Punjab-Haryana High Court
Central Bureau Of Investigation vs State Of Haryana And Others on 24 January, 2025
Neutral Citation No:=2025:PHHC:010508
CRM-M-5650-2022 and connected case 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
204 (I) CRM-M-5650-2022
Reserved on: 19.11.2024
Date of Pronouncement : January 24, 2025
CENTRAL BUREAU OF INVESTIGATION -PETITIONER
V/S
STATE OF HARYANA AND OTHERS -RESPONDENTS
(II) CRM-M-10268-2021
BARUN CHANDRA THAKUR -PETITIONER
V/S
STATE OF HARYANA AND OTHERS -RESPONDENTS
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Prateek Gupta, Advocate
for the petitioner (in CRM-M-5650-2022) and
for the respondent No.2 (in CRM-M-10268-2021).
Mr. Rajesh Gaur, Addl. A.G., Haryana.
Mr. S.S. Narula, Advocate
for the respondents No.5 to 8 (in CRM-M-5650-2022) and
for the respondents No.3 to 6 (in CRM-M-10268-2021).
***
KULDEEP TIWARI, J.
1. Both these petitions encompass common question(s) of law,
besides encompassing common prayer(s), therefore, they are amenable for
being decided through a common verdict. For the sake of convenience,
the facts are being extracted from CRM-M-5650-2022.
2. The gravamen of the lis, as encapsulated in the instant
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petition, is centered upon the validity of the impugned orders dated
19.02.2021, which are enclosed with the instant petition respectively as
Annexures P1 to P4, and whereby, the sanction for prosecution of the
respondents No.5 to 8, in Case No. RC 08(S)/2017/SC-III/CBI/New Delhi
dated 22.09.2017, as sought by the C.B.I. under Section 197 Cr.P.C., has
been declined by the respondent No.1-State of Haryana.
3. Succinctly stated, the present case derives its origin from the
infamous incident of Ryan International School, Gurugram, wherein, a
student of 2nd class [a seven year old boy] [hereinafter referred to as the
‘minor deceased’] was found murdered in the school premises. Initially,
the investigation was conducted by the Haryana Police and they arrested
one Ashok Kumar [a Conductor employed in the School Bus at the
relevant time] as the accused behind the murder. Since there was a lot of
hue and cry and the matter was highlighted throughout media, and, even
the father of the minor deceased approached the Hon’ble Supreme Court
for transfer of investigation, therefore, the State of Haryana issued a
gazette notification, thus transferring the investigation of this case to the
C.B.I. The investigation of the C.B.I. culminated in a juvenile student of
the same school, namely, Bholu [imaginary name given by the trial Court
to conceal the identity of the juvenile student] [hereinafter referred to as
the ‘C.C.L.’] being the sole culprit behind murder of the minor deceased.
Moreover, post conducting a through investigation, the C.B.I. also
reached a conclusion that, in fact, Ashok Kumar was falsely framed in the
murder and he is totally innocent. The further shocking revelations, as
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emerged from the investigation conducted by the C.B.I. are that, the
Special Investigation Team [constituted by Commissioner of Police,
Gurugram] not only created false documents, but, also pressurized the
material witnesses to depose against Ashok Kumar. Consequently, a
supplementary report was filed by the C.B.I., thereby requesting to accord
sanction under Section 197 Cr.P.C. for prosecution of some of the
members of the Special Investigation Team [i.e. respondents No.5 to 8].
This request was declined by the respondent No.1 through rendering the
impugned orders. Therefore, fetching grievance from the impugned
orders, the C.B.I. has instituted the instant petition(s).
4. Since the present case has a chequered history, therefore, it is
deemed imperative to dive deep and make a studied survey of the factual
matrix of the case.
5. On 08.09.2017, at around 08:00 a.m., the minor deceased
was found in a pool of blood outside the boys’ washroom situated on
ground floor of the Ryan International School, Gurugram. While being
taken to a private hospital by the school authorities, he succumbed to his
injuries. Consequently, his father made a complaint to the police,
whereupon, FIR No.250 dated 08.09.2017 was registered under Section
302 IPC and Section 25 of the Arms Act, at P.S. Bhondi, against unknown
person.
6. On 08.09.2017 itself, on the directions of the respondents
No.5 and 6, S.I. Shamsher Singh (respondent No.7) arrested one Ashok
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Kumar, who was employed as a Conductor in the School Bus, for
committing murder of the minor deceased. Ashok Kumar was subjected to
police remand for three days, and thereupon, he was remanded to judicial
custody. During the course of investigation, the Special Investigation
Team also recorded the confessional statement of Ashok Kumar on
08.09.2017, wherein, he confessed to have, before committing murder,
attempted to sexually assault the minor deceased. Resultantly, offence
under Section 12 of The Protection of Children from Sexual Offences Act,
2012 (hereinafter referred to as the ‘POCSO Act’) was added in the
present case.
7. The investigating agency also arrested two more
persons/officer bearers of the School concerned, namely, Francis Thomas
and Jayesh Thomas, for offence punishable under Section 75 of the
Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter
referred to as the ‘Act of 2015’).
8. The complainant/petitioner (in CRM-M-10268-2021) was
not at all convinced by the theory propounded by the investigating agency
behind murder of the minor deceased, therefore, he instituted one S.L.P.
before the Hon’ble Supreme Court, thereby seeking transfer of
investigation to the C.B.I. In the meantime, considering the outcry of the
minor deceased’s family and concern of public all over the nation, the
Government of Haryana, vide notification dated 17.09.2017,
recommended to transfer the investigation to the C.B.I. The Central
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Government also, vide the counter notification dated 22.09.2017, granted
its consent and transferred the investigation of the present case to the
C.B.I.
9. Post its becoming seized with the investigation of the present
case, the C.B.I. re-registered the present FIR as Case No. RC
08(S)/2017/SC-III/CBI/New Delhi dated 22.09.2017. After conducting
thorough investigation, the C.B.I. found the C.C.L., who was about 16½
years of age at the time of commission of offence, to be involved in the
murder of the minor deceased, whereas, the involvement of Ashok Kumar
was completely ruled out. Consequently, the C.C.L. was arrested on
07.11.2017 at 23:30 hours. Although the C.B.I. filed the Charge Sheet
dated 05.02.2018 after completion of investigation, however, the scope of
further investigation under Section 173(8) Cr.P.C. was kept open to
investigate the false implication of Ashok Kumar by the investigating
agency/S.I.T., and, to find out the lapse on the part of the school
authorities.
10. On the basis of the charge sheet as well as the evidence
placed on record, the learned Additional Sessions Judge/Children’s Court
concerned drew the order dated 28.02.2018, thereby discharging Ashok
Kumar from the charges of murder of the minor deceased. Moreover,
further investigation within the sphere of Section 173(8) Cr.P.C. was also
conducted by the C.B.I. to examine the false implication of Ashok Kumar
by the State investigating agency. This brought to the fore the act of the
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respondents No.5 to 8, inasmuch as, it surfaced that, these respondents
created false and fabricated evidence with intent to procure conviction of
capital punishment for Ashok Kumar. Consequently, the C.B.I., after
disclosing the entire incriminatory material/evidence collected against the
respondents No.5 to 8, through its reports submitted on 19.08.2020 and
30.09.2020, requested the State Government to accord sanction for
prosecution, under Section 197 Cr.P.C., of the said respondents.
11. In the meantime, on 06.01.2021, the C.B.I. also filed the
supplementary charge sheet against the respondents No.5 to 8, for the
offence punishable under Section 120-B read with Sections 166-A, 167,
330 and 506 of the IPC, before the Special Judicial Magistrate, C.B.I.
Haryana at Panchkula.
12. Since the State Government, instead of adhering to the
guidelines issued by the Hon’ble Supreme Court in “Vineet Narain and
others Vs. Union of India and another”, (1998) 1 SCC 226, sat over the
matter and did not make any decision on the request made by C.B.I. for
grant of sanction for prosecution under Section 197 Cr.P.C., therefore, the
trial Court was propelled to observe that, the sanctioning authority is
having a dogged determination not to grant sanction to prosecute the
accused/respondents concerned owing to the sense of cameraderie. It was
also observed that, the sanctioning authority appeared to be frightened of
the fact that, the order of declining sanction may fall short of facing the
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judicial scrutiny. The relevant observations embodied in the interim order
dated 02.02.2021 are reproduced hereunder:-
“In view of the facts and circumstances coupled with a legal
position enumerated above, at this stage, this court is not inclined
to opt for the deemed sanction to prosecute the accused by virtue
of the acts of omission on the part of the authority who is to grant
the requisite sanction for prosecution. Needless to say that this
option may or may not be explore at some subsequent stage. It is
indeed dismal state of affairs on the part of the authority saddled
with the task of granting/declining the sanction to prosecute the
accused, that so far as the decision whatsoever upon the request
of the Investigating Agency has been ducked by it despite being
approached time again by none other than the premier
Investigating Agency of the country. If any statutory duty is
assigned to a public servant/particular authority, the acts of
omission/commission by that authority are squarely culpable,
especially when the valuable rights of the victims of offences
attributed to the accused are at stake. Unfortunately, this court
has been pushed against the wall in making a candid observation
against the authority tasked with the exercise of sanction to
prosecute the accused that at an appropriate stage, appropriate
proceedings under the law of the land may be initiated against
that authority. It has been rightly said that “be you ever so high,
the law is above you”. Obviously, the sanctioning authority
appears to be quite oblivious of this well entrenched maxin
holding the field in our criminal jurisprudence. What makes the
situation more pathetic, is the fact of sleeping over the request of
the premier Investigating Agency of the country like a
‘Kumbhakama’ instead of discharging its statutory
duties/functions without any delay/demure. On the face of it,
sleeping over the request of the Investigating Agency appears to
be for the simple reason that the sanctioning authority is having
a dogged determination not to grant sanction to prosecute the
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accused owning to the sense of cameraderie and at the same
time, it appear to be frightened of the fact that the order of
declining the request of the Investigating Agency may fall short
of facing the judicial scrutiny.”
