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2020 Supreme(All) 1341
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Anil Kumar, Manish Mathur, JJ.
Bhawan Singh Garbyal and Ors.- Appellants
Vs.
State of U.P. and Ors.- Respondent
Misc. Bench Nos. 7148 and 7152 of 2020
Decided On : 18-06-2020
For the Appellant : Meenakshi Singh Parihar, Atish Kumar Singh and Divyanshu Pratap
For the Respondents: G.A.
Headnote:
P.C. Act - Section 19 – Indian Penal Code - Sections-147/436/504/506/427 - Constitution of India, 1950 - Article 14 - Investigation was conducted – First Information Report - Clearance for payment of additional amount - Whether exonerated officer in departmental proceeding also faced same charges including charge of being a party to larger conspiracy - Learned counsel for petitioners while challenging impugned orders submitted that in night received the information from City Control Room that house of prominent Congress Leader situated was set on fire by some arsonists – Petitioners who are posted police along with other persons/police officers reached at spot they found that house in question was damaged and arsine and immediately all police personnel/petitioners informed fire brigade and also nabbed five persons - All police personnel also rescued some residents from the house in question - Letter was written by one then General Secretary/Chief Spokesperson of U.P. Congress Committee to Superintendent of Police for taking action against Party leaders and similar application was also given to His Excellency Government of Uttar Pradesh - Persons rescued from house in question were also handed over then Secretary, U.P. Congress Committee – Held, It does not matter even if the act exceeds what is strictly necessary for discharge of the duty as this question will arise only at a later stage when trial proceeds on the merits - From the perusal of the record in instant matter admitted position which emerges out is that in the incident which took place house of the prominent Congress Leader then was set on fire by some arsonists and the petitioners who are posted along with other police officers reached at spot and they found that the house in question was damaged - Thereafter against other police officers who went along with the petitioner on the spot against them no action has been taken by the competent authority, whereas against the petitioners, the prosecution has been sanctioned - Said action on the part of the competent authority is arbitrary in nature and the same is violative of Article 14 of Constitution of India as well as law laid down by Hon'ble the Apex Court in the case - So far as the objection taken by learned A.G.A. that the present writ petition filed by the petitioners challenging the validity of the sanction order is not maintainable in view of law laid down by Hon'ble the Apex Court in the case - In the said case Prosecuting Agency completed investigation and filed a charge sheet before the competent Court – However in the present case said position does not exist, rather the present case is to be considered as per guidelines laid down by Hon'ble the Apex Court - Taking into consideration facts and circumstances of case as well as law as stated herein above court dispose of both the writ petitions with a direction that the Investigating Agency shall conduct investigation in pursuance to order by which sanction has been granted for prosecution against petitioners as per procedure prescribed for said purpose under law and thereafter shall file a police report before the competent Court/Court of Magistrate - In case of filing of police report by Investigating Agency in competent Court/Court of Magistrate against petitioners they shall have liberty to take all pleas in their defense including plea that the prosecutions have wrongly been sanctioned against them – Order accoedingly
ORDER :
Anil Kumar, J.
1. Heard Sri H.G.S. Parihar, learned Senior Advocate assisted by Ms. Meenakshi Parihar, learned counsel for the petitioner and Sri S.P. Singh, learned A.G.A. for the State.
2. With the consent of the learned counsel for the parties, both the writ petitions are clubbed together and are being decided at the admission stage as well as by a common judgment.
3. By means of the present writ petition, the petitioner has challenged the impugned order dated 27.08.2018 passed by opposite party no. 1 by which sanction has been granted for prosecution of the petitioners.
4. Learned counsel for the petitioners while challenging the impugned orders submitted that in the night of 15.07.2009 received the information from City Control Room, Lucknow that house of the prominent Congress Leader, Mrs. Reeta Bahuguna Joshi situated at 45, Sarojni Naidu Marg, P.S. Hazratganj, District-Lucknow was set on fire by some arsonists. The petitioners, who are posted at Lucknow, police along with other persons/police officers reached at the spot, they found that the house in question was damaged and arsoned and immediately all police personnel/petitioners informed the fire brigade and also nabbed five persons, namely Guddu Yadav, Shiv Kumar Singh, Inder Singh, Jamir Khan and Susajit Kumar Tiwari. All police personnel also rescued some residents from the house in question.
5. The letter dated 15.07.2009 was written by one Sri Subodh Kumar Srivastava, the then General Secretary/Chief Spokesperson of U.P. Congress Committee to the Superintendent of Police, Hussainganj, Lucknow for taking action against the Bahujan Samajwadi Party leaders and similar application was also given on 16.07.2009 by Smt. Reeta Bahuguna Joshi to His Excellency, the Government of Uttar Pradesh.
6. On 16.07.2009 the persons rescued from the house in question were also handed over to Sri Ramesh Mishra, the then Secretary, U.P. Congress Committee on 16.07.2009.
7. Thereafter, F.I.R. was registered as Case Crime No. 216 dated 16.07.2009 under Sections-147/436/504/506/427 I.P.C. at P.S.-Hussainganj, District-Lucknow on the information given by the petitioner no. 2/Sri Bali Ram Saroj, Inspector Incharge, P.S.-Hussainganj, Lucknow against Guddu Yadav, Shiv Kumar Singh, Inder Singh @ Pappu, Jamir Khan and Susajit Kumar Tiwan.
8. Learned counsel for the petitioners further submitted that a letter dated 19.07.2009 was written by Sri Prem Prakash, Deputy Inspector General of Police/Senior Superintendent of Police, Lucknow to Sri Bali Ram Saroj, Inspector Incharge, P.S.-Hussainganj, District-Lucknow and mentioned therein that the State Government has transferred the investigation of the Case Crime No. 384/2009, under Sections-147, 504, 506, 427, 436 I.P.C., P.S.-Hussainganj, Lucknow to the C.B.C.I.D., Lucknow and direction was issued to hand over the case diary and other papers to the C.B.C.I.D., Lucknow.
9. It is further submitted that the investigation was conducted jointly by the Superintendent of Police, C.B.C.I.D., Lucknow and the Circle Officer, C.B.C.I.D., Lucknow and a report was submitted on 17.07.2014 to the State Government. In the said report, a recommendation was also made for lodging F.I.R. against the petitioners as well as other police officers including Sri Virendra Kumar, Sri Ashok Kumar Yadav and Sri Chandra Shekhar..
10. Thereafter, two F.I.Rs. were lodged on 19.03.2015 by Sri Mritunjaya Singh, Inspector, P.S.-Hussainganj, Lucknow; (a) Case Crime No. 0049, under Sections-149, 457, 365, 342, 118, 109 I.P.C. against the petitioners and Virendra Kumar, Ashok Kumar Yadav and Chandra Shekhar, Riyazul Haq. Prem Prakash, Harish Kumar and Awadhesh Kumar Pandey and (b) Case Crime No. 0448, under Sections-365, 342, 149, 218, 120 I.P.C. against police personnel including the petitioners.
11. Subsequently, the letter dated 30.03.2015 was written by the Superintendent of Police, C.B.C.I.D., Lucknow to the State Government annexing the proforma for sanction of prosecution against S
