Punjab-Haryana High Court
Naginder Singh Rana vs State Of Punjab And Ors. on 6 May, 2002
Equivalent citations: 2002CRILJ3124
Author: R.C. Kathuria
Bench: R.C. Kathuria
ORDER R.C. Kathuria, J.
1. Naginder Singh Rana, petitioner, seeks quashing of case bearing FIR No. 39 dated 6-5-1994 registered under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 1988 Act) and Sections 409, 167, 218, 419, 420, 465, 468, 471, I.P.C., with police station Kotwali, District Faridkot, and subsequent proceedings including the report submitted under Section 173 of the Code of Criminal Procedure which had been filed without obtaining sanction to prosecute the petitioner as required under Section 197, Cr.P.C.
2. The present case was registered on the basis of letter No. 1010/R/IG/INV dated 31-8-1992 written by Ramesh Lal Jain, District Convener, LPG Dealers Association, Faridkot, addressed to Inspector General of Police, Internal Vigilance, Punjab, Chandigarh. It was stated therein that Naginder Singh Rana, petitioner-accused had falsely registered case bearing FIR No. 26 dated 18-3-1992 against M/s. Jain Gas Agency, Faridkot. According to the allegations made, Naginder Singh Rana who was posted as Sub-Inspector in C.I.A. Staff, Faridkot, had raided the office and godown of M/s. Jain Gas Agency, Faridkot. He counted the filled, empty and defective cylinders kept in the godown and tallied the same with the stock register. As per the stock register, 767 cylinders were accounted for but he took 747 cylinders from the godown and 20 cylinders from the cart (Rehra) in the Bazaar which were loaded for distribution to the customers. Thereafter, he took those gas cylinders to police station Kotwali, Faridkot. In the report lodged, he showed recovery of 743 cylinders instead of 767 actually taken into possession from the godown and cart (Rehra) and in this manner, misappropriated 24 cylinders which consisted of 20 filled cylinders and 4 cylinders which were shown to be sold in black market. Naginder Singh Rana misused his office by getting a case registered because earlier he had taken Rs. 20,000/- in cash as bribe from M/s. Jain Gas Agency by putting pressure and the said amount was paid to him in order to avoid maltreatment at his hands. The payment so made was shown in the cash-book and ledger maintained by the Jain Gas Agency. Sukhdev Singh, owner of cart Rehra, had furnished an affidavit in this regard. Accordingly, it was prayed that necessary action be taken against the petitioner-accused.
3. It also transpired during investigation that Naginder Singh Rana while posted as S.H.O. of Police Station Kotwali, Faridkot, had received information that owner of M/s. Jain Gas Agency, namely, Ramesh Lal Jain, was engaged in the business of selling the filled cylinders of gas in black market. On the basis of this information, he arranged for four empty cylinders and got four filled cylinders at the rate of Rs. 200/- each and the said currency notes of Rs. 800/-, the numbers of which were noted down, were recovered from Ramesh Lal Jain. He had also recovered slip pertaining to sale of cylinders in black market from the pocket of Sukhdev who was posted as Manager in the godown. Accordingly, case bearing FFR No. 26 dated 18-3-1992 under Section 7 of the Essential Commodities Act was registered against Ramesh Lal Jain, owner of M/s. Jain Gas Agency. Regarding the case so registered, Ramesh Lal Jain made a complaint to the higher police officials against Naginder Singh Rana, petitioner-accused, which was enquired into by D.S.P. Kanwar Bahadur Singh posted at Faridkot and Senior Superintendent of Police Shri Jasminder Singh, stationed at Faridkot, and the complaint was found to be false but. the said Ramesh Lal Jain, owner of the gas agency, had exercised political pressure and got the aforesaid case cancelled. Thereafter, the present case was got registered by Ramesh Lal Jain. The police after investigation of this case, sent its untraced report in the Court of Shri Hardial Singh, Special Judge, Faridkot, who did not agree with the report and vide order dated 23-5-1998 came to the conclusion that the statements of the witnesses recorded during investigation have supported the case of the complainant and that the matter needs judicial verdict and for that reason, directed the Investigating Officer to obtain sanction for the prosecution of petitioner-accused and then submit final report.