13. Post the recording of the hereinabove reproduced
observations, the sanctioning authority woke up from slumber and passed
the impugned orders, thereby declining to grant sanction for prosecution
of the respondents No.5 to 8. In this way, the validity of the impugned
orders is assailed by filing the instant petition(s).
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
C.B.I./PETITIONER (IN CRM-M-5650-2022)
14. The learned counsel representing the C.B.I. addressed oral
arguments and furnished his written submissions as well. By drawing
attention of this Court towards the incriminatory material, as collected by
the C.B.I. against the respondents No.5 to 8, he claimed the impugned
orders to be suffering from the vice of biasedness and non application of
mind. He submitted that, the material produced before the sanctioning
authority was not at all considered while declining to grant sanction for
prosecution of the respondents No.5 to 8. Moreover, the eyewitness
account as well as the scientific evidence, which vividly destroys the case
of the State investigating agency against Ashok Kumar, was not given due
weightage by the sanctioning authority. Not only this, the highhandedness
of the respondents No.5 to 8 is apparent from the fact that, in order to
falsely implicate an innocent person, totally malicious investigation was
conducted by the said respondents. Strangely enough, the provisions of
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POCSO Act were also added by the investigating agency, whereas, the
post-mortem report clearly voices that no sexual assault had taken place.
15. The learned counsel for the C.B.I. further submitted that, the
investigation qua the role of Ashok Kumar forms a part of the
investigation conducted in respect of the C.C.L., therefore, the evidence(s)
collected are intertwined, intrinsic and not capable of being segregated so
as to make the offence committed by the respondents No.5 to 8 being
tried as separate offence.
16. Proceeding further, the learned counsel for the C.B.I. made
dependence upon the statements of various material witnesses, as
recorded under Section 164 Cr.P.C. by the C.B.I., to submit that, the said
witnesses clearly pointed out that the respondents No.5 to 8 indulged in
creation of false evidence in order to falsely implicate Ashok Kumar.
Moreover, by referring to the notifications dated 17.09.2017 and
22.09.2017, as issued under Sections 5 and 6 of the Delhi Special Police
Establishment Act, 1946, respectively by the State Government and by
the Central Government, he submitted that the C.B.I. is vested with
jurisdiction to conduct investigation of all the attempts, conspiracies in
relation to or in connection with the offences mentioned above and/or
offences committed and arising from the same transaction, and that, this
clearly reflects the intent of the authorities to cover also those offences,
which are discovered in the course of investigation.
17. The learned counsel for the C.B.I. next argued that, the
further investigation conducted qua the role of the respondents No.5 to 8
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is in line with the notifications (supra). The provision of Section 223(d)
Cr.P.C. prescribes for joint trial of different accused for separate offences
committed in the course of same transaction. Therefore, the investigation
conducted by the C.B.I. is well within the jurisdiction extended by way of
State/Central Government notification.
18. Concluding his submissions, the learned counsel for the
C.B.I. submitted that, even if for the sake of arguments it is accepted that,
the respondents No.5 to 8 are to be tried in a separate offence, yet the
same would be at the instance of the C.B.I. and in the same trial as that of
Section 302 IPC, in terms of Section 223(d) Cr.P.C. and also in terms of
the interconnected nature of evidence.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
COMPLAINANT/PETITIONER (IN CRM-M-10268-2021)
19. Although none caused representation on behalf of the
complainant/petitioner during the course of arguments, however, written
synopsis/arguments were furnished by the petitioner’s counsel on the
subsequent day, which are taken on record.
20. It is submitted in the written synopsis that, in the given facts
and circumstances of the case, the C.B.I. is not at all required to seek
sanction for prosecution of the respondents No.5 to 8, inasmuch as, the
offence alleged to have been committed by the said respondents cannot be
said to be committed in the discharge of their official duties. To lend
vigour to this submission, reliance is placed upon the judgment rendered
by the Hon’ble Supreme Court in “Shadakshari Vs. State of Karnataka”,
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2024 LiveLaw (SC) 42.
21. The next submission made in the written synopsis is that,
despite there being no sanction for prosecution, yet the Magistrate is
required to apply his mind under Section 200 Cr.P.C. to take cognizance
or not on the chargesheet filed by the C.B.I., on the ground as to whether
sanction is required or not in the given facts and circumstances of the
case.
22. It is also submitted in the written synopsis that, the further
investigation carried out by the C.B.I. under Section 173(8) Cr.P.C. is
neither beyond the scope of the notifications (supra), nor beyond the main
offence, as ancillary trial of offence leading to the main case was only
investigated. In this regard, reliance is placed upon the verdict rendered in
“Mahmood Ali and others Vs. State of U.P.”, 2023 INSC 684.
23. Finally, it is submitted in the written synopsis that, the
inherent powers of this Court under Section 482 Cr.P.C. are vast and the
same can be exercised to prevent abuse of the legal process and to secure
justice. Moreover, reliance is also placed upon the verdicts rendered in
“South Indian Bank Limited Vs. Directorate of Enforcement” (Neutral
Citation: 2024:KER:53873), “M/s Pepsi Food Ltd. and another Vs.
Special Judicial Magistrate and others”, [(1998) 5 SCC 749], and,
“Vijay Madanlal Choudhary and others Vs. Union of India and others”,
[2022 SCC Online SC 929].
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
RESPONDENTS NO.5 TO 8 (IN CRM-M-5650-2022)
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24. The learned counsel representing the respondents No.5 to 8
vociferously opposed the submissions made by his contesting counsels
and submitted that, the C.B.I. does not have any locus standi to file the
instant petition inasmuch as the impugned orders declining sanction for
prosecution are administrative in nature. In his defending the validity of
the impugned orders, he submitted that, there is no illegality or perversity
therein, rather the same have been passed after due application of mind to
the entire evidence.
25. The learned counsel for the respondents No.5 to 8 further
argued that, the offence alleged to have been committed by the
respondents No.5 to 8 was committed within the territorial jurisdiction of
Gurugram Police, therefore, the jurisdiction in this regard vests
specifically with the Gurugram Police. The C.B.I., being a central agency,
cannot usurp the jurisdiction of the Gurugram Police until and unless
there is a specific entrustment through a valid notification. Moreover, the
C.B.I. was entrusted only with the investigation of the murder of the
minor deceased and not the investigation of false implication of Ashok
Kumar, which is a completely separate and distinct matter having no
connection with the main offence. Consequently, during the course of
investigation into the murder of the minor deceased, if the C.B.I. found
any other evidence regarding innocence of Ashok Kumar, it ought to have
recommended action to the state investigating agency, rather than itself
carrying out investigation in that regard also, which is otherwise beyond
its jurisdiction. Not only this, Ashok Kumar, against whom the offence is
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alleged to have been committed by the respondents No.5 to 8, has not yet
made any complaint against them before any authority.
26. Resting his arguments, the learned counsel for the
respondents No.5 to 8 submitted that, the impugned orders could have
been challenged only by way of filing a petition under Articles 226/227 of
the Constitution of India and the present petition under Section 482
Cr.P.C is not maintainable.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
27. Mr. Rajesh Gaur, Addl. A.G., Haryana, also made a
strenuous attempt to protect the legality of the impugned orders and in his
attempt to do so, he submitted that the protection and immunity conferred
upon official(s) must be construed broadly to assess the nature of the act
under scrutiny. Such an assessment encompasses scenarios involving
mistaken identity for the action undertaken based on genuine suspicion.
Therefore, immunity provision must be interpreted with a wider margin of
discretionary powers vested in the sanctioning authority so as to safeguard
onerous discharge of official duties. The sanction for prosecution should
be granted only upon a thorough and objective evaluation and not only on
speculative and arbitrary grounds.
28. While continuing with his arguments, Mr. Rajesh Gaur
submitted that, there is no evidence on record to substantiate that there
was any criminal intent or mens rea on the part of the members of the
S.I.T. for falsely implicating any individual. The sanctioning authority
took into account the broader context including the possibility that the
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police official(s)’ action was the result of error in judgment in assessing
the situation, or, was based on genuine suspicion. Moreover, all the
relevant material was duly considered by the sanctioning authority and it
remains undisputed that the sanctioning authority applied its mind
properly, as is evident from the findings embodied in the impugned
orders.
29. Finally, Mr. Rajesh Gaur submitted that, although the State
Government has declined to grant sanction for prosecution of respondents
No.5 to 8, however, disciplinary proceedings were initiated against them
for theirs failing to properly discharge their duties and for theirs not
apprehending the actual offender. Moreover, a chargesheet dated
29.03.2022, under Rule 7 of the Haryana Civil Services (Punishment and
Appeal) Rules, 2016, was issued to the respondent No.6 in this regard and
a regular departmental inquiry is continually ongoing.
EVALUATING THE LEGALITY OF THE IMPUGNED ORDERS
30. This Court has heard at length the rival submissions of the
contesting litigants and also made a thorough perusal of the record, and in
aftermath thereof, this Court is coaxed to formulate the following issues
for adjudication of lis.
(i) Whether the impugned orders, nature whereof is
primarily administrative, can be subjected to judicial
review?
(ii) Whether the impugned orders are banked upon
consideration and application of mind to the material
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placed before the author thereof by the C.B.I.?
