Gujarat High Court
Dhanrajbhai Hirabhai Patel vs State Of Gujarat on 13 January, 2021
Equivalent citations: AIRONLINE 2021 GUJ 34
Author: Gita Gopi
Bench: Gita Gopi
R/CR.RA/624/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 624 of 2020
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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DHANRAJBHAI HIRABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR AFTABHUSEN ANSARI(5320) for the Applicant(s) No. 1,2
MR. ALAK A PANDYA(7164) for the Applicant(s) No. 3
for the Respondent(s) No. 2,3
MR PRANAV TRIVEDI APP(2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/01/2021
ORAL JUDGMENT
1. The revisionists, under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.), have come with a prayer to quash and set aside the order dated 21.08.2020, passed by the Sixth Additional Sessions & Special Page 1 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT (ACB) Judge, Banaskantha at Palanpur in Criminal Inquiry (ACB) No.1/2020. The complaint was filed under Section 409 of Indian Penal Code (for short "IPC") read with Section 7 of The Prevention of Corruption Act, 1988 (for short "P.C. Act") against the respondent no.3, who was on the post of Sarpanch, Gola Gram Panchayat, Taluka-Palanpur. The complaint before the Special (ACB) Judge came to be rejected on the ground of maintainability in absence of sanction.
2. A private complaint filed before the Principal District Judge, Banskantha at Palanpur having been registered as Criminal Inquiry (ACB) No.1/2020 was transferred to Fifth Additional District Judge Banaskantha for disposal in accordance with law and thereafter the matter came before the Sixth Additional Sessions & Special (ACB) Judge, Banaskantha at Palanpur on 10.07.2020, with the allegations that respondent no.3 being Sarpanch of Gola Gram Panchayat has misappropriated the public money and committed fraud with Government by arbitrarily allotting the work of installation of LED lights to one Adarsh Sales without any advertisement in newspaper. The LED lights, as alleged, available at Rs.1200/- to Rs.1500/- in the market were purchased at the rate of Rs.4500/- from Adarsh Sales, who had issued a bill without VAT number. It is alleged that the price were called from three firms and by taking undue advantage of the status respondent no.3 abused his office for corrupt motives, misused the public funds for purchase of LED lights from Adarsh Sales.
2.1 The Special (ACB) Judge noted that the complainant had moved the Additional Assistant Engineer, Taluka Panchayat Page 2 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT Palanpur and further the complaint was also given to P.I., A.C.B. Police Station, Banaskantha and an application was also forwarded to T.D.O., Palanpur on 30.08.2017. The same issue was also agitated before the Director of A.C.B. at Shahibag, Ahmedabad vide letter dated 21.05.2018.
2.2 The complainant did not find any progress, hence filed Special Criminal Application No.1419 of 2020 before this Court and on 22.01.2020, complainant was directed by this Court to approach the concerned authority. Thereafter, the application was given to A.C.B. Police Station, Banaskantha at Palanpur on 07.03.2020. It is stated by the revisionist that the respondent State and its agencies have not registered the FIR nor investigated the complaint hence, the applicant had to prefer Writ Petition before this Court being Special Criminal Application No.501 of 2020 for direction to the authorities to file an FIR to the mentioned incident. By an order dated 23.01.2020, this Court had not entertained the petition; however liberty was granted to the petitioner to approach the competent authority/Court, if they so desired.
2.3 Thus, the revisionists approached the Court by filing the written complaint which was registered as Criminal Inquiry (A.C.B) No. 1/2020. The Special (ACB) Judge by order dated 21.08.2020, having observed that the complaint dated 20.03.2018 was already before the P.I., A.C.B. Police Station, Banskantha, stayed the proceedings under Section 210 of the Cr.P.C. calling for the report of the concerned A.C.B. Police Station. The said report was received by the Special (ACB) Judge on 13.07.2020 along with the papers and statements recorded Page 3 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT during the investigation.