4. The petitioner had challenged order dated 23-5-1998 of the Special Judge, Faridkot, by filing Criminal Revision No. 1100 of 1998 which was disposed of by this Court vide order dated 13-1-1999 by observing that no cognizance could be taken by the Special Judge without sanction and it will be open to the punishing/sanctioning authority to grant sanction or not, under the circumstances of the case. In the meanwhile, petitioner was promoted as Inspector. The Deputy Inspector General of Police, Jalandhar Range, Jalandhar, as per order dated 4-2-1999 accorded sanction to prosecute the petitioner under Section 197, Cr.P.C. for committing offence as mentioned in the report lodged in this case. The sanction for the prosecution of the petitioner-accused so granted by the Deputy Inspector General of Police on 4-2-1999 was cancelled by the State Government of Punjab vide order dated 10-12-1999 after taking into account the enquiry report of the Special Investigation Cell of the Crime Branch and all other documents supplied. Thereafter, the S.H.O. Police Station Kotwali, Faridkot, submitted the untraced report. The Special Judge, Faridkot, as per order dated 18-4-2000 came to the conclusion that competent authority to grant sanction was Deputy Inspector General of Police being the punishing Authority and that the Special Secretary, Home, Department of Punjab, Chandigarh, had nothing to do with the sanction and for that reason, the same could not be cancelled by the Punjab Government. While disagreeing with the conclusion drawn by the Investigating Officer, the Special Judge, Faridkot, noticed that the statements of the witnesses fully supported the case of the prosecution and sanction in this regard had already been obtained and therefore, the matter needed judicial verdict and accordingly, a direction was given to the Investigating Officer to prepare challan and complete other formalities and then submit final report within one month. The order dated 18-4-2000 of the Special Judge, Faridkot, was again challenged by the petitioner-accused by filing Criminal Revision No. 515 of 2000 in this Court when the impugned order was set aside vide order dated 23-7-2001 arid it was observed that the Investigating Officer shall be at liberty to continue with the investigation and proceed in accordance with law. Thereafter, S.H.O. Police Station Kotwali, Faridkot, after completion of investigation on 10-9-2001 submitted report under Section 173, Cr.P.C. While forwarding the report, he submitted that on the basis of evidence on file, Sub Inspector Naginder Singh Rana (presently posted as Inspector) has been found guilty for offence under Section 13(2) of the 1988 Act and Sections 409, 167, 218, 419, 420, 465, 468, 471, Indian Penal Code. It was also mentioned therein that sanction to prosecute the petitioner-accused was being asked for from the competent Authority separately and would be presented in Court as soon as it is received. Taking into consideration the report submitted, the Special Judge, Faridkot, summoned the petitioner-accused in this case for 1-10-2001. Aggrieved by the orders so passed and in view of the background of the case noticed above, the present petition has been filed by the petitioner.
5. I have heard the counsel representing the petitioner and the State counsel as well as the counsel for the complainant at length.
6. Quashing of FIR No. 39 dated 6-5-1994 (Annexure P-1), report submitted under Section 173, Cr.P.C. (Annexure P-8), and summoning order dated 1-10-2001 has been sought by the petitioner-accused on the following grounds:--
(i) that as the State Government of Punjab vide memo, letter No.1/253/99-2H(1) Spl. 1494 dated 10-12-1999 had cancelled order dated 4-2-1999 of the Deputy Inspector General of Police, Jalandhar Range, Jalandhar, according sanction to prosecute the petitioner-accused relating to case FIR No. 38 dated 6-5-1994, no report under Section 173, Cr.P.C. could be filed without obtaining further sanction of the competent Authority in this regard;
(ii) that S.H.O. Police Station Kotwali, Faridkot, while submitting report on 10-9-1999 to the Court of Special Judge, Faridkot, has specifically stated that sanction to prosecute the petitioner in this case has been asked for separately and that the Special Judge, Faridkot, could not have taken cognizance on the basis of report so filed and for that reason, the direction of the Special Judge to the petitioner-accused to put in appearance in this case deserves to be quashed.
