Patna High Court - Orders
Prem Prakash Sharma vs The State Of Bihar Through General ... on 23 April, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court Cr. WJC No.700 of 2013 (08) dt.23-04-2014
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.700 of 2013
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Sunil Nath Mishra
.... .... Petitioner/s
Versus
The State of Bihar Through Director General Vigilance & Anr.
.... .... Respondent/s
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with
Criminal Writ Jurisdiction Case No.712 of 2013
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Prem Prakash Sharma
.... .... Petitioner/s
Versus
The State of Bihar Through General Vigilance & Anr.
.... .... Respondent/s
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Appearance :
(In Cr. WJC No.700 of 2013)
For the Petitioner/s : Mr. Kaushlendra Kumar Singh,
Mr. Rajendra Prasad &
Mr. Anjani Kumar Mishra-Advocates
For the Respondent/s : Mr. Patanjali Rishi &
Mr. Babita Kumari-AC to Ramakant Sharma-
Sr. Advocate-L.O. (Ic)Vigilance
(In Cr. WJC No.712 of 2013)
For the Petitioner/s : Mr. Mr. Kaushlendra Kumar Singh,
Mr. Rajendra Prasad &
Mr. Anjani Kumar Mishra-Advocates
For the Respondent/s : Mr. Patanjali Rishi &
Mr. Babita Kumari-AC to Ramakant Sharma-
Sr. Advocate-L.O. (Ic)Vigilance
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER
08 23-04-2014Head learned counsel for the petitioners as well as learned counsel for the Vigilance.
Petitioners who happens to be public servant have asked for following relief:-
1. that this is an application on behalf of the petitioner praying inter alia to quash the First Information Report No.31 of Patna High Court Cr. WJC No.700 of 2013 (08) dt.23-04-2014 2013 dated 24th June, 2013 corresponding to Complaint Case no.50 of 2009 for commission of the offences U/Ss 420/467/468/471 and 120B of the Penal Code being read Section 3/12(2) of the PC Act to the extent of this petitioner in pursuance of the order dated 26th February 2013 passed by the Special Judge Vigilance North Bihar, Muzaffarpur in Complaint Case no.50 of 2009 whereby and whereunder, the learned Judge, accepting the submission of the complainant, has ordered for institution of FIR against five persons which includes the name of the petitioner as well.
Subsequently, by way of filing of I.A. No.836 of 2014, petitioner has also drilled order dated 26.2.2013 within the ambit of instant writ petition with a prayer to quash the same as, registration of case bearing 31 of 2013 has been effected in pursuance of above referred order passed in terms of Section 156(3) of the Cr.P.C. in connection with Complaint Case no.50 of 2009.
Learned counsel for the petitioners submitted that one Triloki Prasad Verma had instituted a complaint case no.50 of 2009 against the then C.O., Mushari Anchal, the then D.C.L.R. along with present one, the then Collector, C.I., Karmchari along with private individuals. It has also been submitted that learned Patna High Court Cr. WJC No.700 of 2013 (08) dt.23-04-2014 Special Judge Vigilance, North Bihar, Muzaffarpur had directed the vigilance to register a case in accordance with Section 156(3) of the Cr.P.C. and on account thereof, instant case took birth.
It has been contended on behalf of petitioners that the order for registration of the case in terms of Section 156(3) of the Cr.P.C. in absence of sanction order is bad as has been held by the Hon'ble Apex Court in Anil Kumar & Ors. v. M.K. Aiyappa and another reported in 2013(10) SCC 705.........................
The learned AC to Ramakant Sharma representing the Vigilance fairly concedes.
For better appreciation, the relevant paras of Anil Kumar (supra) is quoted below.
"10. We may first examine whether the Magistrate, while exercising his powers under Section 156(3) Cr.P.C., could act in a mechanical or casual manner and go on with the complaint after getting the report.
11. The scope of the above mentioned provision came up for consideration before this Court in several cases. This Court in Maksud Saiyed case (supra) examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that Patna High Court Cr. WJC No.700 of 2013 (08) dt.23-04-2014 where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.
12. We will now examine whether the order directing investigation under Section 156(3) Cr.P.C. would amount to taking cognizance of the offence, since a contention was raised that the expression "cognizance" appearing in Section 19(1) of the PC Patna High Court Cr. WJC No.700 of 2013 (08) dt.23-04-2014 Act will have to be construed as post-cognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act.
13. The expression "cognizance" which appears in Section 197 Cr.P.C. came up for consideration before a three-Judge Bench of this Court in State of U.P. v. Paras Nath Singh8, (2009) 6 SCC 372, and this Court expressed the following view:(SCC pp.375, para 6) "6. .....‟10........And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty.
The section not only specifies the persons to whom the protection is afforded but it also specifies the Patna High Court Cr. WJC No.700 of 2013 (08) dt.23-04-2014 conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, „no court shall take cognizance of such offence except with the previous sanction‟. Use of the words „no‟ and „shall‟ makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black‟s Law Dictionary the word „cognizance‟ means „jurisdiction‟ or „the exercise of jurisdiction‟ or „power to try and determine causes‟. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty."
14. In State of W. B. v. Mohd. Khalid9, (1995) 1 SCC 684, this Court has observed as follows:
"13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the Patna High Court Cr. WJC No.700 of 2013 (08) dt.23-04-2014 initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out."
The meaning of the said expression was also considered by this Court in Subramanian Swamy case6.
15. The judgments referred to herein above clearly indicate that the word "cognizance" has a wider connotation and not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) Cr.P.C., obviously, he has not taken cognizance of the offence and, therefore, it is a pre- cognizance stage and cannot be equated with post- cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 Cr.P.C. and the next step to be taken is to follow up under Section 202 Cr.P.C. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre- Patna High Court Cr. WJC No.700 of 2013 (08) dt.23-04-2014 cognizance stage.
16. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore, clothed with all the magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options. He may take cognizance of the offence under Section 190 Cr.P.C. or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) Cr.P.C. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) Cr.P.C.
17. We may now examine whether, in the above mentioned legal situation, the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre- cognizance stage.
18. Section 2(c) of the PC Act deals with the definition of the expression "public servant" and provides under Clauses (viii) and (xii) as under: Patna High Court Cr. WJC No.700 of 2013 (08) dt.23-04-2014
"2. (c )(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty.
"(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority."
19. The relevant provision for sanction is given in Section 19(1) of the PC Act, which reads as under:
"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-
a) in the case of a person who is employed in 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 Patna High Court Cr. WJC No.700 of 2013 (08) dt.23-04-2014 removeable 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."
20. Section 19(3) of the PC Act also has some relevance; the operative portion of the same is extracted hereunder:
"19. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
a) no finding, sentence or order passed by a special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of, or any error, omission or irregularity in the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
(b)-(c) * * *
21. Learned senior counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention.
Sub-section (3) of Section 19 has an object to Patna High Court Cr. WJC No.700 of 2013 (08) dt.23-04-2014 achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanian Swamy6 cases.
22. Further, this Court in Army Headquarters v. CBI10 opined as follows: (SCC p. 261, paras 82-83) "82. Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to Patna High Court Cr. WJC No.700 of 2013 (08) dt.23-04-2014 protect him.....
83. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio....."
Consequent thereupon, the order dated 26.02.2013 passed in Complaint Case no.50 of 2009 and its ultimate resultant by way of drawing of vigilance case no.31 of 2013 is quashed and I.A. No.835 of 2014 and I.A. No.836 of 2014 along with original petition is allowed.
(Aditya Kumar Trivedi, J) Vikash/-