Gujarat High Court
Arjunsinh Dahyaji Vanzara vs State Of Gujarat on 7 July, 2022
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 6151 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ARJUNSINH DAHYAJI VANZARA
Versus
STATE OF GUJARAT
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Appearance:
MR. K.B. ANANDJIWALA, SENIOR ADVOCATE WITH MR. HARSH
V GAJJAR(7828) for the Applicant(s) No. 1
MR P P MAJMUDAR(5284) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
YAGNESHKUMAR S JOSHI(8074) for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 07/07/2022
CAV JUDGMENT
1. Rule. Learned advocates waives service of notice of rule on behalf of respective parties.
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2. The petitioner has filed this petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973, (for short "the Cr.P.C.") praying to quash and set aside the order dated 31.05.2019 passed by 9th Additional Sessions Judge, Vadodara in Summary Case No.1/2017, as well as the summons issued to the petitioner; further prayer was made for direction to the learned Sessions Court, Vadodara for accepting the Summary Report and for dropping the criminal proceedings arising out of the FIR being I-C.R. No.7/2016 lodged before the Vadodara Rural ACB Police Station under sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short "P.C. Act") qua the present petitioner.
3. It is alleged by the original complainant - respondent no.3 herein that land at Block No.1235 admeasuring 05463 sq. mtrs. was purchased by the respondent no.3 from Chandrakant Parshottam Chavda for a sale consideration of Rs.25,00,000/- and Entry No.5901 was recorded in favour of the respondent no.3. On 22.05.2015, the respondent no.3 had received a notice under section 135D of the Gujarat Land Revenue Code, wherein the respondent was called upon to verify if there was any objection against mutation of name of one Bhavik Yashwantsingh Chauhan.
Page 2 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 3.1 It is stated that the original complainant inquired with the office of Mamlatdar, Vadodara (Rural) about the entry in favour of one Bhavik Yashwantsingh Chauhan and filed objections; however, the original complainant has alleged that the petitioner and accused no.2 had demanded a bribe of Rs.One Lakh from the original complainant for upholding the objections and for setting aside the revenue entry in favour of the third party. It is further alleged that the bribe amount was settled at Rs.75,000/-, however, as the original complainant was not desirous to give bribe money, he lodged an FIR being I-C.R. No.7/2016 with Vadodara City A.C.B. Police Station. Thereafter, a trap was laid on 05.07.2016 at 5.00 p.m. 3.2 It is stated that the petitioner was released on regular bail vide order dated 12.07.2016 passed in Criminal Misc. Application No.1447/2016, whereby the learned Court below observed that neither the petitioner had demanded any bribe nor any bribe amount was recovered from the petitioner during the trap. It is further stated that pursuant to the detailed investigation, the respondent no.2 filed a Summary Report dated 10.07.2017 bearing Summary No.1/2007 in favour of the petitioner. It is stated that the charge-sheet has been filed qua the accused no.2.
Page 3 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 3.3 Being aggrieved by the same, the respondent no.3 had filed objections vide Exhibit-10 dated 16.02.2018 challenging the legality of the summary report filed by the respondent no.2 leveling allegations against the police machinery and therefore the respondent no.2 had filed a further report dated 26.04.2018 vide Exhibit-14 denying the allegations made by the original complainant stating the reasons justifying exoneration of the petitioner. It is stated that the original complainant filed further objections against the summary report vide Exhibit-17 praying for rejection of summary report and taking cognizance of the offence alleged qua the petitioner.
3.4 It is stated that vide impugned order dated 31.05.2019, the learned court below had rejected the summary report and directed the respondent no.2 to conduct further investigation by observing that the investigation needs to be done qua the aspect of recovery of cash of Rs.3,12,500/- from the car of the petitioner.
4. Mr. K.B. Anandjiwala, learned senior advocate along with Mr. Harsh V.Gajjar, learned advocate for the petitioner submitted that, the impugned order passed by the learned Court below ordering further investigation at the instance of objections preferred by the original complainant is not permissible in eyes of law in as much as a de facto complainant does not have locus to seek Page 4 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 further investigation or pray for taking cognizance of offence alleged qua the petitioner.
4.1 Mr. Anandjiwala, Senior advocate submits that the observations qua the aspect of cash recovered from the car of the petitioner are unsustainable, as the respondent no.2 had examined the maternal uncle of the petitioner qua such aspect, which had been explained with justifiable reasons that the petitioner had been lent the said amount by his maternal uncle for his personal needs and therefore such aspect has no nexus with the allegations made in the FIR itself and thus the impugned order suffers from factual as well as legal infirmity. He submits that so far as recovery of 25 dollars is concerned, the petitioner had kept the same to mark the remembrance and till date no case of disproportionate asset has been alleged against the petitioner and therefore the aspect of recovery of cash from the car of the petitioner cannot weigh against the petitioner. Mr. Anandjiwala submits that such material collected by the respondent no.2 was neither produced before the learned Court below nor the attention of the learned Court was drawn to such factual position.