2.4 The Special (ACB) Judge perusing the report stated it to be cryptic and ambiguous, that the report does not clearly specify whether the criminal offence, as alleged by the complainant, were made out or not against the accused? The Special (ACB) Judge further observed that the crux of the whole report of the I.O. submitted to the Director of A.C.B. was to carry out departmental inquiry against the accused. The complainant before the Special (ACB) Judge produced additional submissions stating that once cognizable offence is made out, the only option is to lodge an FIR and the departmental proceedings are to be taken care of by the concerned department. Hence, the prayer was made to direct the I.O. to lodge the FIR against the accused person.
2.5 The Special (ACB) Judge after considering the provisions of Section 19(1) of the P.C. Act on 21.08.2020 dismissed the complaint of Dhanrajbhai Hirabhai Patel, resident of Village Gola, Taluka-Planpur, District Banskantha, on the ground that it was not maintainable without sanction order.
3. Learned advocate Mr. Aftabhusen Ansari appearing for the petitioners submitted that the impugned judgment and order of the Special (ACB) Judge is illegal, perverse and contrary to the settled principles of law. The learned Judge has failed to appreciate the fact that the investigating report of the police discloses prima facie that cognizable offence is made out against respondent no.3. Mr. Ansari stated that the respondent no.3 has been removed from the post of Sarpanch vide order dated Page 4 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT 03.02.2018 by Social Justice & Empowerment Department, Gandhinagar, Gujarat and that Special (ACB) Judge has misinterpreted the relevant provisions of law and the ratio laid down by the Supreme Court while considering the issue of sanction. Mr. Ansari contended that the sanction is not required at the time of registration of complaint or lodging the FIR, it would be required only while framing the charge against the accused and thereby the Special (ACB) Judge has erred in law by rejecting the Criminal Inquiry (ACB) No.1/2020, which has resulted into miscarriage of justice.
3.1 Mr. Aftabhusen Ansari, learned advocate for the petitioners relied upon the judgment of Kerala High Court rendered in case of Maneesh E. Vs. State of Kerala And ors., reported in 2016 (1) KLJ 169.
4. Mr. Pranav Trivedi, learned Addl. Public Prosecutor, in support of the judgment and order submitted that there is no any error in law in the order passed by the Special (ACB) Judge, Palanpur. Mr. Trivedi contended that the judgment and order is in accordance to the principles of law and therefore, requires no interference by this Court.
5. Having heard Mr. Aftabhusen Ansari, learned advocate for the petitioners and Mr. Pranav Trivedi, learned Addl. Public Prosecutor for the respondent State and perused the material produced on record.
6. The undisputed fact is that respondent no.3 against whom the complaint has been made was the Sarpanch of Gola Gram Page 5 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT Panchayat. He would fall under the consideration of 'public servant' under Section 2(c) of the P.C. Act. The Special (ACB) Judge, Banaskantha at Palanpur while dismissing the complaint on the ground of maintainability for want of valid sanction, raised question for consideration whether a private complaint is maintainable under the provisions of P.C. Act, without valid sanction along with the complaint ?
6.1 The Special (ACB) Judge is deemed to be a Magistrate under Section 5(4) of the P.C. Act and therefore, bears all the magisterial powers provided under the Cr.P.C., As per the scheme of Cr.P.C, the Magistrate on receipt of the complaint has two options; to take cognizance of the offence under Section 190 Cr.P.C. or the said Magistrate, may direct for an investigation under Section 156(3) of Cr.P.C. without taking cognizance under Section 190 Cr.P.C. thus it is 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) of the Cr.P.C. In a case, wherein public servant is accused of any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty, as provided under Section 197 Cr.P.C., no Court shall take cognizance of such offence except with the previous sanction, in case of person who is employed at the time of commission of alleged offence in connection with the affairs of the Union, of the Central Government and in case of person employed with the affairs of a State, the sanction is from the State Government. Sub-section (1) in Section 197 is added with an explanation for removal of doubts to have declared that no sanction shall be required in case of public servant, accused of an offence alleged Page 6 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT to have been committed under Sections 166A, Section 166B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 370, Section 375, Section 376, Section 376A, Section 376C, Section 376D and Section 509 of the IPC. Thus, even while exercising the power under Section 190 Cr.P.C. while taking cognizance of offence on receiving the complaint of facts, the Magistrate is required to follow the salutary provision under Section 197 Cr.P.C., as to protect responsible public servant against the institution of possible vexatious criminal proceedings for offences alleged to have been committed by them while they are acting and purporting to act as public servant. Such protection is available under Section 197 Cr.P.C. when the alleged act done by the public servant, is reasonably connected with the discharge of his official duty.