7. While controverting the stand taken, from the side of the petitioner, it has been stated by the State counsel as well as by the counsel representing the complainant that as per the Punjab Police Rules, the Deputy Inspector General of Police is the competent authority to accord sanction for the prosecution of petitioner-accused under the 1988 Act and the sanction so accorded in 4-2-1999 by the Deputy Inspector General of Police, Jalandhar Range, Jalandhar, has already been annexed with the challan and the sanction with regard to prosecution of the petitioner-accused under Section 197 Cr.P.C. can be placed during the pendency of the proceedings and for that reason, cognizance has rightly been taken by the Special Judge in this case.
8. In order to appreciate the submissions made by both sides, a notice has to be taken with regard to orders passed by the Special Judge, Faridkot, at different stages of the proceedings and challenge to the orders so made by the petitioner by filing Criminal Revision petitions in this Court, though a brief reference was made earlier in this regard while narrating the facts of this case. For the first time, after completing investigation by the Superintendent of Police Sh. Madanjit, an untraced report was sent by the police which was considered by the Special Judge, Faridkot. While disagreeing with the report, he passed the following order on 23-5-1998:--
I have gone through the report submitted by Madanjeet, SP. I find that during the investigation he did not examine any of the witnesses cited by the complainant. He only got the affidavits of Jagdish Lal Sharma, Darshan Singh ASI, Jagjit Singh ASI and LC Paramjit Singh and of Mangal Sain. One of the grounds of cancellation is that Jagdish Lal Sharma has not supported the case regarding the passing of the money. Other witnesses excepting Mangal Sain are police officials. S.P. did not examine the witnesses cited by the complainant which was essential to arrive at a proper conclusion. The witnesses cited by the complainant have supported the version of the complainant in the earlier investigation. Their evidence is there on the file. As such, it cannot be said that it is a case of no evidence. Mangal Singh was not even connected with the case and it is not understandable as to how his affidavit has been obtained. Any how, the case is not fit to be cancelled. I do not agree with the report of the Investigating Officer. There being the statements of the witnesses supporting the case of the complainant, it is desirable that the judicial verdict should come. The investigation has already been completed. However, the sanction has to be obtained. As such, the investigating officer shall obtain the sanction and then submit the final report in view of the above-said observations, after obtaining the sanction, Announced Sd/- Session Judge 23-5-1998 Faridkot.
9. Order dated 23-5-1998 of the Special Judge, Faridkot, was challenged by the petitioner in Criminal Revision No. 1100 of 1998 which was disposed of by this Court on 13-1-1999 in the following terms:--
Learned counsel for the petitioner while relying upon 1989 Cri App R (SC) 139 : 1989 Cri LJ 963 India Carat Pvt. Limited v. State of Karnataka, submits that the learned Sessions Judge had no jurisdiction to give direction to the prosecution to obtain sanction and thereafter to put up charge-sheet. The citation which has been relied upon by the learned counsel for the petitioner has no application as it is not under the Corruption Act. No cognizance can be taken by the Special Judge without the sanction. In these circumstances it was obligatory on the part of the Sessions Judge to reject the report under Section 173 as he could not take cognizance directly. He simply asked the police to place the papers before the sanctioning authority in order to obtain sanction. It is open to the sanctioning authority/punishing authority to give sanction or not. If the sanction is granted by the punishing authority, the challan has again to be presented before the Special Judge who shall take cognizance in the matter. In these circumstances the present petition is disposed of with the observations that it will be open to the punishing/sanctioning authority to grant sanction or not because it is the prerogative of the sanctioning authority itself.