4.2 Senior advocate Mr. Anandjiwala submits that the petitioner had already passed order dated 02.07.2016 in RTS Disputed Case No.137/2015, whereby the objections preferred by the respondent no.3 for setting Page 5 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 aside the Entry No.6004 was upheld and the case was disposed of and therefore the say of the original complainant in the FIR regarding the motive behind the commission of alleged offence is ill-founded and therefore the summary report filed by the respondent no.2 ought to have been accepted by the learned Court below. He submits that the element of demand, acceptance and recovery which are sine qua non for proving the offence alleged against the petitioner are missing in the present case and the same could not be proved from the evidence gathered during the investigation and therefore the summary report ought to have been accepted by the learned Court below.
4.3 Mr. Anandjiwala, learned senior advocate further submitted that the learned Court below failed to appreciate the fact that the respondent no.2 deemed fit to file a summary report against the petitioner and no charge sheet has been filed against the petitioner thus in absence of sanction for prosecution, the summons issued against the petitioner is arbitrary, illegal and perverse and therefore the summons dated 18.12.2017 also deserves to be quashed and set aside. He submits that the summary report could not have been rejected in absence of valid sanction for prosecution and even learned Court below cannot take cognizance against the petitioner in absence of sanction for prosecution.
Page 6 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 4.4 Mr. Anandjiwala further submitted that it is a settled principle of law that the process of a Court or order permitting further investigation cannot be used as a weapon of harassment against the accused when there is no material to connect the accused with crime and therefore petitioner does not deserve to be prosecuted and be subjected to further investigation when no cogent evidence could be found against the petitioner. Mr. Anandjiwala, further stated that the learned Court below has failed to appreciate that the petitioner had never made any demand of bribe in any telephonic conversation, on the contrary it was the original complainant, who in order to rope the petitioner in a false case, had called the petitioner to offer the bribe which was never accepted or recovered from the petitioner.
4.5 Senior advocate Mr. Anandjiwala further submitted that the learned Court below ought to have rejected the objections filed by the original complainant in view of the legal position that a closure report filed after due investigation and titled under section 169 Cr.P.C., is always to be read as a report under section 173 and when such report indicates no evidence, then the learned Court below ought to have accepted such report. Mr. Anandjiwala stated that the learned Court below has erred in not considering the settled position of law that the formation of opinion whether to place the accused for trial is of the office in charge of the police station and the Page 7 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 learned Court below cannot compel the investigating agency to form a particular opinion and submit report according to such opinion.
4.6 Mr. Anandjiwala submits that the respondent no.2 has duly investigated all the aspects of the case and nothing remains to be investigated further as the earlier investigation is satisfactory and complete. He submits that the petitioner is adversely affected by the impugned order of the Court below because his promotion from Mamlatdar to Deputy Collector was already cleared by Departmental Promotion Committee and was approved by the GPSC, prior to the date of ACB trap but formal promotion order was not issued therefore the petitioner had remained deprived from promotion for about more than two years.
4.7 Senior advocate Mr. Anandjiwala in support of his submission relied on the judgments: (i) Abhinandan Jha And Ors. Vs. Dinesh Mishra, reported in AIR 1968 SC 117; (ii) Sanjaysinh R.Chavan Vs. Dattatray Gulabrao Phalke and Ors., reported in 2015 (3) SCC 123 (iii) P.Satyanarayana Murthy Vs. District inspector of Police, State of Andhra Pradesh, reported in 2015 (10) SCC 152
(iv) State of Gujarat Vs. Shah Lakhamshi Umarshi, reported in AIR 1966 Guj. 283 (v) Gaurishankar P.Joshi Vs. State of Gujarat, reported in 2016 (3) GLR 2237.
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5. Mr. Panthil P.Majmudar, learned advocate for respondent no.3 in reply to the contentions submitted that, the present petition is not maintainable in law. The impugned order is reasoned order and the present petitioner has no locus to prefer the present petition. Moreover, the impugned order dated 31.05.2019 is revisable order and therefore the present petition may not be entertained. Mr. Majmudar submits that the present petitioner has refused to give his voice samples and therefore adverse inference can be drawn against the petitioner since he is not ready for spectrography test. He submits that even report under section 169 Cr.P.C. is not maintainable.