(iii) Whether the C.B.I. was vested with the jurisdiction to,
apart from conducting investigation as regards murder of
the minor deceased, investigate the offence(s) allegedly
committed by the respondents No.5 to 8 ? If the answer is in
affirmative, then it is also imperative for this Court to
adjudicate the issue whether the respondents No.5 to 8 can
be tried jointly with the C.C.L. [main accused of murder]?
31. For penning down an affirmative opinion upon the first issue,
this Court deems it imperative to refer to the judgment rendered by the
Hon’ble Supreme Court in “State of Punjab and another Vs. Mohammed
Iqbal Bhatti”, (2009) 17 Supreme Court Cases 92, inasmuch as, it has
been categorically held therein that, the legality and/or validity of the
order granting sanction would be subject to review by the criminal courts.
An order refusing to grant sanction may attract judicial review by the
superior courts. The relevant paragraphs of this judgment are reproduced
hereinafter:-
“6. Although the State in the matter of grant or refusal to grant
sanction exercises statutory jurisdiction, the same, however,
would not mean that power once exercised cannot be exercised
once again. For exercising its jurisdiction at a subsequent
stage, express power of review in the State may not be
necessary as even such a power is administrative in character.
It is, however, beyond any cavil that while passing an order for
grant of sanction, serious application of mind on the part of the
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of the order granting sanction would be subject to review by the
criminal courts. An order refusing to grant sanction may attract
judicial review by the Superior Courts.
7. Validity of an order of sanction would depend upon
application of mind on the part of the authority concerned and
the material placed before it. All such material facts and
material evidence must be considered by it. The sanctioning
authority must apply its mind on such material facts and
evidence collected during the investigation. Even such
application of mind does not appear from the order of sanction,
extrinsic evidence may be placed before the court in that
behalf. While granting sanction, the authority cannot take into
consideration an irrelevant fact nor can it pass an order on
extraneous consideration not germane for passing a statutory
order. It is also well settled that the Superior Courts cannot
direct the sanctioning authority either to grant sanction or not
to do so. The source of power of an authority passing an order
of sanction must also be considered. [See Mansukhlal Vithaldas
Chauhan v. State of Gujarat]. [(1997) 7 SCC 622]. The
authority concerned cannot also pass an order of sanction
subject to ratification of a higher authority. [See State v. Dr.
R.C. Anand] [(2004) 4 SCC 615].”
32. Also, in the verdict rendered in “Mansukhlal Vithaldas
Chauhan Vs. State of Gujarat”, (1997) 7 SCC 622, the Hon’ble Supreme
Court has, while concurring with the ratio of law laid down in “Sterling
Computers Ltd. Vs. M&N Publications Ltd.”, (1993) 1 SCC 445, held
that while exercising the power of judicial review, the Court is concerned
primarily as to whether there has been any infirmity in the decision-
making process. The relevant paragraph of Mansukhlal Vithaldas
Chauhan’s verdict (supra) is reproduced hereunder:-
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“28. In Sterling Computers Ltd. vs. M & N Publications Ltd.,
AIR 1966 SC 51, it was pointed out that while exercising the
power of judicial review, the Court is concerned primarily as to
whether there has been any infirmity in the decision-making
process? In this case, the following passage from Professor
Wade’s Administrative Law was relied upon :
“The doctrine that powers must be exercised reasonably has to
be reconciled with the no less important doctrine that the Court
must not usurp the discretion of the public authority which
Parliament appointed to take the decision. Within the bounds of
legal reasonableness is the area in which the deciding authority
has genuinely free discretion. If it passes those bounds, it acts
ultra vires. The Court must therefore resist the temptation to
draw the bounds too tightly, merely according to its own
opinion. It must strive to apply an objective standard which
leaves to the deciding authority the full range of choices which
legislature is presumed to have intended.”
33. In view of the above, this Court can delve upon the exercise
of gauging the legality of the impugned orders, whereby, sanction for
prosecution of respondents No.5 to 8 has been declined.
34. Insofar as the second issue is concerned, it is a trite law that,
refusal to take into consideration a relevant fact or acting on the basis of
irrelevant and extraneous factors not germane to the purpose of arriving at
the conclusion would vitiate an administrative order and certainly requires
judicial review. Gainful reference in this regard can be made to the verdict
rendered in “M.P. Special Police Establishment Vs. State of M.P. and
Others”, (2004) 8 Supreme Court Cases 788, relevant paragraphs
whereof are reproduced hereunder:-
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“29. The Office of the Lokayukta was held by a former Judge of
this Court. It is difficult to assume that the said High Authority
would give a report without any material whatsoever. We,
however, do not intend to lay down any law in this behalf. Each
case may be judged on its own merits. In this case, however, we
are satisfied that the Lokayukta made a report upon taking into
consideration the materials which were placed or received by
him. When the Council of Ministers takes a decision in exercise
of its jurisdiction it must act fairly and reasonably. It must not
only act within the four corners of the statute but also for
effectuating the purpose and object for which the statute has
been enacted. Respondent No. 4 in each appeal are to be
prosecuted under the Prevention of Corruption Act wherefor no
order of sanction is required to be obtained. A sanction was
asked for and granted only in relation to an offence under
Section 120-B of the Penal Code. It is now trite that it may not
be possible in a given case even to prove conspiracy by direct
evidence. It was for the Court to arrive at the conclusion as
regard commission of the offence of conspiracy upon the
material placed on record of the case during trial which would
include the oral testimonies of the witnesses. Such a relevant
consideration apparently was absent in the mind the Council of
Ministers when it passed an order refusing to grant sanction. It
is now well-settled that refusal to take into consideration a
relevant fact or acting on the basis of irrelevant and extraneous
factors not germane to the purpose of arriving at the conclusion
would vitiate an administrative order. In this case, on the
material disclosed by the report of the Lokayukta it could not
have been concluded, at the prima facie stage, that no case was
made out.
32. If, on these facts and circumstances, the Governor cannot
act in his own discretion there would be a complete breakdown
of the rule of law inasmuch as it would then be open for18 of 49
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Governments to refuse sanction in spite of overwhelming
material showing that a prima facie case is made out. If, in
cases where prima facie case is clearly made out, sanction to
prosecute high functionaries is refused or withheld, democracy
itself will be at stake. It would then lead to a situation where
people in power may break the law with impunity safe in the
knowledge that they will not be prosecuted as the requisite
sanction will not be granted.”
35. The Hon’ble Supreme Court has also expressed a similar
view in “State of Karnataka Vs. Ameerjan”, (2007) 11 Supreme Court
Cases 273, by holding that, application of mind on the part of the
sanctioning authority is imperative. The order granting sanction must be
demonstrative of the fact that there had been proper application of mind
on the part of the sanctioning authority. The relevant paragraphs of this
verdict are reproduced as under:-
“9. We agree that an order of sanction should not be construed
in a pedantic manner. But, it is also well settled that the
purpose for which an order of sanction is required to be passed
should always be borne in mind. Ordinarily, the sanctioning
authority is the best person to judge as to whether the public
servant concerned should receive the protection under the Act
by refusing to accord sanction for his prosecution or not.
10. For the aforementioned purpose, indisputably, application
of mind on the part of the sanctioning authority is imperative.
The order granting sanction must be demonstrative of the fact
that there had been proper application of mind on the part of
the sanctioning authority. We have noticed hereinbefore that
the sanctioning authority had purported to pass the order of
sanction solely on the basis of the report made by the Inspector
General of Police, Karnataka Lokayukta. Even the said report19 of 49
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has not been brought on record. Thus, whether in the said
report, either in the body thereof or by annexing therewith the
relevant documents, IG Police, Karnataka Lokayuktha had
placed on record the materials collected on investigation of the
matter which would prima facie establish existence of evidence
in regard to the commission of the offence by the public servant
concerned is not evident. Ordinarily, before passing an order of
sanction, the entire records containing the materials collected
against the accused should be placed before the sanctioning
authority. In the event, the order of sanction does not indicate
application of mind as (sic to) the materials placed before the
said authority before the order of sanction was passed, the
same may be produced before the court to show that such
materials had in fact been produced.”
36. Furthermore, in Mansukhlal Vithaldas Chauhan’s verdict
(supra), it has also been held that, the order of sanction must ex facie
disclose that the sanctioning authority had considered the evidence and
other material placed before it. The validity of sanction depends on the
applicability of mind by the sanctioning authority to the facts of the case,
as also the material and evidence collected during investigation. The
relevant paragraphs of this verdict are reproduced hereunder:-
“18. The validity of the sanction would, therefore, depend upon
the material placed before the sanctioning authority and the
fact that all the relevant facts, material and evidence have been
considered by the sanctioning authority. Consideration implies
application of mind. The order of sanction must ex facie
disclose that the sanctioning authority had considered the
evidence and other material placed before it. This fact can also
be established by extrinsic evidence by placing the relevant
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considered by the sanctioning authority. (See also Jaswant
Singh vs. State of Punjab, AIR 1958 SC 124; State of Bihar vs.
P.P. Sharma, 1991 Cri. L.J. 1438).
19. Since the validity of “sanction” depends on the applicability
of mind by the sanctioning authority to the facts of the case as
also the material and evidence collected during investigation, it
necessarily follows that the sanctioning authority has to apply
its own independent mind for the generation of genuine
satisfaction whether prosecution has to be sanctioned or not.
The mind of the sanctioning authority should not be under
pressure from any quarter nor should any external force be
acting upon it to take decision one way or the other. Since the
discretion to grant or not to grant sanction vests absolutely in
the sanctioning authority, its discretion should be shown to
have not been affected by any extraneous consideration. If is
shown that the sanctioning authority was unable to apply its
independent mind for any reason whatsoever or was under an
obligation or compulsion or constraint to grant the sanction,
the order will be had for the reason that the discretion of the
authority “not to sanction” was taken away and it was
compelled to act mechanically to sanction the prosecution.”