15-1-1999 Sd/-R. L. Ananda
Judge
10. Thereafter, vide order dated 4-2-1999 (Annexure P-5), the Deputy Inspector General of Police, Jalandhar Range, Jalandhar, granted sanction to prosecute the petitioner -accused. The relevant portion of that order reads as under:--
The police file of the case as well as the enclosed challan and other papers have been perused and after going through the same. I, SureshArora, IPS, Deputy Inspector General of Police, Jalandhar Range, Jalandhar, have satisfied myself that SI (Now Inspector) Naginder Singh Rana No. 50 P.R. Ex. S.H.O. Police Station City, Faridkot, have registered a false case against the owner of Jain Gas Agency, grabbed Rs. 20,000/- forcibly kept 20 cylinders himself and sold four cylinders in the market in black and have thus, committed offence under Section 13(2), 88 P.C. Act 409, 167, 218, 419, 420, 465, 468, 471, IPC.
Therefore, Now I, Suresh Arora, IPS, Deputy Inspector General of Police, Jalandhar Range, Jalandhar, having powers of dismissal from service to Inspector Sh. Naginder Singh Rana No. 50, hereby accord sanction to prosecute him under Section 197, Cr.P.C. for commission of offence under Section 13(2) 88 P.C. Act so that the competent Court of jurisdiction under the above-said order, takes legal action against him.
Sd/- S. Arora, 4-2-99.
Deputy Inspector General of Police Jalandhar Range, Jalandhar.
11. The Government of Punjab, Department of Home Affairs and Justice (Home-I Branch), Chandigarh, as per letter No. l/253/99-2H/Spl./1494 dated 10-12-1999 conveyed to the Additional Director General of Police (Crime) Punjab, Chandigarh, the decision of the Government incorporated in para 2 of that letter, wherein it was stated as under:--
2. Under Section 197, Cr.P.C. only Government is competent to accord prosecution sanction. Therefore, the prosecution sanction accorded by the Deputy Inspector General of Police, Jalandhar Range, Jalandhar, issued vide his order dated 4-2-1999 is hereby cancelled.
3. On the careful perusal of the enquiry report of Special Investigation Cell of the Crime Branch and all other documents supplied by you, the Government does not find fit case to aceord prosecution sanction in the present case.
4. Further action may be taken accordingly under intimation to the Government. The relevant record received under reference is returned herewith.
Sd/-
Special Secretary/Home.
12. The above directions were conveyed to the Superintendent of Police, Faridkot, at per letter No. 3010/Inv. 2 dated 22-12-1999 written by the Additional Director General of Police Crime, Punjab, Chandigarh, with a direction to take action as desired by the Punjab Government. Thereafter, the untraced report was submitted by S.H.O. Police Station Kotwali, Faridkot, before the Special Judge, Faridkot. Therein, objections were taken from the side of the complainant and after considering the circumstances of the case, the Special Judge, Faridkot, vide order dated 8-4-2000 directed the Investigating Officer to submit final report. The relevant observations are contained in para 5 of that order, which are in the following terms:--
5. The perusal of the record reveals that accused Naginder Singh Rana was Sub Inspector in the police department when the offence was allegedly committed by him. The authority which was competent to grant sanction being punishing authority is Deputy Inspector General. Special Secretary, Department of Home, Punjab, Chandigarh, has nothing to do with the sanction. As the Deputy Inspector General of Police, Jalandhar Range, Jalandhar, was the competent authority being punishing authority and has already granted sanction to prosecute the accused, it could not be cancelled in such a camouflage way. Apart from it, only sanction is required under Section 13(2) of the P.C. Act and not under Section 197, Cr.P.C. Even otherwise, the sanction has already been obtained. Therefore, I do not agree at all with the Investigating Officer. There being statements of the witnesses supporting the case of the complainant and the sanction has already been granted by the competent authority, it is desirable that the judicial verdict should come. So after preparing the challan and completing all formalities, the Investigating Officer is directed to submit the final report in view of the above observations preferably within one month.
Pronounced Sd/- Special Judge, Dated : 18-4-2000 Faridkot
13. This order was again assailed by the petitioner in Criminal Revision No. 515 of 2000 in this Court which was disposed of on 23-7-2001 and order dated 18-4-2000 of the Special Judge, Faridkot, was quashed. The order which has bearing on the present controversy, reads as under:--
Present : Mr. JBS Gill, Advocate, for the petitioner.