5.1 Mr. Majmudar further stated that the point of sanction as is sought to be agitated before this Court was not so agitated before the learned trial Court, therefore, such a new plea cannot be raised in this petition. He stated that the voice sample of the original complainant with regard to telephonic talk with the petitioner was taken and identified. Thus, since the petitioner refused to give voice samples, adverse inference can be drawn as part of the evidence is clearly proved. He states that call data record in the present case and the script clearly establishes more than prima facie case against the petitioner. Mr. Majmudar states that the prosecution has not even applied for sanction against the petitioner, which shows that he is highly influential. It is stated that Page 9 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 as per the seizure panchnama a cover was found in the cabin of the petitioner, wherein survey number of village:
Sevasi was written and Rs.15,000/- was found in the cover and thus this aspect is also required to be investigated since the petitioner has clearly indulged himself in corrupt means for passing orders which he has authority to pass.
5.2 Mr. Majmudar further submits that even from the car of the petitioner dollars and huge cash were found. He submits that as per the transcript of calls with the co-accused, complainant continuously insisted to talk with the petitioner; thus, it would be clear that the petitioner is the main person and the demand is supported by such corroborative evidence.
5.3 Advocate Mr. Majmudar submits that the deponent has purchased the land at block no.1235 admeasuring 5463 sq. mtrs. at village Itola on 21.07.2014, pursuant to which the same was mutated in the name of the deponent vide Entry No.5901 and thereafter the original complainant has got the notice under section 135D on 22.05.2015 for submitting his objection against the mutation and after submitting his objection, the original accused no.2 demanded Rs.1,00,000/- for the favourable order. He submits that the name of the original complainant has been mutated vide Entry No.5901, which has been certified, the Page 10 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 petitioner has issued 135D notice for submitting his objection regarding entry no.6004 with an intention to take bribe amount from the original complainant.
5.4 Mr. Majmudar further submitted that the original complainant has produced recording of the telephonic conversation before the ACB officials and filed complaint and thereafter trap was laid and the bribe amount was given to the original accused no.2, which was recovered and Rs.2,60,000/- Indian currency and Rs.52,500/- Dollars were recovered from the Car of the petitioner. On 10.11.2016, the original accused no.2 lend his voice samples for voice spectrographic test, but the petitioner denied to lend his voice sample.
5.5. Advocate Mr. Majmudar stated that the investigating officer in para-2 of the summary report, has made a menttion that by listening to the telephonic conversation between petitioner and the original complainant, it cannot be specifically said that the petitioner has demanded any bribe amount, and in para-3 of the report, the investigating officer has said that during the trap also it did not appear that the petitioner had demanded any bribe amount through telephone or in person. In para-4 of the said report, the investigating officer has stated that listening to the voice recorded during the trap, there is no recording of any conversation between the original complainant and the petitioner, nor the petitioner has met the original complainant in person.Page 11 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022
R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 The I.O. had concluded this as it cannot be said that the original accused no.2 has accepted the bribe amount on behalf of the petitioner.
5.6 Mr. Majmudar further submitted that the investigating officer has not sent any notice to the petitioner to lend his voice sample, nor has filed any report in the court regarding non-cooperation of the petitioner by not lending his voice sample, and thus have tried to save the petitioner from the alleged offence. He submits that earlier the Investigating Officer has filed his objection against the bail application of the petitioner stating that there is sufficient proof against the petitioner to show his involvement in the alleged offence, thereafter contradictory stand has been taken in his report under section 169.
5.7 In support of his submissions, Mr. Majmudar relied on the judgments (i) in case of Satishkumar Nylchand Shah Vs. State of Gujarat And Others, reported in (2020) 4 Supreme Court Cases 22 (ii) in case of Bharat A.Patel - Director Of M/s. Hytaisun Magnetics Ltd. Vs. Mahendrabhai Naranbhai Patel [2013 (0) GLHEL-HC 230617] (iii) K.K. Patel And Another Vs. State of Gujarat And Another, reported in (2000) 6 SCC 195 (iv) in case of Awadh Narain Lal Vs. State of U.P. and Another, reported in 1985 SCC OnLine All 1024: 1986 Cri LJ 1233 (v) in case of Atul Pandey Alias Param Pragyan Pandey Vs. State of U.P. and Another.
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6. Heard learned advocates appearing for the parties and perused the material produced on record.