6.2 The allegation against the respondent no.3 is even under Section 7 of the P.C. Act. While quoting the case of Kalicharan Mahapatra V. State of Orrisa, reported in (1998) 6 SCC 411, in case of Lalu Prasad V. State of Bihar, reported in (2007) SCC 49, it was held by the Apex Court in Para 10 as under:
"... Section 197 of the Code and Section 19 of the Act operate in conceptually different fields."
6.3 In Kalicharan Mahapatra V. State of Orrisa (supra), the Hon'ble Supreme Court compared Section 19 of the P.C. Act with Section 197 of the Code. After considering several decisions on the point and also considering Section 6 of the old P.C. Act, 1947 which is almost identical with Section 19 of the P.C. Act, 1988 and also noting the Law Commission's Report, the Apex Court in Page 7 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT Para 13 of Kalicharan's case came to the following conclusions:
"13. ... The sanction contemplated in Section 197 of the Code concerns a public servant who is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty', whereas the offences contemplated in the PC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former PC Act was materially imported in the new PC Act, 1988 without any change in spite of the change made in Section 197 of the Code."
6.4 In the present case, prior to the complaint before the Special (ACB) Judge by Dhanrajbhai Hirabhai Patel, complaint was given to Additional Assistant Engineer, Taluka Panchayat Planpur. Such complaint was also given to TDO Palanpur and also before the Director of A.C.B., Sahibag, Ahmedabad. It is stated by the petitioners that as the respondent State and its agencies failed to lodge the FIR and investigate the complaint, he had preferred Special Criminal Application No.501 of 2020 before this Court and since he was granted liberty to approach the competent authority/Court, he had moved the Magistrate under Sections 36, 154, 156 (3) and 200 or any other provisions of Cr.P.C. The revisionists have stated that despite report by the I.O. of cognizable offence made out against the accused, the Page 8 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT Special (ACB) Judge, Banaskantha at Palanpur rejected the complaint on the ground of maintainability in absence of sanction order.
7. In the case on hand, as stated by the revisionist, the complaint against respondent no.3 being Sarpanch of Gola Gram Panchayat, was moved before the concerned authorities and when no progress was found to be made towards the complaint, moved this Court by preferring Special Criminal Application No.501 of 2020 and sought directions against the authorities to register an FIR. This Court to the said petition, in the order, referred to the cases of Divine Retreat Centre Vs. State of Kerala and Ors., reported in (2008) 3 SCC 542 and Sudhir Bhaskarrao Tambe Vs. Hemant Yashwant Dhage and Ors., reported in (2016) 6 SCC 277, the relevant observations are made:
3. The Hon'ble Apex Court in the case of Divine Retreat Centre v/s. State of Kerala and Ors.
reported in (2008) 3 SCC 542 has held in para 41 and 42 as under :-
"41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an Investigating Officer mala fide. That power is to be exercised in rarest of the rare cases where a clear case of abuse of power and non-compliance with the provisions Page 9 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code.
42. Even in cases where no action is taken by the police on the information given to them, the informants remedy lies under Sections 190, 200 Cr. P.C., but a Writ Petition in such a case is not to be entertained. This Court in Gangadhar Janardan Mhatre Vs. State of Maharashtra & ors. Held:
"13. When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to Page 10 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees Union (Regd.) V. Union of India. It was specifically observed that a writ petition in such cases is not to be entertained."
4. Similarly, in the case of Sudhir Bhaskarrao Tambe v/s. Hemant Yashwant Dhage and Ors. reported in (2016) 6 SCC 277, the Hon'ble Apex Court has held in para 2 as under :-
"2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has Page 11 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation."