37. On the anvil of the hereinabove discussed legal propositions
of law concerning the issue No.(ii), this Court proceeds to adjudicate the
legality of the impugned orders.
38. What emerges to the fore from scrutiny of the record is that,
the C.B.I. had, in its report(s)/request letter(s) submitted to the
sanctioning authority for grant of sanction for prosecution of the
respondents No.5 to 8, made complete disclosure regarding: (i) wilful
lapse in the investigation conducted by members of the S.I.T., besides
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creation of false documents to falsely implicate Ashok Kumar; (ii) the
incriminatory evidence collected against the C.C.L.; and (iii) the
exculpatory evidence collected against Ashok Kumar. The disclosures
(supra), as made by the C.B.I. in tabulated form, are reproduced
hereinafter:-
“9.16 During the arrest of conductor Ashok Kumar, the
allegations/grounds framed against him by Investigation Team of Gurugram Police
for implicating him as accused and the reasons/evidence revealed through CBI
investigation which not substantiated the allegation are as follows:-
S. No. Allegations/Grounds Evidence to dis-prove the allegations
a. Ashok Kumar had taken the knife CBI investigation revealed that there was
from the tool box of Bus bearing no such knife kept in the tool box of school
registration No. HR 55 Y 5626 of bus. The driver of the school bus
Vidhyalaya plying on Route No. 7 registration No. HR 55 Y 5626 Shri
with one Saurab as bus driver. Saurabh Raghav in which conductor
The said knife having rust on it Ashok Kumar was working has stated that
was lying in the tool box of the there was no knife in the tool box of the
aforesaid bus and accused Ashok school bus as he cleaned the tool box of
Kumar picked up the same for the bus before two days of the incident.
taking it to his residence after СВІ investigation also revealed that Shri
cleaning rust from it. Narender Singh Khattana, the then SHO
of Bhondsi Police Station pressurized him
on 08.09.2017 in the school premises to
admit that knife was available in the tool
box of the bus. It also revealed that Shri
Narender Singh Khattana, the then SHO
of Bhondsi Police Station told him “ki
seedhe seehe batayga ya pit kar batayga”
but he did not succumb to the pressure of
aforesaid Police Officer. The statement of
Saurab was recorded u/s 164 Cr.P.C.
b. Ashok Kumar became excited in CBI Investigation revealed that conductor
the morning of 08.09.2017 by Ashok Kumar had never touched any
touching the school children at student/children of the school while
the time of their boarding and de- boarding and de-boarding them. No such
boarding. complaint was ever made against him by
any student or school teacher travelling in
the same bus. This fact is corroborated by
Ms. Swathi Satsangi, Ms. Har Simran
Kaur, Ms. Preeti Malik and Ms. Poorva
Chopra.
c. Accused Ashok Kumar kept the CBI investigation revealed that there was
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knife in his pocket and went to no knife kept in the tool box of the school
ground floor boy’s bus. Driver Saurab Ragav has confirmed
washroom/toilet of Vidhyalaya the fact and he also stated that he cleaned
from the wooden gate of the the tool box two days prior to the incident.
school meant for school students. He also stated that Inspector Narender
Singh Khattana pressurized him on
08.09.2017 by saying “ki seedhe seedhe
batayga ya pit kar batayga” in the school
premises to admit that knife was available
in the tool box of the bus. His statement
was recorded u/s 161 Cr.P.C and 164 of
Cr.P.C.
d. Conductor Ashok Kumar opened CBI investigation revealed that no sexual
nicker of Master Prince and tried assault was made with Master Prince. Ms.
to sexually assault him but the Mini Gopal, the Nurse of the school
child started shouting and he revealed that she had accompanied the
stopped the child from shouting injured Prince to the hospital along with
by keeping his hand on the mouth school in-charge Jayesh Thomas and
of the child and in the meantime Conductor Manoj Kumar in a Wagon-R
he discharged. Car. She further revealed that while going
to hospital she only removed the shoes,
Shocks of the child Prince and opened the
belt & button of knickers of Prince in
order to make the child relax. Until she
removed the belt of minor deceased, the
trouser/nicker of Master Prince was
intact. Further, witness/staff of the School
Ms Sowmya Shiju also revealed that the
belt, nicker and clothes were intact while
he was placed inside the Wagon-R Car.
Further there is no symptoms of sexual
assault mentioned in Post-Mortem
Certificate. This rules out the theory of
sexual assault made by conductor Ashok
Kumar. The statement of Mini Gopal and
Conductor Manoj was recorded U/s 161
and 164 Cr.P.C.
e. He committed the murder of CBI investigation revealed that Conductor
Master Price on 08.09.2017 as Ashok Kumar was not inside the
the child started shouting and in washroom while the minor deceased
order to save his job & reputation master Prince entered into the toilet.
he committed the murder of • Two children named Ayush Gupta and
Master Prince. Krish Yadav revealed that they have seen
Conductor Ashok Kumar entering the
washroom while they were changing the
Karate Dress. CCTV Analysis revealed
that the two children exited from the
washroom at 7.33.52 after changing the
dress.
• During this time Master Prince didn’t
enter into the school building.
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• As per the version of Teacher Anju
Dudeja, Harpal Mali, Gajraj Driver and
Aditya Yadav – conductor Ashok Kumar
came from the water cooler side while
called for help to lift the injured Master
Prince.
• During CBI investigation, Driver Gajraj
revealed that he saw conductor Ashok
Kumar near water cooler. The entry of
Gajraj in Cam-1 is 07:38:26. If it takes 10
Seconds for him to reach water cooler
then the time is 07:38:36.
• At 7.38.36 Ashok Kumar is present near
water cooler whereas the minor deceased
Master Prince entered washroom gallery
along with school bag, he is visible in
Cam-2 at 07:38:03 – entering into
washroom gallery with school bag.
• In the meantime, Harpali Mali also
while going to toilet has seen Conductor
Ashok Kumar and Gajraj near the water
cooler.
• Harpal Mali saw the accused Bholu
coming out the toilet while he was
entering into the toilet. The elder class
student/Bholu has informed him that a
small boy inside the toilet room is injured
and directed him to attend him
immediately.
• Another Student of the same School
Ayushi Yadav also has seen accused
Bholu coming out of the toilet at about
07:39:22.
• The accused boy Bholu has been
identified while going with minor
deceased Prince in cam-2 at 07:37:35 and
Master Prince is visible in Cam-2 at
07:38:03 – returning and entering into
washroom gallery with school bag.
Exactly after 20 Seconds i.e at 7:38:23
accused Bholu enters to washroom
Gallery.
• Then Bholu is seen coming out of the
toilet and reports to Harpal Mali that
Master Prince is injured.
Thus CBI investigation ruled out the
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involvement of Conductor Ashok Kumar
in the murder of Master prince based on
the CCTV Footages, Circumstantial
evidences and Scientifical/Medical
evidences.
f. Blood of Master Prince comes on CBI investigation revealed that there was
the hands, clothes of Conductor no blood stains/blood particles found in
Ashok Kumar while slitting the the taps and pipes fitted inside the
throat of Master Prince. He threw washroom and near water cooler.
the knife in the toilet sheet and
came out, washed his hands, • The Scientific Assistant Jothi Rati also
mouth and removed blood stains has opined in her report that no blood
on the water taps installed in the particles found in the taps and pipes fitted
gallery near the water cooler. (meant for washing hands as wash basin)
in the washroom. She has informed the
fact to ACP Birem Singh and Inspector
Narender Khattana on 08.09.2017 itself.
• CFSL, New Delhi also opined that there
is no blood particles found in the taps and
pipes fitted inside the washroom and near
water cooler.
• As per the theory built up by Gurugram
Police that Conductor Ashok Kumar
washed his hands in the washbasin inside
the washroom/near water cooler- then the
stain of blood particle should have been
detected during the Forensic Analysis.
g. Ashok Kumar shirt was having CBI investigation revealed that witness
blood stains/blood when he was Harpal Mali was pressurized by
seen in the toilet by Harpal Mali Investigation Team of Gurugram Police to
on 08.09.2017. say that he saw conductor Ashok Kumar
inside the boy’s toilet where the murder
took place. The statement of Harpal Mali
was recorded u/s 164 Cr.P.C.
If Harpal Mali has seen Ashok Kumar
inside the toilet, then the elder
student/accused Bholu also must have
seen him indie. But Bholu has not seen
anyone inside the washroom.
Teacher Anju Judeja, Driver Gajraj have
revealed that there was no blood stain in
the shirt of Conductor Ashok Kumar until
he lifted the child.
9.16 During the course of CBI investigation, it revealed that the following
documents were falsely prepared by SI Shri Shamsher Singh and Inspector Shri
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Narender Khattana on the direct supervision of ACP Shri Birem Singh against
conductor Ashok Kumar are as follows:-
S. Name and details Evidence revealed during CBI
No. of the documents investigation to prove the
manipulation made by investigation
team, Gurugram Police to falsely
implicate Conductor Ashok Kumar
I Document – (i) Allegation-1:- Fact found during CBI
1/CD dt. 08.9.17. SI Shamsher Singh Investigation:-
received the complaint Complaint was actually given by
from Barun Chander Barun Chandra Tahakur at City
Thakur at Artemis Police Station, Gurugram at about
Hospital at 2.20 pm and 3 pm.
forwarded the same to
Bhondsi P.S through 1. Statement of Barun Chandra
Constable Bheem Singh. Thakur.