7. The noticeable difference between Section 169 and 170 Cr.P.C. is about the discretion exercised by the police, whether to send the accused for trial. Section 169 Cr.P.C. gives power to the police to release accused when evidence are not sufficient, while Section 170 Cr.P.C. deals with the cases to be send to Magistrate when there is no deficiency in evidence or reasonable ground of suspicion exist. Provision of Sections 169 and 170 refer to the stage before the completion of investigation. Sections 169 and 170 provides for the steps to be taken by the police officer with respect to an accused in custody. The expressions used in these sections are different from the expressions used in section 173, which provides what the investigating officer has to do after the completion of the investigation. Section 173(2) Cr.P.C. is for the report of the police to the Magistrate empowered to take cognizance of the offence as soon as the investigation is completed. Section 173(5) Cr.P.C. is in context with such report, where in a case section 170 applies. Section 173(8) Cr.P.C. gives power to the officer in charge of the police station for further investigation. The Magistrate during that process has no power to issue suo motto direction for further investigation.
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8. The role of the Court of the Magistrate under Section 173(8) of the Cr.P.C. has been dealt with by the Hon'ble Supreme Court in the case of Amrutbhai Shambhubhai Patel Vs. Sumanbhai Kantibhai Patel And Others, reported in AIR 2017 Supreme Court
774. It was held that, though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefore to the Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.
8.1 The Hon'ble Supreme Court in the said judgment further held that, "un-amended and the amended sub-Section (8) of Section 173 of the Code if read in juxtaposition, would overwhelmingly attest that by the latter, the investigating agency/officer alone has been authorized to conduct further investigation without Page 14 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 limiting the stage of the proceedings relatable thereto. This power qua the investigating agency/officer is thus legislatively intended to be available at any stage of the proceedings. The recommendation of the Law Commission in its 41st Report which manifesting heralded the amendment, significantly had limited its proposal to the empowerment of the investigating agency alone. If power of Magistrate, to order further investigation even after the cognizance is taken, accused persons appear and charge is framed, is acknowledged or approved, same would be discordant with the state of law, as enunciated by Supreme Court and also relevant layout of the Cr.P.C. adumbrated. Additionally had it been intention of the legislature to invest such a power, Section 173(8) of Cr.P.C would have been worded accordingly to accommodate and ordain same having regard to the backdrop of the incorporation thereof. In a way, in view of the three options open to the Magistrate, after a report is submitted by the police on completion of the investigation, Magistrate, in both the contingencies, namely; when he takes cognizance of the offence or discharges the accused, would be committed to a course, whereafter though the investigating agency may for good reasons inform him and seek his permission to conduct further investigation, he suo motu cannot embark upon such a step or take that initiative on the request or prayer made by the complainant/informant. Not only such power to Magistrate to direct further investigation suo motu or Page 15 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 on the request or prayer of the complainant/informant after cognizance is taken and the accused person appears, pursuant to the process, issued or is discharged is incompatible with the statutory design and dispensation, it would even otherwise render provisions of Section 311 and 319 Cr.P.C. whereunder any witness can be summoned by a Court and a person can be issued notice to stand trial at any stage, in a way redundant. Axiomatically, thus impugned decision annulling the direction of the learned Magistrate for further investigation is unexceptional and does not merit any interference."
8.2 The first issue that was raised by advocate Mr. P.P. Majmudar is about the locus of the petitioner to challenge the order of the Special Judge. Here the petitioner has challenged the order of the Special Judge on the protest petition filed by the complainant against the report of the Investigating Officer filed under Section 169 Cr.P.C. The complainant had urged before the Special Judge (A.C.B.) Vadodara by filing application on 16.02.2018, that the Investigating Officer had no right to file report under section 169 Cr.P.C., in spite of that, to defend accused no.1, false report has been filed. The complaint was given for the alleged offence on 05.07.2016, wherein allegation was made that both the accused had demanded bribe money of Rs.75,000/-. The report under section 169 Cr.P.C. is filed on 10.07.2017 by police inspector office, Vadodara, Rural A.C.B. Police Page 16 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 Station. The police contended that present petitioner - accused no.1 was not found to have had any personal telephonic conversation with the accused about the dealings of or for bribe. The C.D. of the conversation with the petitioner was produced. Their talk in Gujarati was "Pachi Rubru Kale Maliye Hu Kyak Bahar Chu, office", which means 'we would meet later personally tomorrow, I am out', then added 'in office', to the said line. According to the police, it cannot be believed to be some conversation in context of dealing for bribe. The police has also stated that during the period of trap, there was no direct talk of the complainant with accused no.1, nor there is any conversation recorded in the voice recorder of accepting bribe money, nor accused no.1 instructed either personally or telephonically to give the bribe money to accused no.2; nor has accused no.1 accepted the money. The police submitted that they had not found sufficient evidence against accused no.1 during investigation to file a charge-sheet.