Mr. A.R. Sidhu, DAG Punjab, assisted by Mr. P.S. Brar, Advocate ...
Vide order dated 18-4-2000, learned Special Judge, Faridkot, had directed the Investigating Officer to submit the final report in view of the observations preferably within one month. It is elementary that such a direction could not have been issued. The Court could have only directed that the investigation be continued. The respondents are prepared to continue the investigation and furnish a freshxeport under Section 173, Cr.P.C. Under these circumstances, the time bound directions of learned Special Judge deserve to be set aside. Therefore, the direction given in the impugned order is hereby quashed. The investigating agency shall be at liberty to continue the investigation and proceed in accordance with law.
July 23, 2001 Sd/- K.S. Garewal
Judge
14. It is manifest from the record that after passing of order dated 23-7-2001 in Criminal Revision No. 515 of 2000, noticed above, no other investigation was done and on the basis of evidence available on file the S.H.O. Police Station Kotwali submitted report under Section 173, Cr.P.C. to the Special Judge, Faridkot, on 10-9-2001, as would be evident from the extracted portion of the report, wherein it was specifically mentioned as under:--
Sh. Pritam Singh, Special Judge, Faridkot, while not agreeing with the untraceable report, issued directions to submit the challan within one month. This order was passed on 18-4-2000. On 17-5-2000, SI Darshan Singh, SHO further sought extension of time for one month due to non-completion of the case. During this period Sh. Naginder Singh Rana filed writ petition No., 515 of 2000 against the above said order on 11-5-2000 in the Hon'ble Punjab and Haryana High Court which came up for hearing before Hon'ble Mr. Justice N.C. Khichi on 19-5-2000 who stayed further proceedings and adjourned the case for 31-7-2000 for hearing. After various adjournments from time to time, on 23-7-2001 Sh. K.S. Garewal, Judge of Punjab and Haryana High Court vide his order quashed the order of Sh. Pritam Singh, Special Judge and issued orders for the continuation of investigation by the Investigating Agency. On the basis of the evidence available on the file SI Naginder Singh Rana (now Inspector) has been found guilty for offence under Section 13(2) 88 P.C. Act 409, 167,218,419,420, 465, 468, 471, IPC. Accordingly, the challan against the accused mentioned in Col. No. 6 has been prepared and is being presented. Sanction to prosecute is being asked for from the competent authority separately and the same will be presented in the Court as soon as it is received.
Sd/- SHO P.S. Kotwali Faridkot, 10-9-2001.
15. Three consequences flow from order dated 23-7-2001 passed in Criminal Revision No. 515 of 2000. Firstly, the time bound directions given by the Special Judge, Faridkot, in order dated 18-4-2000 to the Investigating Officer to submit final report within a period of one month, were set aside secondly, the impugned order had also the effect of setting aside the observations of the Special Judge to the effect that the Deputy Inspector General of Police is the authority competent to grant sanction, being the punishing authority for prosecution of petitioner-accused and that the Department of Home, Punjab, Chandigarh, had nothing to do with the sanction and for that reason, it could not be cancelled; and thirdly, the Investigating Agency was given liberty to continue with the investigation and proceed in accordance with law. During the course of arguments, a grievance was made by the counsel representing the complainant that sanction given by the Deputy Inspector General of Police, Jalandhar Range, Jalandhar, vide order dated 4-2-1999 could not be cancelled by the State Government as per communication dated 10-12-1999 as it was not competent to do so and that the Special Judge has rightly rejected the stand of the petitioner in this regard in order dated 18-4-2000.
16. The directions contained in order dated 23-7-2001 passed in Criminal Revision No. 515 of 2000 have attained finality so far as the State Government and the complainant are concerned because order dated 23-7-2001 had not been challenged by them. Moreover, the respondents cannot be permitted to raise this plea because entertainment of such a stand would tantamount to reviewing of order dated 23-7-2001 of this Court which recourse is impermissible in law. As far as the State Government is concerned, it had accepted the directions and for that reason, had intimated to the Court, of Special Judge while submitting report under Section 173, Cr.P.C. that sanction to prosecute the petitioner accused has been asked for from the competent authority separately and would be produced in Court as and when received.
