expressed by ballistic expert that the shell projected from the tear gas gun can hit the human body accurately up to the distance of 12 feet which may prove fatal.

           The civilian witnesses number 1, 2, 3, 4, 5 and police witnesses number 1, 2, 3, 4, 5, and 6 examined by SIT highlight that there was an incident of heavy stone pelting by the miscreants which had compelled the police party to resort to firing of tear smoke shell to disperse the mob. Other witnesses being civilian witnesses number 7, 8 and 9 have disclosed that there was no stone pelting at the time when the police party arrived on the scene and police officials fired tear smoke shell aimed at the boy who suffered injuries and later on expired. Apparent analysis of the account of the occurrence as given in the statements of eyewitnesses points out to the probability of there being stone pelting by the mob. The circumstances of stone pelting before and after the occurrence, as collected and placed on record by the SIT do indicate to the probability of there being the episode of stone pelting at the time of alleged occurrence and the incident involving the firing of tear smoke shell.

          All the witnesses examines by Magistrate and some of the witnesses examined by SIT in their statements have indicted ASI Abdul Khaliq Sofi to be the person responsible for firing of tear smoke shell with his Tear Gun. The witnesses point out that Tear Gun was aimed at the boy who had received injury from the tear smoke shell so fired. Another account given by police personnel point out to firing of tear smoke shell by SPO Mohammad Akram with his Tear Gun. Although the evidence does not conclusively determine as to who had actually fired the tear smoke shell, nonetheless the said two persons are suspected of firing of tear smoke shell, and strong circumstances exist to suggest that one of them had fired tear smoke shell.

          The test firing of tear smoke shells, coupled with the statements of eyewitnesses as recorded by the SIT, does not rule out the possibility of the tear smoke shell to have been recklessly fired by the said two persons, aiming at the persons running helter-skelter after pelting stones. Even the evidence collected by the SIT indicates that the stone pelters were chased by the police party and tear smoke shell was fired to disperse them.

          The petitioners having the weapons in their hands were expected to use them with proper care and caution while maintaining law and order duty. They were required to use only that much of force which was required to disperse the unruly mob. The tear smoke shell should have been fired with intent to disperse the mob and maintain the calm but not fired recklessly to take a precious life. Any police personnel using the Tear Gun is required to handle it properly. It is not a weapon of offence but only intended to disarm the miscreants. If it is recklessly used and recklessly fired at the human target intentionally or unintentionally, it is likely to cause serious injuries to the human targets and can result in the death as has happened in the present case.

          Similar situation appears to have resulted in this case also because of a reckless use of Tear Gun and its reckless use by the petitioners. The circumstances as are available in the record of investigation conducted by the SIT do indicate that this was an episode of reckless firing of tear smoke shell by the police personnel, while they had tried to disperse the stone pelters. The person of ordinary prudence, the police personnel using the Tear Gun also being so, are in normal course expected to know the consequences of reckless firing of tear smoke shells on the mob. This has the potential of causing such injuries which in the ordinary course would be sufficient to cause death of a person who is hit by such tear smoke shells.

          The mandate of the Court at the stage of issuing process and taking cognizance is not to sift the evidence meticulously so as to hold that accused will be convicted on the basis of material collected during the course of investigation. TheRecord which was available before Ld CJM leads to the presumption that the petitioners fired a teargas smoke shell without any provocation and some of the witnesses examined by the SIT have stated that on the day of occurrence the rioting was going on and in order to quell the rioting the teargas smoke shell was fired so as to disperse the rioters, which hit the deceased. This fact has been established by the enquiry conducted by the Magistrate as well as by the SIT that the deceased was hit by a fire smoke shell which was fired by one of the petitioners.

Perusal of the trial court record reveals that there was sufficient material before the ld. CJM to frame an opinion about the involvement of the petitioners with the commission of the offences. The report filed by the Ld. Enquiry Magistrate establishes the fact that the petitioners have used fire arms without any provocation and without there being any need or occasion for them to use the fire arms because it has been stated by all the witnesses examined by the Magistrate that on the particular day no rioting was going on and the people were involved in their daily activities. Since the report of enquiry filed by the Magistrate and also filed by the SIT prima facie make out a case against the petitioners that the tear smoke shell was recklessly fired by them which killed the boy so apparently there was sufficient material before the Ld. CJM to proceed ahead in the matter and issue process and take cognizance in the matter. The act of issuing process and taking cognizance does not suffer from any irregularity or illegality, as such; the order passed by the ld. CJM cannot be reversed or set aside. In the circumstances, the case is not one which needs any interference under section 435 Cr.P.C.

For the reasons discussed hereinabove, the revision fails and is dismissed. The revision file after due completion shall be consigned to records and trial court record be sent down. The parties shall appear before the trial court on 3.3.2014.      

Announced

25.2.2014

                                                                                   (Parvez Hussain Kachroo)

                                                                                      2nd Addl. Sessions Judge

                                                                                        Srinagar