9. The challenge to the order of the Special Judge is given by the petitioner against whom no criminality was found by the Investigating Officer. The complainant moved a protest petition against the report under Section 169 Cr.P.C. filed by the Investigating Officer, A.C.B. Vadodara (Rural). The police had filed the charge-sheet against respondent no.2. Objections were raised by the complainant on 25.01.2018 with the prayer to set aside the report of the police filed under section 169 Cr.P.C., Page 17 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 and making a prayer to take cognizance against the present petitioner as an accused and for an order of trial. Thereafter on, 16.02.2018 again the complainant moved an application making a prayer for an order asking for explanation in context of filing of report under Section 169 Cr.P.C.
9.1 Here in the present case, the grievance raised by petitioner is towards the order of the learned Special Court rejecting the report of the Investigating Officer under Section 169 Cr.P.C. The Special Judge (ACB) ordering for further proceedings against the present petitioner i.e. accused no.1, and thus when summons had been issued against him.
9.2 It appears from the order that accused - present petitioner, had not urged for making him a party or giving him audience to the protest petition filed by the complainant. It is not necessary for the Court concerned to hear any accused or potential accused. Even Section 173(8) Cr.P.C. does not lay down any obligation to hear the accused.
9.3 The Hon'ble Supreme court, in case of Satishkumar Nylchand Shah Vs. State of Gujarat and Others (supra) held that, hearing of accused by Court before direction for further investigation made, is not obligatory. The power of court to direct police to conduct further investigation cannot have any inhibition; there is Page 18 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 nothing in section 173(8) to suggest that court is obliged to hear accused before any such direction is made. It was held that casting of any such obligation on court, would only result in encumbering court with burden of searching for all potential accused to be afforded with opportunity of being heard. As law does not require it, Magistrate cannot be burdened with such obligation. It was further held that co-accused person against whom charge-sheet was already filed and against whom trial was in progress, is not required to be heard and/or has no locus standi, in proceedings initiated by filing of application by victim under section 173(8) Cr.P.C. for further investigation qua another accused, against whom no charge-sheet was filed till date.
10. It is to be noted that the complaint was filed under Sections 7, 12, 13(1)(d) and 13(2) of the P.C. Act before the Vadodara Rural ACB Police Station on 05.09.2016. Section 19 of the P.C. Act, as prior to the amendment dated 26.07.2018, mandated that the Court cannot take cognizance of the offence under Sections 7, 12 and 13 of the Act provided that there is sanction of the concerned authority for prosecution. Admittedly, since the police had filed report under Section 169 Cr.P.C., there would not be any proceedings for procuring the sanction from the concerned authority since the police had not found any evidence to file charge-sheet against the petitioner.
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11. This High Court in case of Gaurishankar P.Joshi Vs. State of Gujarat (supra), in regard to section 19 of the P.C. Act, held that, in the absence of sanction, Special Court has no jurisdiction to take cognizance of the offence under sections 7, 12 and 13 of the Act. It was held that trial conducted without sanction of Government would be void ab initio; the saving clause (3) of Section 19 that any finding, sentence or order shall not be reversed on the ground of absence of sanction, is applicable to the proceeding after commencement of trial and not before that. It was further held that trial in the absence of sanction; direction issued by special Judge for reconsideration of question of sanction, would be beyond his jurisdiction and such a direction may adversely affect the validity of sanction, and thus the impugned order taking cognizance of offence under sections 7, 12 and 13 of the Act passed by Special Judge, was quashed.
12. Since the law does not permit cognizance of offence without sanction of the concerned authority, and when the ultimate authority is the Investigating Officer who is to decide about the investigation, the order rejecting the report under Section 169 Cr.P.C. and directing for undertaking further proceedings would become vulnerable, as that would affect the present petitioner and such order probably would subject him to become an accused in the matter where the Investigating Officer does not propose to even file any charge-sheet. Thus, the petitioner would have all the right to challenge Page 20 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 the said order.
12.1 Section 397(2) applies to the exercise of revisional powers of the High Court. Section 482 regulates the inherent power of the High Court to pass orders necessary in order to prevent the abuse of the process of the Court. The inherent power of the High Court under Section 482 does not stand repelled when the revisional power under Section 397 overlaps. Nothing in Cr.P.C., not even Section 397 can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. Not the interlocutory order, but the final order is clearly capable of being considered in the exercise of inherent power, if the glaring injustice stares the Court in the face. Even, in the case, where it is more than purely interlocutory order and less than a final disposal, the inherent power can be exercised. Even bar under Section 397(2) will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The provisions of Section 397, Cr.P.C. do not constitute or operate as a bar to the exercise by the High Court of its inherent powers under Section 482 Cr.P.C.