2. Statement of Sh. Sujit Bharathi.
3. Statement of Sh. Mahavir
Mishra.
4. Statement of ASI Sachiv Kumar.
5. Statement of Constable Rajinder.
Statement of Constable Bheem
Singh.
(ii) Allegation-2:- Fact found during Investigation:-
SI Shamsher Singh At 2.20 pm Ms. Jyoth Singh was
visited Artemis Hospital present at Ryan School, but SI
along with Ms. Jyothi Shamsher Singh was not present
Singh at 2.20 pm and along with her.
from Artemis Hospital
with her came to the • 161 and 164 CrPC statement of
Scene of Crime. Ms. Jyothi Singh, Scientific
Assistant.
• CCTV Footages of School dated
08.09.17.
• Mobile Tower Location of SI
Shamsher Singh.
(iii) Allegation-3:- Fact found during CBI
Investigation:-
SI Shamsher Singh has Actually SI Shamsher Singh visited
mentioned that SHO SOC by night only whereas SHO
Insp Narinder Khattana Insp Narinder Singh Khattana
reached SOC after his reached SOC in the morning at
visit. about 10:48:18 hrs.
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• Statements of Police Officers
DCP Simardeep Singh, DCP Sumit
Kumar, DCP Ashok Bakshi, ACP
Birem Singh.
• 161 and 164 CrPC statement of
Ms. Jyothi Singh, Scientific
Assistant.
• CCTV Footages of School dated
08.09.17.
• CDR and Tower Location of
Inspector Narender Khattana.
• CDR and Tower Location of Sl
Shamsher Singh.
(iv) Allegation-4:- Fact found during CBI
Investigation:-
SI Shamsher Singh has SI Shamsher visited the SOC at
mentioned that Rough night only .
Site plan of SOC was
prepared by him and • Statements of Police Officers
after that only DCP DCP Simardeep Singh, DCP Sumit
Traffic Simardeep Singh, Kumar, DCP Ashok Bakshi, ACP
DCP Ashok Bakshi, Birem Singh.
DCP Sumit and ACP
Sohna Sh. Birem • 161 and 164 Cr.PC statement of
reached the SOC. Ms. Jyothi Singh, Scientific
Assistant.
• CCTV Footages of School dated
08.09.17.
• CDR and Tower Location of
Inspector Narender Khattana.
• CDR and Tower Location of SI
Shamsher Singh.
(v) Allegation-5:- Fact found during CBI
Investigation:-
SI Shamsher Singh has Actually the Crime Scene Visit
mentioned that he Report was collected from her
received the Crime office on 09.09.2017 evening.
Scene Report from Ms.
Jyothi at Vidyalaya • 161 and 164 СгРС statement of
itself. Ms. Jyothi Singh, Scientific
Assistant.
(vi) Allegation-6:- Fact found during СВІ
Investigation:-
SI Shamsher Singh has Conductor Ashok Kumar was not
mentioned in Case Diary present at SOC while preparing
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admitted the crime. to Sohna Cl Office by SHO Insp
Narinder Khattana at 11.30 to
12.00 hrs.• Statement u/s 161 and 164 CrPC
statement of Ms. Jyothi Singh,
Scientific Assistant.
• Statements of Police Officers
DCP Simardeep Singh, DCP Sumit
Kumar, DCP Ashok Bakshi, ACP
Birem Singh.
• Statement u/s 161 and 164 of
Lady Constable Manju. (prepared
the confession statement)
(vii) Allegation-7:- Fact found during СВІ
Investigation:-
SI Shamsher Singh has Conductor Ashok Kumar was not
mentioned in CD that present at SOC while preparing the
Ashok Kumar was Identification Memo.
identified by two school
children Ayush Gupta (i) Children Ayush Gupta and Krish
and Krish that he were not present at the time
entered boy’s toilet in mentioned in the Identification
the morning when they Memo, as they left home early.
gone to change the Judo
dress. (ii) SI Shamsher was not present in
the SOC at the time mentioned in
the Identification Memo.
• Statement of Ayush and Krish
• Statement of Anju Dudeja.
• Statement of HC Vineet Kumar.
• CCTV footages of School.
• Handwriting Opinion of CFSL for
proving handwriting of Vineet.
II Document-2/ SI Shamsher Singh has Fact found during Investigation:-
Seizure Memo. prepared a Seizure Ashok Kumar was arrested at 21.00
dated 08.09.2017 Memo for seizing the hrs on 08.09.2017, FIR was lodged
time 15.00 hrs. cloths and swabs of at 15.30 hrs, whereas the IO has
(D-17) minor deceased in which mentioned Ashok Kumar’s name
he has mentioned the prior to FIR shows the Criminal
name of Ashok Kumar as Negligence of the IO to implicate
accused. Ashok Kumar as accused.
Memo Signed by:- • Statement of HC Vineet Kumar.
1. SI Shamsher Singh • Handwriting Opinion of CFSL for
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2. Constable Bheem proving handwriting of Vineet.
Singh
3. Ms. Jyoti, Scientific
Assistant.
Memo Prepared by HC
Vineet Kumar.
In the memo the Case
FIR No., Name of the
Complainant and the
name of accused i.e.
Ashok Kumar has been
mentioned.
III Document – SI Shamsher Singh has Fact found during CBI
3/Seizure Memo. prepared a Seizure Investigation:-
dated 08.09.2017 Memo for seizing the Ashok Kumar was arrested at 21.00
time 16.00 to Knife at SOC and school hrs on 08.09.2017, FIR was lodged
16.30 hrs. bag of the minor at 16.00 to 16.30 hrs, whereas the
deceased in which he IO has mentioned Ashok Kumar’s
has mentioned the name name prior to arrest/any materiel
of Ashok Kumar as evidence to suspect Ashok with him
accused. shows the malafide intention of the
IO to implicate Ashok Kumar as
accused.
• Statement of HC Vineet Kumar.
• Handwriting Opinion of CFSL for
proving handwriting of Vineet
Kumar.
IV Document – SI Shamsher Singh has Fact found during CBI
4/Rough Sketch prepared a Rough Investigation:-
of Knife dated Sketch of knife at SOC Ashok Kumar was not available at
08.09.2017. after seizing it in the School from 12.00 pm. SI Shamsher
presence of Ashok Singh did not visited school when
Kumar. Ashok Kumar was present.
• Statement of Constable Rahul.
• Statement of Jyothi u/s 161 and
164 Cr.P.C., Scientific Assistant.
• Statement of Head Constable Ram
Kumar (Who prepared the
document)
• Statement of Officers – to establish
that Conductor Ashok Kumar was
taken from school and was not
brought back.
• CCTV footages of School.
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• Mobile CDR/Tower Location of SI
Shri Shamsher Singh.
V Document – SI Shamsher Singh has Fact found during СВІ
5/Lifting of prepared a Seizure Investigation:-
Finger Prints Memo for seizing the Ashok Kumar was not available at
from SOC dated chance finger prints School from 12.00 pm. SI Shamsher
08.09.2017 lifted by FP Expert Singh did not visited school when
Rishiraj from SOC Ashok Kumar was present.
• Statement of HC Rishi Raj.
• Statement of Jyothi u/s 161 and
164 Cr.P.C, Scientific Assistant.
• Statement of HC Vineet Kumar.
• CCTV footages of School.
• Handwriting Opinion of CFSL for
proving handwriting of Vineet.
VI Document – Sl Shamsher Singh has Fact found during CBI
6/identification prepared an Investigation:-
Memo of Ashok Identification Memo in Ashok Kumar was not available at
Kumar by Two which two children School from 12.00 pm. SI Shamsher
School Children Ayush Gupta and Krish Singh did not visited school when
dated Yadav identified Ashok Kumar was present. Both the
08.09.2017. (D- Conductor Ashok Kumar children left the school at 12.00
13) that he came to toilet noon itself. Anju Dudeja was not
while they were present at school, she only took
changing their Karate minor deceased to hospital.
Dress. Children were
produced by teacher • Statement of Sh. Manoj Gupta
Anju Dudeja.
• Statement of Devender Yadav.
Memo Signed by:-
• Statement of HC Vineet
1. Conductor Ashok
Kumar • Statement of Jyothi u/s 161 and
2. SI Shamsher Singh 164 Cr.P.C, Scientific Assistant.
3. Constable Bheem
Singh • CCTV footages of School.
4. Ms. Jyoti, Scientific
Assistant. • Handwriting Opinion of CFSL for
proving handwriting of Vineet.
Memo Prepared by HC
Vineet Kumar.
VII Document -7/ SI Shamsher Singh has Fact found during CBI
Identification prepared an Investigation:-
Memo of the Identification Memo of Ashok Kumar was not available at
place of the SOC in the presence School from 12.00 pm. SI Shamsher
occurrence by of Conductor Ashok Singh did not visited school when
Ashok Kumar Kumar. Ashok Kumar was present.
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dated
08.09.2017. (D- Memo Signed by:- • Statement of HC Ram Kumar.
14)
1. Conductor Ashok • Statements of Police Officers
Kumar DCP Simardeep Singh, DCP Sumit
2. SI Shamsher Singh Kumar, DCP Ashok Bakshi.
3. Constable Bheem
Singh • CCTV Footages of School dated
08.09.17.
Memo Prepared by HC
Ram Kumar • Mobile CDR of SI Shamsher
Singh & Constable Bheem Singh.
VII Document – Ashok Kumar was Fact found during CBI
I 8/Arrest Memo arrested on 08.09.2017 Investigation:-
of Ashok Kumar at 09.00 pm, but he was Arrest of Ashok Kumar was made
dated 08.09.2017 shown as accused before at 09.00 pm but two seizure memo’s
itself in other documents showing his name as accused were
by police. prepared prior to his arrest thus
Gurugram Police has already
decided to arrest Conductor Ashok
Kumar in this case.
