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Devinder Singh & Ors. v. State of Punjab through CBI

Criminal Appeal · Neutral citation not assigned (Criminal Appeal No. 190 of 2003)Decided 25 Apr 2016
Criminal Appeal No. 190 of 2003
Justice V. Gopala Gowda · Justice Arun Mishra

Background

The appellants were Punjab Police officers prosecuted by the CBI over the killing of four persons in Tarn Taran district in 1993, during the height of terrorism-related violence in Punjab, which the prosecution alleged was a "fake encounter." The CBI had obtained sanction to prosecute from the State Government rather than the Central Government, and the officers sought discharge under Section 227 CrPC, arguing that under Section 6 of the Punjab Disturbed Areas Act, 1983, only the Central Government could validly sanction their prosecution since they were acting in discharge of official duty. This case (Criminal Appeal No. 190 of 2003) was the lead matter in a batch of over 30 similarly-tagged appeals and one writ petition raising the same question of law.

Decision Breakdown

The Supreme Court undertook a detailed review of precedent on when an act is done "in discharge of official duty" so as to require sanction, and laid down nine guiding principles for courts to apply at the discharge stage. Applying these principles, the Court held that where the prosecution's case is that the death was a fake encounter (not a bona fide use of force), there is, prima facie, no requirement of prior sanction, and the trial court must proceed on that prosecution version. However, the Court kept the door open for the accused to lead defence evidence showing a genuine nexus with official duty, in which case the trial court can re-examine the sanction question afresh at any stage, including at the conclusion of trial. On this basis, the appeals and writ petition were disposed of, with discharge not granted and the trial directed to proceed.

Lesson Learnt

Police and security personnel cannot automatically avoid prosecution over an alleged "fake encounter" merely by invoking a sanction requirement meant to protect genuine official acts; where the prosecution's case is that the act was not genuinely official, courts will generally let the trial proceed, leaving the accused free to establish the "official duty" defence with evidence as the trial unfolds.

Official source (sci.gov.in)View Judgment (PDF)

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