12.2 The Investigating Officer is authorized to take final step in the investigation; that final step is taken only by the police and by no other authority. In Abhinandan Jha And Ors. Vs. Dinesh Mishra (supra), the Hon'ble Supreme Court had already pointed out that the Page 21 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected, a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority.
13. The case so pointed was that both the accused had demanded bribe money. However, Investigating officer did not find any existence of demand, acceptance or recovery of money from the present petitioner. It has been submitted that there were phone conversations of the petitioner with the complainant. The Investigating Officer has referred to the conversations so recorded and has reflected the relevant conversations in his report to conclude that the conversations are not in context of dealing for any bribe.
13.1 Section 169 Cr.P.C. deals with the situation where the evidence is found deficient against the accused. The section thus, empowers the officer in-charge of the police station, for if it appears that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, if Page 22 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 such person is in custody to release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial. Thus, Section 169 Cr.P.C. gives authority to the Investigating Officer to release the accused, when there are no sufficient evidence or reasonable ground of suspicion to forward the accused to the Magistrate for trial.
13.1.1 In case of Anil Kumar And Others Vs. M.K. Aiyappa And Another, reported in (2013) 10 SCC 705, the Apex Court observed that, sanction under section 19(1) is a precondition for ordering investigation against public servant under section 156(3) Cr.P.C. even at pre- cognizance stage and non-effect of absence of sanction in some circumstances under section 19(3) does not mean that requirement of sanction is not mandatory. It was held that investigation under section 156(3) Cr.P.C. cannot be ordered without previous sanction under section 19(1) of the P.C. Act.
13.2 It would be relevant to refer to the judgment of the Hon'ble Court in case of Sanjaysinh R.Chavan Vs. Dattatray Gulabrao Phalke and Ors. (supra), wherein it was observed that, the special magistrate accepted the closure report, and proceedings against SDM were closed and he was discharged. The High Court found that Page 23 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 conversation between complainant and SDM was recorded by the complainant as was directed by investigating agency, which clearly prima facie reveals demand by SDM. Special Magistrate, having seen the records and having heard the parties, has come to conclusion that no offence is made out against the appellant SDM so as to prosecute him. It was held by the Hon'ble Supreme Court that, once the prosecution is of the view that no case is made out so as to prosecute an accused, unless the court finds otherwise, there is no point in making a request for sanction for prosecution; it was observed that if prosecution is simply vexatious, sanction for prosecution is not to be granted and that is one of the main considerations to be borne in mind by competent authority while considering whether sanction is to be granted or not and that no court can issue a positive direction to an authority to give sanction for prosecution. For the ready reference para 9, 10, 13, 14, 16 and 19 of the said judgment reads as under:
"9. Two questions arise for consideration:
9.1 (i) Once the Magistrate of competent jurisdiction, on proper application of mind, decides to accept the closure report submitted by the police under Section 173(2) Cr.PC, whether the High Court is justified in setting aside the same in exercise of its revisional jurisdiction merely because another view may be possible?
9.2 (ii) Whether the High Court is within its jurisdiction to direct the investigating officer to make a request for sanction for prosecution Page 24 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 from the competent authority?
10. At the stage of taking cognizance of a case what is to be seen is whether there is sufficient ground for taking judicial notice of an offence with a view to initiate further proceedings. In Chief Enforcement Officer v.
Videocon International ltd., this Court has analysed the process and it has been held as follows:
19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence said to have been committed by someone.
20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings.
Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance."
13. Cognizance is a process where the court takes judicial notice of an offence so as to initiate proceedings in respect of the alleged violation of law. The offence is investigated by the police. No doubt, the court is not bound by the report submitted by the police under Section 173(2) of Cr.PC. If the report is that no case is made out, the Magistrate is still free, nay, Page 25 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 bound, if a case according to him is made out, to reject the report and take cognizance. It is also open to him to order further investigation under Section 173(8) of Cr.PC.
14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.
16. It is to be noted that in the first complaint filed by the second respondent - the de facto complainant, there is no allegation for any demand for bribe by the appellant. The allegation of demand is specifically against accused no.2 only. That allegation against the appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is the conversation that is said to be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Page 26 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 Maharashtra vide Annexure-B report has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. Learned Counsel for the respondents submit that the conversation has been translated and the same has been verified by the panch witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in Anvar P.V. v. P.K. Basheer and others."