1. Statement of HC Ram Kumar
IX Document – SI Shamsher Singh has Fact found during CBI
9/Confession of recorded a confession Investigation:-
Ashok Kumar statement of Ashok After Arrest of Ashok Kumar by SI
dated Kumar after arresting Shamsher Singh at 09.00 pm he has
08.09.2017. him in which he not visited school premises all. The
confessed the crime. confessional statement was not
After the confessional recorded at SOC on 08.09.2017, it
statement he added 12 of was prepared on 11.09.2017 by
POCSO Act in the case. Constable Manju.
Constable Manju has stated that
Inspector Shri Narender Khattana
and Vineet of Sohna Cl Officer
were present in the room where she
was writing the confessional
Statement of Ashok Kumar on
11.09.2017.
Constable Manju has further stated
that Shri Narinder Singh Khattana,
the then SHO of Bhondsi Police
Station, Gurugram, Haryana and at
that time ACP Birem Singh was
present in the SHO Room at
Bhondsi Police.
• Statement u/s 161 and 164 Cr.P.C
of WPC Manju
• Statement of Constable Bheem
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Singh (Confession Witness)
• Statements of Police Officers
DCP Simardeep Singh, DCP Sumit
Kumar, DCP Ashok Bakshi.
• CCTV Footages of School dated
08.09.17.
X Case Diaries of 1. The Case Diary dated 1. 161 Statement of Head Constable
Inspector Shri 08.09.2017 was actually Vineeth Kumar that he prepared the
Narender Singh prepared on 11.09.17 case diary on or after 11.09.2017.
Khattana (post dated).
2. CFSL, New Delhi report on
Handwritings of Head Constable
Vineeth Kumar in case diary sent
for comparison are matched with
the Questioned documents.
3. Official order for his attachment
with Bhondsi P.S.
4. GD entries of Cl office Sohna
that he was on duty till 11.09.17
evening that he was on duty.
5. GD entry in Bhondsi for his
reporting.
6. CCTV footages of the school.
7. CFSL, New Delhi report on
Handwritings of Head Constable
Vineeth Kumar in case diary sent
for comparison are matched with
the Questioned documents.
8. Official order for his attachment
with Bhondsi P.S.
9. GD entries of Cl office Sohna
that he was on duty till 11.09.17
evening that he was on duty.
10. GD entry in Bhondsi for his
reporting.
2. As per the case diary 1. Statement of Ms. Anju Dudeja
dated 08.09.2017, Insp that she was not available in school
Narinder Khattana has as she went to Hospital along with
examined EASI Subash, minor deceased/ She states that she
ASI Rajinder, School was not examined by Insp Narinder
teachers Anju Dudeja, Khattana.
Sanju Bala, Chavi
Bhatnakar and Harpal 2. 161 Statement of Head Constable
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Mali. Vineeth Kumar that he prepared the
case diary on or after 11.09.2017.
3. Insp Narinder Singh Evidences mentioned in the Column
Khattana has mentioned X.
in his CDs on 8.09.19
that he visited and he
directed SI Shamsher
Singh to collect the
evidences from SOC. But
actually Shamsher Sigh
was not at SOC at that
time. Actually SI
Shamsher Singh reached
the School at 08.56 pm
only.
4. Insp Narinder Singh 1. Statement of Ms. Anju Dudeja
Khattana has mentioned that she was not available in school
in the case diary that as she went to Hospital along with
Anju Dudeja informed minor deceased/ She states that she
him that two children was not examined by Insp Narinder
Ayush Gupta and Krish Khattana Khattana.
had seen conductor
Ashok Kumar entering 2. Statement of teacher Ms. Sanju
washroom while Bala that she only produced the
changing dress/ Insp children.
Narinder Khattana
examined the children, 3. Statement of Father of Krish
directed IO Shamsher Yadav
Singh to examine them
and record their 4. Statement of Father of Ayush
statements/ But actually Gupta
the children were
produced by Sanju Bala 5. CCTV footages of the school.
to ESI Subash.
5. Insp Narinder 1. Statement of Ms. Anju Dudeja
Khattana has recorded that she was not available in school
in the case diary as she went to Hospital along with
08/09/17 that after he minor deceased/ She states that she
examined Anju Dudeja, was not examined by Insp Narinder
Sanju Bala, Chavi Khattana Khattana.
Bhatnakar, Harpal Mali,
Neerja Bhatra and after 2. Statement of Ms. Neerja Bhatra
that only DCP that she was not available in school
Simardeep Singh, DCP as she went to Hospital along with
Ashok Bhakshi and minor deceased/ She states that she
Birem Singh reached was not examined by Insp Narinder
school. Khattana Khattana.
3. Statement of Simardeep Singh,
DCP
4. Statement of Ashok Bhakshi,
DCP.
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5. CCTV footages of the school.
6. Insp Narinder 1. Statement of Simardeep Singh,
Khattana has recorded DCP
in CD that he handed
over the CD file to 2. Statement of Ashok Bhakshi,
Senior Officers and DCP
briefed about the case
and after receiving 3. CCTV footages of the school.
instructions he handed
over the CD back to SI. 4. Mobile Tower Location and CDR
Shamsher Singh./ But of SI Shamsher.
actually Sl Shamsher
Singh was not present
7. Insp Narinder 1. Statement u/s 161 and 164
Khattana has mentioned Cr.P.C of Scientific Assistant Jyoti
in CD dated 8.9.17 that Singh.
he himself, Shamsher,
Scientific Assistant 2. Statement of Constable Bheem
Jyothi, FP Expert Rishi Singh.
Raj, Anju Dudeja, Sanju
Bala, Chavi Bhatnakar 3. CCTV footages of the school.
and Harpal Mali were
present in the SOC, 4. Mobile Tower Location and CDR
when reached the of SI Shamsher.
school, but it not true as
SI Shamsher Singh
reached school by
evening only.
8. Insp Narinder 1. Statement u/s 161 and 164
Khattana has brought Cr.P.C of Scientific Assistant Jyoti
conductor Ashok had Singh.
committed murder in the
CD and has given 2. Statement of Constable Bheem
certain instructions:- Singh.
a. Investigate the case 3. CCTV footages of the school.
thoroughly.
4. Mobile Tower Location and CDR
b. Collect maximum of SI Shamsher
physical evidence at
SOC.
c. Collect CCTV footage
of cameras installed in
the building.
d. Send clothes of Prince
to FSL.
e. Procure FP report of
Chance Print.
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f. Conductor Ashok to be
examined thoroughly.
g. Blood Sample from
SOC to be lifted and sent
to FSL.
h. Conduct investigation
as per rules.
(But Shamsher Singh
reached SOC after 8 pm
only).
39. Furthermore, from a perusal of the 164 Cr.P.C. statements of
Harpal Singh Mali, C.C.L., Anju Dudeja, HC Vineet Kumar, Lady
Constable Manju and Jyoti Rathi, which are enclosed respectively as
Annexures P-19 to P-25, and, which were relied upon by the learned
counsel for the C.B.I. during the course of arguments, it vividly emerges
that, in order to falsely implicated Ashok Kumar, the purported
inculpatory evidence against him was extracted/created by members of
the S.I.T. by threatening the witnesses (supra) to depose against him. In
order to avoid unnecessary augmentation of this verdict, the statements
(supra) are not elaborated here.
40. A meticulous survey of the impugned orders reflect that the
cause for drawing them spurred from the hereinafter extracted premises:-
(a) Despite Ashok Kumar being subjected to regular
medical examination during police custody, yet no medical
evidence was placed on record regarding voluntarily causing
hurt to him to extort confession.
(b) The other charges relating to inaccurate police
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documentation were found to be minor in nature, which
cannot per se punishable by criminal prosecution unless
there is criminal intent and mens rea proving such intent to
falsely implicate any person.
(c) There may be instance of incorrect approach, but, the
intent of the investigating agency to conduct the investigation
in the right perspective has to be seen. An act or omission or
lack of efficiency or failure to attain highest standard of
investigating ability may not, by itself, amount to or
constitute an offence. Error of judgment in evaluating the
situation may be some sort of negligence but it would not
constitute any offence in the absence of the intent and mens
rea.
41. Insofar as the observations of the author of the impugned
orders appertaining to faslely created documents being termed as
inaccurate documentation is concerned, it would be apt to record here
that, there is a stark difference between inaccurate documentation and
creation of false documentation. An inaccurate document refers to
error/omission or recording information inaccurately or inconsistently,
which is primarily unintentional or may relate to incompetency. The
intent to mislead or to deceit is mostly absent and its result may lead to
some confusion. However, creating false document is intentionally
producing or altering documents to deceive or manipulate etc. The basic
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difference is of intent. An inaccurate document is the result of bona fide
mistake.
42. In the instant case, this Court has, in the preceding
paragraphs, reproduced the details of false document created by the errant
officials/respondents No.5 to 8. Prima facie, the said documents cannot be
considered as inaccurate documents.
43. Heading further, what surges forth from a scrutiny of the
impugned orders is that, they do not embody any discussion about the
incriminatory evidence placed on record by the C.B.I. Reiteratedly, in
M.P. Special Police Establishment’s case (supra), it has been
categorically held by the Hon’ble Supreme Court that, non consideration
of the relevant material placed on record by the sanctioning authority
requires judicial review.