7.1 Thus, in the said petition being Special Criminal Application No.501 of 2020, this Court referring to the settled position in cases of Divine Retreat Centre (supra) and Sudhir Bhaskarrao Tambe (supra), considered that the petitioners have alternative remedy to approach the concerned authority and/or the learned Magistrate under Sections 36, 154, 156(3) and 200 or any other provisions of the Cr.P.C. for the relief sought for. Thus, while not entertaining the petition, granted liberty to the petitioners to approach the competent authority/Court.
8. The complaint was rejected by Special (A.C.B.) Judge as it was not accompanied with valid sanction. The Hon'ble Supreme Court in the case of Anil Kumar & Ors. Vs. M.K. Aiyappa & Anr., reported in (2013) 10 SCC 705, analyzed the question whether the Special Judge / Magistrate is justified in referring a private complaint made under Section 200 of Cr.P.C. for investigation by the Deputy Superintendent of Police, Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) Cr.P.C. without the production of a valid sanction order under Page 12 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT Section 19 of the P.C. Act. Para 8 of Anil Kumar's judgment reads as under:
"8. 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. The scope of the above mentioned provision came up for consideration before this Court in several cases. This Court in Makusud Saiyed case (supra) examined the requirement of the application of mind by the magistrate before exercising jurisdiction under Section 156(3) and held that 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...."
8.1 Criminal Inquiry (ACB) No.1/2020 was before the Special (ACB) Judge, Banaskantha at Palanpur, the said Magistrate taking notice of the complaint already filed before the P.I., A.C.B. Police Station on 20.03.2018, stayed the inquiry before him under Section 210 of the Cr.P.C. and called for the report of the concerned I.O. of A.C.B. Police Station, Palanpur. On receipt of the report, the Special (ACB) Judge observed that the report does not really states of any criminal offence as alleged against the accused, as required under Section 210 Cr.P.C., while whole Page 13 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT report submitted to the Director of A.C.B. was to carry out departmental inquiry against the accused.
8.2 Section 210 Cr.P.C. provides for procedure to be followed, when there is a complaint case and police investigation in respect of the same offence. In a case instituted as a complaint case, and, when it is made to appear to the Magistrate during the course of inquiry or trial held by him, that the investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report in the matter from the investigating Police Officer conducting the investigation, which in this case, has been followed by the Special (ACB) Judge. Section 210(2) Cr.P.C. provides that if a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person, who is an accused in the complaint case, the magistrate shall inquire into or try together the complaint case and case arising out of the police report, as if both the cases were instituted on a police report. The Special (ACB) Judge observed that the report was cryptic and ambiguous and it does not really disclose anything against the accused, as alleged by the complainant, rather the report was made to carry out departmental inquiry against the accused. In such a situation if the police report does not relate to any accused in the complaint case and if the Magistrate does not take cognizance of any offence on the police report, then the recourse available to the Magistrate is as per Section 210(3) Cr.P.C., to proceed with the inquiry or trial which was stayed by him in accordance with the provisions of the Cr.P.C.
Page 14 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021R/CR.RA/624/2020 JUDGMENT 8.3 The Special (ACB) Judge thus raised an issue for consideration, whether a private complaint is maintainable under the provisions of P.C. Act, without a valid sanction. The Special (ACB) Judge came to the conclusion that no cognizance of the offence punishable under the provisions of P.C. Act can be taken in absence of sanction and went on to observe that if such cognizance is taken, then the whole proceedings would stand void ab initio.
9. This Court is of the view that there is no error committed by the Special (ACB) Judge while disposing of the private complaint by Dhanrajbhai Hirabhai Patel, resident of Village Gola, Taluka- Palanpur, District Banskantha, without a valid sanction. When the Criminal Inquiry (ACB) No.1/2020 was registered; a parallel investigation was carried by the P.I., A.C.B. Police Station, Banskantha, thus under the provision of Section 210 Cr.P.C., the Special (ACB) Judge called for the investigating report. Perusal of the report was made, proceeding in accordance with the provisions of Cr.P.C. the Special (ACB) Judge dismissed the private complaint considering that no cognizance can be taken without valid sanction.
9.1 In case of State of West Bengal And Anorther Vs. Mohd. Khalid and others, reported in (1995) 1 SCC 684, the Hon'ble Supreme Court held that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the 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 Page 15 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT 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.