19. Once the prosecution is of the view that no case is made out so as to prosecute an accused, unless the court finds otherwise, there is no point in making a request for sanction for prosecution. If the prosecution is simply vexatious, sanction for prosecution is not to be granted. That is one of the main considerations to be borne in mind by the competent authority while considering whether the sanction is to be granted or not. In Mansukhlal Vithaldas Chauhan v. State of Gujarat, this Court has in unmistakable terms made it clear that no court can issue a positive direction to an authority to give sanction for prosecution.
"32. By issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives to the Secretary and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Secretary was not allowed to consider whether it would be feasible to prosecute the appellant; whether the complaint of Harshadrai of illegal gratification which was sought to be Page 27 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 supported by "trap" was false and whether the prosecution would be vexatious particularly as it was in the knowledge of the Government that the firm had been blacklisted once and there was demand for some amount to be paid to the Government by the firm in connection with this contract. The discretion not to sanction the prosecution was thus taken away by the High Court."
13.3 The above referred judgment of Sanjay Singh R.Chauhan deals with the issue when closure report is submitted by the police under Section 173(2) Cr.P.C. The expression "cognizance" has been explained while referring to the concept of "taking cognizance", and, thus have held that, taking of cognizance is sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down. In a case registered under the P.C. Act, the pre-requisite of taking cognizance is the sanction given by the competent authority to prosecute. Without sanction, no Court can take cognizance of the offence referred in the Section; and no Court can issue a positive direction to an authority to give sanction for prosecution.
13.4 Much reliance has been placed by learned advocate Mr. P.P. Majmudar on the case of Arun Kumar Aggarwal Vs. State of Madhya Pradesh & Ors., reported Page 28 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 in 2011(0) AIJEL SC 50309. The issue involved for consideration before the Apex Court was, whether the High Court was justified in treating the operative portion of the order of the learned Special Judge as a direction issued to the sanctioning authority to sanction the prosecution of the accused. While dealing with the expression "Direction" and "orbiter dictum", it was observed in para-32 as under:
"32. In the facts and circumstances of the present case, we are of the opinion that the refusal of the learned Special Judge, vide its Order dated 26.4.2005, to accept the final closure report submitted by Lokayukta Police is the only ratio decidendi of the Order. The other part of the Order which deals with the initiation of Challan proceedings cannot be treated as the direction issued by the learned Special Judge. The relevant portion of the Order of the learned Special Judge dealing with Challan Proceeding reads as "Therefore matter may be taken up seeking necessary sanction to prosecute the accused persons Raghav Chandra, Shri Ram Meshram and Shahjaad Khan to prosecute them under Section 13(1-d), 13 (2) Anti Corruption Act and under Section 120-B I.P.C and for necessary further action, case be registered in the criminal case diary." The wordings of Page 29 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 this Order clearly suggest that it is not in the nature of the command or authoritative instruction. This Order is also not specific or clear in order to direct or address any authority or body to perform any act or duty. Therefore, by no stretch of imagination, this Order can be considered or treated as the direction issued by the learned Special Judge. The wholistic reading of this Order leads to only one conclusion, that is, it is in the nature of `Obiter Dictum' or mere passing remark made by the learned Special Judge, which only amounts to expression of his personal view. Therefore, this portion of the Order dealing with Challan proceeding, is neither relevant, pertinent nor essential, while deciding the actual issues which were before the learned Special Judge and hence, cannot be treated as the part of the Judgment of the learned Special Judge."
13.5 In Arunkumar Agarwal (supra), it was observed that the part of the order which deals with the initiation of challan proceedings cannot be treated as a direction by the learned Judge, and was observed that such wordings in the order suggests that it was not in the nature of command or authoritative instructions and therefore it was observed that the order cannot be considered or treated as a direction issued by the learned Special Judge. It was concluded that, it was in the nature of Page 30 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 Orbiter Dictum or mere passing remark made by the learned Special Judge, which only amounts to expression of his personal view, and therefore the portion of the order dealing with the Challan proceeding was found neither relevant, pertinent nor essential while deciding the actual issues which were before the Special Judge.
13.6 Here, in the present case, the learned Special Judge has not accepted the report under Section 169 Cr.P.C. and had ordered for further proceedings against the accused - present petitioner. The direction for further proceedings would be of no relevance, since the Investigating Officer had while filing report under Section 169 Cr.P.C., found that there was no sufficient evidence to place the accused for trial.