44. It is a trite law that, reasons are nexus between the
conclusion reached and the facts in question. In the absence of any
reasons becoming assigned, an administrative order can be termed as a
non speaking order. Therefore, this Court has no hesitation to conclude
that, in the absence of any reference being made by the sanctioning
authority to the incriminatory evidence produced by the C.B.I., the
impugned orders are unsustainable in the eyes of law on account of them
being non speaking.
45. Heading towards the issue No. (iii); the corresponding
notifications issued by the State of Haryana and by the Central
Government [DoPT], whereby, the investigation of the present case was
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transferred to the C.B.I., are of dire significance. The relevant portion of
these notifications is reproduced hereinafter:-
“Notification issued by Haryana Government [Home
Department]
In exercise of the Powers conferred under section 6 of the Delhi
Special Police Establishment Act, 1946 (Act No. 25 of 1946), the
Governor of State of Haryana, hereby accords consent to the
extension of powers and jurisdiction of the members of the Delhi
Special Police Establishment to the whole of the State of Haryana
for investigation of Case FIR No. 250 dated 08.09.2017 u/s 302
IPC & 25/54/59 Arms Act, 12 Protection of Children from Sexual
Offences (POCSO) Act & 75 Juvenile Justice (J.J.) Act r/w
Section 34 IPC Police Station Bhondsi, Gurugram and attempts,
abetments and conspiracies in relation to or in connection with
the offences mentioned above and any other offence or offences
committed in the course of the same transaction or arising out of
the same facts.”
“Notification issued by Government of India [Personnel, Public
Complaints & Pension Ministry] [Personnel & Training
Department]In exercise of the Powers conferred under Section 5 read with
Section 6 of Delhi Special Police Establishment Act, 1946, the
Governor of State of Haryana, hereby accords consent to the
extension of powers and jurisdiction of the members of the Delhi
Special Police Establishment to the whole of the State of Haryana
vide Notification No.20/12/2017-3HGI dated 17.09.2017 for
Investigation of case FIR No.250 dated 08.09.2017 U/s 302 IPC
and 25/54/59 of Arms Act, 12 of POCSO Act and 75 of J.J. Act
r/w 34 IPC PS Bhondsi Distt. Gurugram, and to investigation of
all the attempts in relation to or in connection and conspiracies in
relation to or in connection with the offences mentioned above
and any other offence or offences committed in the course of the
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same and arises from the same.”
46. A meticulous reading of the hereinabove reproduced
notifications makes it crystal clear that, the phrase “in relation to or in
connection”, as used therein, refers to the power of the C.B.I. to
investigate those offences also which have relationship in terms of
context, cause, relevance or influence. The phrase “in relation” denotes
concern or connection with something, whereas, the phrase “in
connection” denotes relationship or association between two or more.
47. The phrase “any other offence or offences committed in the
course of the same and arises from the same” used in notifications (supra)
does bestow jurisdiction upon the C.B.I. to conduct investigation into the
conduct of the S.I.T. The offences alleged to have been committed by the
respondents No.5 to 8 are not to be wholly unconnected but forming part
of the same transactions, thus giving jurisdiction to the C.B.I. to conduct
investigation in respect thereof, and thereupon, to file chargesheet.
48. Consequent upon transfer of the investigation to it, the C.B.I.
found that Ashok Kumar [Bus Conductor] was falsely implicated in the
murder of the minor deceased, whereas, the actual culprit is the C.C.L.
Moreover, the evidence collected by the C.B.I., in order to arrive at this
conclusion, also exposed the criminal act of the members of the S.I.T.
inasmuch as it surfaced that they created false oral and documentary
evidence to falsely implicate Ashok Kumar. Concisely speaking, the
C.B.I. claims that evidence collected is suggestive of the following:- (a)
guilt of the C.C.L.; (b) innocence of Ashok Kumar; (c) creation of false
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and fabricated oral and documentary evidence by the respondents No.5 to
8/members of the S.I.T. to falsely implicate Ashok Kumar.
49. The evidence(s) collected by the C.B.I. are intertwined,
intrinsic and not capable of being segregated inasmuch as the foundation
of the C.B.I.’s investigation to the effect that the C.C.L. is involved in
commission of murder was laid down by its investigation regarding
innocence and false implication of Ashok Kumar. Therefore, although the
offence(s) allegedly committed by the respondents No.5 to 8 are different
offence(s), however, the same have been committed in the course of same
transaction. Reiteratedly, the innocence of Ashok Kumar and his false
implication by the respondents No.5 to 8/members of the S.I.T. is totally
intertwined with the evidence produced by the C.B.I. to bring home the
guilt of the C.C.L. Therefore, in view of the terminology used in the
notifications (supra) and the nature of offence(s) allegedly committed by
the respondents No.5 to 8, this Court has no hesitation to answer the
opening portion of the issue No.(iii) in affirmative.
50. Since an affirmative finding has been recorded as regards
jurisdiction of the C.B.I. to investigate the offence(s) allegedly committed
by the respondents No.5 to 8, therefore, now this Court is required to
adjudicate the latter portion of the issue No.(iii), which appertains to trial
of the respondents No.5 to 8.
51. At this juncture, Section 223(d) Cr.P.C. is of utmost
necessity inasmuch as it voices that, persons accused of different offences
committed in the course of the same transaction, can be charged and tried
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together. Moreover, the Hon’ble Supreme Court has, in “Essar
Teleholdings Limited Vs. Registrar General, Delhi High Court and
Others”, (2013) 8 SCC 1, while dealing with the scope of Section 223,
held that although the petitioners therein were accused of different
offences, however, since the said offences were alleged to have been
committed in the course of same 2G Spectrum transactions, therefore,
with the aid of Section 223, they can be charged and tried together with
the other co-accused of 2G scam cases. Relevant paragraphs of this
verdict are reproduced hereunder:-
“22. The second supplementary charge sheet dated 12th
December, 2011 was filed in the FIR No. RC DAI 2009 A 0045
dated 21st October, 2009 wherein following allegations have
been made against the petitioners and some others:
“Allegations
1. On 21.10.2009, the CBI registered an FIR vide RC DAI
2009 A 0045 against unknown officials of Department of
Telecommunications, India, unknown Government of
private persons/companies and others for the offences
punishable under Section 120 B IPC read with Section
13(2) r/w 13(1) (d) of Prevention of Corruption Act, 1988,
on allegations of criminal conspiracy and criminal
misconduct, in respect of allotment of Letters of Intent,
United Access Service (UAS) Licenses and spectrum by the
Department of Telecommunication. Investigation of the
case was taken up and charge sheets dated 02.04.2011
supplementary and charge sheet first dated 25.04.2011
were filed before Hon’ble Special Judge (2G Spectrum
Cases), Patiala House Courts, New Delhi, in which in trial
proceedings are going on and are presently at the stage of
prosecution evidence.
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xxx xxx xxx xxx
3. The eligibility of all the companies which were allocated
letters of Intent (LOI) on 10.01.2008 by the DOT was also
investigated by BI during the investigation of this case.
During such investigation, allegations came to notice that
M/s Loop Telecom Ltd., which had applied for UAS
licenses in 21 Telecom circles in September, 2007 was
front company of M/s Essar Group. M/s Loop Mobile India
Ltd. had been operating a UAS license since 2005 in the
Mumbai Service Area. It was alleged that M/s Essar
Group which already had a stake of 33% in M/s Vodafone
Essar Ltd., a telecom operator in all the 22 telecom circles,
was controlling substantial stake in the aforesaid 2
companies in violation of the UAS guidelines dated
14.12.2005and UAS license agreements signed by M/s
Vodafone Essar Ltd. with DOT. It was further alleged that
the accused persons belonging to M/s Loop Telecom Ltd.
M/s Loop Mobile India Ltd and Essar Group of companies,
fraudulently suppressed the facts of association of the two
Loop Companies with M/s Essar Group of Companies
while applying for new licenses DoT, in order the DoT
considers these companies as entitles which are not
substantially controlled by Essar Group. The said accused
persons therefore, dishonestly or fraudulently got the 21
new UAS licenses and continue to operate the Mumbai
License of Loop in contravention of the applicable
guidelines.
4. Investigation has been carried out on the allegations
that M/s Loop Telecom Ltd., and associated persons
including Essar persons/Companies, Department of
cheated Group the Telecommunication, Government of
India by concealing the actual stake holders of M/s Loop
Telecom Ltd. behind a corporate veil, while applying for
and getting 21 new UAS Licenses and got the 21 UAS
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Licenses and valuable spectrum for this Company.”
23. Following facts also emerge from the background of the
matter:
“70. That after the accused persons had cheated the DoT
and fraudulently obtained the Letters of Intent/UAS
Licenses/valuable spectrum in furtherance of a conspiracy
among themselves, several complaints were received by
the Department of Telecommunications during 2008-2010
alleging that M/s Loop Telecom Ltd. was an Essar group
company under a corporate veil and was thereby violating
the clause 8 of UASL Guidelines dated 14.12.2005. In one
such matter Dot referred the matter to Ministry of
Corporate Affairs seeking to examine the matter and open
whether the given facts and circumstances made out a
violation of the clause 8 of UASL Guidelines. Investigation
has revealed that the Deputy Director (Inspection),
Ministry of Corporate Affairs, who examined the matter in
detail, concluded that the clause 8 of the UASL Guidelines
had been violated. …..
71. The investigation has, therefore, revealed that M/s.
Loop Telecom Ltd. made fraudulent UASL applications for
21 circles on 3.9.2007 by misrepresenting the fact that they
met all the eligibility criteria including clause 8 of UASL
guidelines. These fraudulent applications were
accompanied by false certificates to the effect that the
company met the conditions prescribed under clause 8 of
UASL guidelines, thereby falsely claiming that the
applicant company was not under any control influence of
any existing licensee and that competition would not be
compromised if 21 licenses applied for are issued to it…….