9.2 Here in this case, the the Special (ACB) Judge is deemed to be Magistrate under Section 5(4) of the P.C. Act. The private complaint was against public servant. Section 2(c) of the P.C. Act gives meaning of public servant. The complaint was filed under Section 7 of the P.C. Act and Section 409 of the IPC. Section 19 of the P.C. Act provides that no Court shall take cognizance of offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with the previous sanction. The question of sanction is of paramount importance, thus the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) Cr.P.C. is too of paramount importance.
9.3 The Magistrate who would be a Special (ACB) Judge, as contemplated under Section 5 of P.C. Act, would have to apply his mind before exercising the jurisdiction under Section 156(3) or Section 200 Cr.P.C. and when jurisdiction is exercised on complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., on application of his mind, in such a case Special (ACB) Judge / Magistrate cannot refer the matter under Section 156(3) against the public servant without a valid sanction order.
10. Now the question for consideration would be whether the order directing investigation under Section 156(3) Cr.P.C. would amount to taking cognizance of the offence, since contended by Page 16 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT Advocate Mr. Ansari, that expression cognizance appearing in Section 19(1) of P.C. Act will have to be construed as post- cognizance stage, not pre-cognizance stage. The Apex Court in case of Anil Kumar & Ors. Vs. M.K. Aiyappa & Anr. (supra) in para-10 held as under:
"10. The meaning of the said expression was also considered by this Court in Subramanium Swamy case (supra). 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-cognizance stage."
10.1 Next question that was considered in Anil Kumar's case, would also be relevant in the present matter viz. whether the requirement of sanction is a pre-condition for ordering investigation under Section 156(3) Cr.P.C., even at a pre- cognizance stage. It was answered in Para-13, as under:
Page 17 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021R/CR.RA/624/2020 JUDGMENT "13. 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 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 varous 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 Subramanium Swamy cases (supra)."
11. Adverting to the facts of the present matter, the Special (A.C.B.) Judge had to follow the procedure as contemplated under Section 210 Cr.P.C., since police investigation was in progress in relation to the offence alleged before the Special Magistrate. The report of the police was found to be cryptic and ambiguous, did not disclose any offence, as alleged. In case of Page 18 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT Subramanium Swamy Vs. Manmohan Singh and Another, reported in (2012) 3 SCC 64, it was held that there is no provision in the P.C. Act, 1988 or Cr.P.C., which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offence. The complaint was registered by the Court, when the matter was already investigated by P.I., A.C.B. Police Station, Banskantha, the Court could only ask for the report, which did not disclose any offence and the report recommended for departmental inquiry. No sanction order was procured by the A.C.B. Police. Subramanium Swamy case (supra) recognizes the right of private citizen for filing complaint against public servant and to obtain sanction for prosecuting public servant, such right flows from rule of law. The authority concerned are to follow directions given in case of Vineet Narain v. Union of India, reported in (1998) 1 SCC 226, upon sanction application by a private citizen, who has to be informed of the decision on sanction application to enable him to avail appropriate remedy. However, thus, it becomes crystal clear that as soon as complaint is lodged, if the Magistrate goes through the contents of the complaint in order to proceed and refer the matter to the police for investigation under Section 156(3) of the Cr.P.C. or to take any other step as contemplated under Section 200 of Cr.P.C., it is deemed that he has taken cognizance of the contents of the complaint and came to the conclusion that it is a fit case either to refer it to the police for investigation or to be inquired into by the Court itself. Thus, even for the purpose of lodging a private complaint, order of sanction is an absolute legal requirement to prosecute under Section 19(1) of the P.C. Act. It is rightly held by the Special (A.C.B.) Judge, Palanpur that a trial without a Page 19 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021 R/CR.RA/624/2020 JUDGMENT sanction renders the proceedings ab initio void. There is no irregularity or infirmity in the order by the Special (A.C.B.) Judge.
12. For the foregoing reasons, this Court is not inclined to entertain the Revision Application, hence, the revision fails and is accordingly dismissed.
(GITA GOPI,J) Pankaj Page 20 of 20 Downloaded on : Thu Jan 14 04:00:20 IST 2021