17. Petitioner is justified in invoking the jurisdiction of this Court because after taking cognizance the Special Judge has issued him notice to appear in this case. In Abdul Wahab Ansari v. State of Bihar, 2000 (4) Rec Cri R 572 : 2000 Cri LJ 4631, the question agitated before the Apex Court was Assuming the provisions of Section 197 of the Code of Criminal Procedure applies, at what stage the accused can take such plea.? Is it immediately after the cognizance is taken and process is issued or it is only when the Court reaches the stage of framing of charge as held by this Court in Birendra K. Singh's case. The above question was answered in para 7 (of Rec Cri R) : (para 6 of Cri LJ) of the judgment which reads as under:--
7. Previous sanction of the competent authority being a pre-condition for the Court in taking cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking cognizance and, therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed. In Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan 1998 (1) Rec Cri R 165 : 1998 (1) SCC 205 : 1998 Cri LJ 1242, a similar contention had been advanced by Mr. Sibbal, the learned Senior Counsel appearing for the appellants in that case. In that case, the High Court had held, on the application of the accused that the provisions of Section 197 gets attracted. Rejecting the contention, this Court had observed (para 23 of Cri LJ) :
The legislative mandate engrafted in Sub-section (1) of Section 197 debarring a Court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the Court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the Court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the Court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings.
18. The Court had further observed (1998 Cri LJ 1242, para 24) :
The question of applicability of Section 197 of the Code and the consequential ouster of jurisdiction of the Court to take cognizance without a valid sanction is generally different from the plea of the accused that the . averments in the complaint do not make out an offence and as such the order of cognizable and/or the criminal proceedings be quashed. In the aforesaid premises we are of the considered opinion that an accused is not debarred from producing the relevant documentary materials which can be legally looked into without, any formal proof, in support of the stand that the acts complained of were committed in exercise of his jurisdiction or purported jurisdiction as a public servant in discharge of his official duty thereby requiring sanction of the appropriate authority.
In the case of Ashok Sahu v. Gokul Saikia, 1990 Supp SCC 41, this Court had said that want of sanction under Section 197 of the Code is a prohibition against institution of the proceedings, and the applicability of the Section must be judged at the earliest stage of the proceedings and in that case, the Court directed the Magistrate to consider the question of sanction before framing a charge. In yet another case, in the case of S.B. Saha v. M.S. Kochar, (1979) 4 SCC 177 : 1979 Cri LJ 1367, a three-Judge Bench of this Court had held that the question of sanction under Section 197 Cr.P.C. can be raised and considered at any stage of the proceedings and further in considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to continue itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration. This being the position, we are of the considered opinion that the decision of this Court in Birendra K. Singh's case (2000) 8 JT (SC) 248, does not lay down the correct law by directing that the objection on the question of sanction can be raised at the stage of framing of charge and not at any prior point of time.
19. In this case, the prosecution itself has admitted that accusations made against the petitioner-accused related to discharge of his duties as Investigating Officer and for that reason, they had applied for the sanction of prosecution of the petitioner-accused. Therefore, the observations in case P.K. Pradhan v. State of Sikkim, 2001 (3) Rec Cri 835 : 2001 Cri LJ 3505 (SC), to which reference was also made by both sides during the course of arguments, would not help to settle the controversy raised in view of circumstances of this case. The prayer of the petitioner for quashing of FIR in question cannot be accepted as it cannot be said that allegations made therein do not disclose any offence against him. In view of the position explained above, admittedly in this case, no sanction for the prosecution of petitioner-accused was obtained at the time when report dated 10-9-2001 was filed in the Court of special Judge, Faridkot. The order of the Special Judge taking cognizance and summoning the petitioner-accused in this case without sanction of the competent authority for his prosecution is quashed.
20. The petition is accepted to the extent indicated above.