72. The aforesaid facts and circumstances constitute
commission of offences, during 2007 08, punishable u/s
120 B IPC r/w 420 IPC, and substantive offence u/s 420
IPC, against accused persons, viz. Ravi N. Ruia,43 of 49
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Anshuman Ruia, Vikash Saraf, I.P. Khaitan, Ms. Kiran
Khaitan, M/s. Loop Telecom Ltd. (erstwhile M/s.
Shippingstop Dot Com India Pvt.Ltd.), M/s. Loop Mobile
India Ltd. (BPL M/s. Mobile Communications Limited)
and M/s. Teleholdings Ltd. Accused persons were not
arrested during investigation.”
24. From the aforesaid second charge sheet it is clear that the
offence alleged to have been committed by the petitioners in the
course of 2G Scam Cases. For the said reason they have been
made accused in the 2G Scam Case.
25. Admittedly, the co-accused of 2G Scam case charged under
the provisions of Prevention of Corruption Act can be tried only
by the Special Judge. The petitioners are co-accused in the said
2G Scam case. In this background Section 220 of Cr.P.C. will
apply and the petitioners though accused of different offences i.e.
under Section 420/120B IPC, which alleged to have been
committed in the course of 2G Spectrum transactions, under
Section 223 of Cr. P.C. they may be charged and can be tried
together with the other co-accused of 2G Scam cases.
XX XX XX XX
29. Admittedly, 2G Scam case is triable by the Special Judge
against the persons accused of offences punishable under the PC
Act in view of sub-Section (1) of Section 4. The Special Judge
alone can take the cognizance of the offence specified in sub
Section (1) of Section 3 and conspiracy in relation to them.
While trying any case, the Special Judge may also try an offence
other than the offence specified in sub-Section (1) of Section 3, in
view of sub-Section (3) of Section 4. A magistrate cannot take
cognizance of offence as specified in Section 3(1) of the PC Act.
In this background, as the petitioners have been shown as co-
accused in second supplementary chargesheet filed in 2G Scam
case, it is open to the Special Judge to take cognizance of the
offence under Section 120 B and Section 420 IPC.”
52. In “Essar Teleholdings Limited Vs. Central Bureau of
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Investigation”, (2015) 10 SCC 562, the Hon’ble Supreme Court has
reiterated the above observations and placed reliance upon “Chandra
Bhal v. State of U.P.”, (1971) 3 SCC 983, wherein, it was held that
general mandatory rules provide for a separate charge for every distinct
offence and for separate trial for every such charge. However, the
exceptions to this general rule is found in Sections 234, 235, 236 and 239
and these exceptions embrace cases in which one trial for more than one
offence is not considered likely to embarrass or prejudice the accused in
his defence (emphasis supplied). The relevant paragraph of the verdict
rendered in “Essar Teleholdings Limited Vs. Central Bureau of
Investigation” is reproduced hereunder:-
“19. Read in the backdrop of Sections 220 and 223, it is clear that a
discretion is vested with the Court to order a joint trial. In fact, in
Chandra Bhal v. State of U.P., (1971) 3 SCC 983, this Court stated:
“5. Turning to the provisions of the Code, Section 233 embodies
the general mandatory rule providing for a separate charge for
every distinct offence and for separate trial for every such charge.
The broad object underlying the general rule seems to be to give
to the accused a notice of the precise accusation and to save him
from being embarrassed in his defence by the confusion which is
likely to result from lumping together in a single charge distinct
offences and from combining several charges at one trial. There
are, however, exceptions to this general rule and they are found
in Sections 234, 235, 236 and 239. These exceptions embrace
cases in which one trial for more than one offence is not
considered likely to embarrass or prejudice the accused in his
defence. The matter of joinder of charges is, however, in the
general discretion of the court and the principle consideration
controlling the judicial exercise of this discretion should be to
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avoid embarrassment to the defence by joinder of charges. On the
appellant’s argument the only provision requiring consideration
is Section 235(1) which lays down that if in one series of acts so
connected together as to form the same transaction more offences
than one are committed by the same person then he may be
charged with and tried at one trial for every such offence. This
exception like the other exceptions merely permits a joint trial of
more offences than one. It neither renders a joint trial imperative
nor does it bar or prohibit separate trials. Sub-section (2) of
Section 403 of the Code also provides that a person acquitted or
convicted of any offence may be afterwards tried for any distinct
offence for which a separate charge might have been made
against him on the former trial under Section 235(1). No legal
objection to the appellant’s separate trial is sustainable and his
counsel has advisedly not seriously pressed any before us.”
53. In “State of Kerala Vs. Ayyappan and others”, (2006) 13
Supreme Court Cases 320, the Hon’ble Supreme Court has, in almost
similar facts, held that since some of the evidence in the trial against one
set of accused charged by Judicial Magistrate was likely to be common in
the trial of the other set of accused charged by Sessions Court, hence a
separate trial would prejudice the prosecution case. Therefore, the joint
trial was held to be legal. The relevant paragraphs of this verdict are
reproduced hereunder:-
“2. Sometime in January 1993, the fourth respondent made a
complaint to Padagiri Police Station about two missing persons,
Chandran and Thankamani, who were alleged to be missing from
27-11-1992 onwards. The police carried out investigation and,
thereafter, an offence under Section 302 of the Penal Code, 1860
(IPC) was registered and the case was remitted to the Additional
Sessions Court, Palakkad. Respondents 9, 10 and 1246 of 49
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(Unnikrishnan, Ramankutty and Asis alias Abdul Assis,
respectively) are police personnel, who were concerned with
investigation of Crime No. 2 of 1993 of Padagiri Police Station. It
was alleged against them that they had fabricated false evidence
and attempted to destroy evidence in order to shield the accused,
who were charged with serious offences. The tenth accused
(Ramankutty) moved an application under Section 218 of the
Code of Criminal Procedure, 1973 (CrPC) before the Court of
Session, Palakkad praying that the case against him be split up
and tried separately. By an order dated 12-7-1999, the Additional
Sessions Judge dismissed the application. However, on 14-9-1999
the Additional Sessions Court, Palakkad made an order framing
separate charges against Accused 9, 10 and 12 for offences
punishable under Sections 120-B, 218 and 193 IPC and ordered
that they be tried by the Chief Judicial Magistrate, Palakkad. The
appellant State of Kerala challenged the said order by Criminal
Revision Petition No. 878 of 1999 before the High Court of
Kerala. The High Court dismissed the criminal revision petition
by its order dated 12-8-2003 taking the view that there was no
infirmity in the order transferring the case to the Chief Judicial
Magistrate, Palakkad for trial of Accused 9, 10 and 12. The High
Court opined that the Additional Sessions Court’s order was in
conformity with the provisions contained in Section 228(1) CrPC.
The High Court’s order is impugned in the present appeal.
3. We have perused the record and heard the learned counsel on
both the sides. We are satisfied that at least some of the evidence
in the trial against Accused 9, 10 and 12 is likely to be common in
the trial of the other accused, who were charged before the
Sessions Court. There is likelihood of prejudice to the
prosecution’s case, if the trials are held separately. On the other
hand, if Accused 9, 10 and 12 are also tried by the Sessions
Court, there is no prejudice likely to be caused to them. In any
event, we are not satisfied that Section 228(1) CrPC could have
been applied to the facts of the present case. It was quite within
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the competence of the Sessions Court to try the charges against
Accused 9, 10 and 12 along with the charges against the other
accused, who stood charged with the offences, which were
exclusively triable by the Sessions Court. We are, therefore,
satisfied that both the trials ought to proceed before the Sessions
Court.
4. We, therefore, quash and set aside the order of the High Court
impugned in the present appeal as well as the order of the First
Additional Sessions Court, Palakkad dated 14-9-1999 insofar as
it directs trial of the charges framed against Accused 9
(Unnikrishnan), Accused 10 (Ramankutty) and Accused 12 (Asis
alias Abdul Assis) by the Chief Judicial Magistrate, Palakkad. We
direct that the charges against the said accused shall also be tried
by the Additional Sessions Court, Palakkad along with the other
accused in Sessions Case No. 256 of 1998.”
54. In view of the judicial precedents (supra), as also the nature
of evidence and its interconnection, this Court is of the opinion that, a
separate trial would cause prejudice to the prosecution case as it may
result in conflicting decisions. Therefore, in order to achieve the desired
object of a fair trial for commission of murder of the minor deceased, the
latter portion of the issue No.(iii) is also answered in affirmative.
FINAL ORDER
55. In summa, this Court of the opinion that, the impugned
orders are not only non speaking but also do not pass the test of legality,
hence require interference. Moreover, this Court also does not have any
hesitation to conclude that, the act of the sanctioning authority is clearly
arbitrary. Consequently, these petitions are allowed and the impugned
orders are set aside. The matter is remanded to the sanctioning
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authority to, after taking into account all the evidence(s) produced before
it by the C.B.I., make afresh decision upon the C.B.I.’s request(s) for
grant of sanction for prosecution of respondents No.5 to 8. This exercise
shall be carried out within a month from the date of pronouncement of
this verdict.
56. Insofar as the complainant’s plea appertaining to there being
no requirement for sanction to prosecute the respondents No.5 to 8 is
concerned, the same is in fact not the subject matter of the instant lis,
rather the same is required to be decided by the trial Court at the first
instance. This plea can only be considered by this Court, when any
adverse inference causing grievance to the complainant is drawn thereon
by the trial Court.
57. A photocopy of this order be placed on file of connected
case.
(KULDEEP TIWARI)
January 24, 2025 JUDGE
devinder
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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