14. Section 19 of the P.C. Act was amended with effect from 26.07.2018, which reads thus:
"19. Previous sanction necessary for prosecution.--(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction 1 [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)]--
(a) in the case of a person who is employed in Page 31 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
[Provided that no request can be made by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless -
(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and
(ii) the court has not dismissed the complaint under section 203 of the Code of Page 32 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 Criminal Procedure, 1973 (2 of 1974) and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:
Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant.
Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt.
Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month.
Provided also that the Central Page 33 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 Government may, for the purpose of
sanction for prosecution of a public servant, prescribe such guidelines as it considers necessary.
xxx xxx xxx xxx xxx xxx xxx xxx xxx"
14.1 The Special Court direction for further investigation was issued on 31.05.2019. Section 19 of the P.C. Act clearly lays down that no Court can take cognizance of offence punishable under Sections 7, 11, 13 and 15, alleged to have been committed by the public servant except with the previous sanction of the competent authority. Even after the amendment so made in Section 19 of the P.C. Act, no request can be made personally by any other person than a police officer or an officer of the Investigating Agency or other law enforcement authority to the appropriate government or the competent authority, as the case may be, for previous sanction of such government or authority for taking cognizance by the Court of any of the offences specified. However, the amended section has tried to resolve the situation, the aggrieved who seeks to initiate process need to file a complaint in the competent Court for the alleged offence for which the public servant is sought to be prosecuted and when Court has not dismissed the complaint under Section 203 Cr.P.C. then the Court directs the complainant to obtain the sanction for further proceedings. The proviso further lays down that in case of request from the person other than police officer or an Page 34 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 officer of an investigating agency or other law enforcement authority, to the appropriate Government or competent authority, shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant. Discretion to sanction for prosecution is absolute and vested solely in the sanctioning authoirty. Thus, in case when no previous sanction is obtained for necessary prosecution, then in that case, the police officer would not be competent to make a request for sanction for taking cognizance of the offence by Court.
14.2 Considering this provision of the Act, when in a case, the Investigating Officer does not find any case to prosecute the accused, the question for obtaining sanction by him for prosecution would not arise, and further when the report has been filed under Section 169 Cr.P.C. for the alleged offence under Sections 7, 12, 13(1)
(d) and 13(2) of the P.C. Act, no Court can take cognizance of the offence.
14.3 Here in this case, a protest petition was filed by the complainant. Taking into consideration the amendment in the provision of Section 19 of the P.C. Act, the Special Court could have ordered for registering the protest petition as a complaint which satisfies the ingredients under section 2(d) of the P.C. Act, and could have examined the complainant by following Section 200 Page 35 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 of the Cr.P.C. and when the complaint is not dismissed by the Court under section 203 Cr.P.C. may have directed the complainant to obtain the sanction for prosecution against the public servant for further proceedings and in the process the accused would have the opportunity of being heard before the appropriate government or the competent authority. Unless a sanction to prosecute is on record, no summons could be issued against the potential accused by the Court. But it is equally true that no Magistrate could be compelled to treat the Protest Petition as a complaint, the remedy then for the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Cr.P.C.
15. The position thus emerge is that no order even can be passed under Section 156(3) Cr.P.C. without valid sanction, nor can any direction be given to the Investigating Officer to obtain sanction after a report is filed under Section 169 Cr.P.C. However, in a case the Magistrate as the Special Court under the P.C. Act does not agree with the report of the police under Section 169 Cr.P.C. or closure report under Section 173(2) Cr.P.C., can issue notice to the complainant to be heard or can ask to file fresh complaint, or on his protest petition, to consider proceeding against the accused as per Section 200 of Cr.P.C. which is a post-cognizance stage, directing the complainant to obtain sanction for prosecution Page 36 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022 R/SCR.A/6151/2019 CAV JUDGMENT DATED: 07/07/2022 against the public servant for further proceeding.
16. Thus considering the provisions of law, prayer for dropping the criminal proceedings arising out of the FIR being I-C.R. No.7/2016 lodged before the Vadodara Rural ACB Police Station under sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, cannot be granted, but the order passed on 31.05.2019 directing the Investigating Officer to proceed further for investigation should be considered as 'Orbiter Dictum' and not as any direction, since the Court would have no authority to direct the Investigating Officer for further proceedings when police in charge of police station had concluded to release the accused for want of evidence.
17. In the result, the petition is partly allowed. The order dated 31.05.2019 passed by 9th Additional Sessions Judge, Vadodara in Summary Case No.1/2017, as well as the summons issued to the petitioner are quashed and set aside. Rule made absolute to the aforesaid extent.
(GITA GOPI, J.) Pankaj Page 37 of 37 Downloaded on : Mon Jul 11 21:43:58 IST 2022