Madras High Court
Bagavathiappan Pillai vs State Rep. By on 16 December, 2015
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.12.2015
CORAM
THE HON'BLE MRS.JUSTICE S.VIMALA
Crl.O.P.(MD) No.15124 of 2015
Bagavathiappan Pillai ... Petitioner
vs
1. State Rep. By
The Deputy Superintendent of Police,
Vigilance and Anti Corruption,
Nagercoil, Kanniyakumari District.
2. Jebaselvakumar ... Respondents
Prayer: Criminal Original Petition has been filed under Section 482 Cr.P.C.
seeking to quash the case pending against the petitioner in Special Case
No.10 of 2014 pending on the file of the learned Chief Judicial Magistrate-
cum-Special Judge, Kanniyakumari District at Nagercoil.
For Petitioner : Mr.R.Shanmugasundaram
Senior Counsel
For Mr.P.K.Sabapathi
^For R1 : Mr.P.Kandasamy
Govt. Advocate (Crl.Side)
For R2 : Mr.A.Dennison
:ORDER
Reserved on : 14.10.2015 Pronounced on : 16.12.2015
The filing of a private complaint on 18.07.2013 by the defacto complainant / 2nd respondent, against a Public Servant (the petitioner herein) without obtaining sanction from the competent authority, b) order by the learned Chief Judicial Magistrate, Nagercoil dated 21.08.2013 and consequent registration of FIR in Crime No.9 of 2014 by the Inspector of Police, Vigilance and Anti Corruption, c) the investigation conducted by the 1st respondent, are claimed to be illegal and abuse of process of Court and on these grounds, the petitioner seeks directions to quash the same.
2. The specific contentions with regard to filing of private complaint, direction issued by the Magistrate for registration and investigation of the case and the process of investigation itself are under challenge and the details of challenge are as under:
(a) the complaint is not maintainable since it is not supported by an affidavit; (b) the direction for investigation is invalid as it is made without application of mind; the learned Magistrate has ordered forwarding of the complaint for investigation under Section 156(3) of the Code of Criminal Procedure, without satisfying about the prima facie case, being made out; c) As per the directions issued by this Court in Crl.O.P.No.17898 of 2012 dated 01.04.2013, the complaint by the 2nd respondent in C.M.P.No.644 of 2012 was dismissed with a liberty to file fresh complaint with valid sanction order and therefore, another complaint, which was entertained without the sanction order is clearly barred under Section 362 of Cr.P.C.; d) the materials collected do not make out commission of the offence punishable under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act and hence, the final report filed is illegal; e) before taking cognizance of the offences under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, the learned Magistrate, without application of mind, has ordered issuance of summons.
Brief Facts:
3. The complainant was working as Commercial Inspector at Karungal Tamil Nadu Generation and Distribution Corporation, Kanniyakumari Electricity Distribution Circle, Kuzhithurai from 23.08.2008 to 29.11.2011. The accused was working as Superintending Engineer from February 2008 to January 2012. The accused transferred the defacto complainant to Keelakrishnamputhoor on 12.12.2011. On 14.12.2011, the complainant has gone to the residence of the accused and expressed his difficulties in working at Keelakrishnamputhoor. The accused demanded a bribe of Rs.50,000/-, in order to comply with the request for re-transfer. On the same day, the letter for re-transfer was given. As the complainant was not ready to pay the bribe demanded, he reported the matter to the Vigilance and Anti-corruption Police Station. The authorities demanded proof of demand. Thereafter, the complainant visited the house of the accused with a pen camera and after negotiation, he paid a sum of Rs.20,000/-. The accused directed him to put it in a photo stand. Evidence on this aspect was produced before the Police. This incident was allegedly witnessed by one Christopher of Paloor Village. As there was no action, the complaint was sent by a registered post on 06.03.2012, which was acknowledged on 10.03.2012. No action has been taken till date. Hence, Crl.O.P.15124 of 2015 was filed seeking direction to the respondent to register a case and investigate. The accused is a Public Servant under Section 2(1)(e) of the Prevention of Corruption Act, 1988.
4. The 2nd respondent originally filed a private complaint in C.M.P.No.642 of 2012 on 25.04.2012 before the Chief Judicial Magistrate, Nagercoil, Kanniyakumari District. Learned Chief Judicial Magistrate, Nagercoil passed an order forwarding the complaint to the Inspector of Police,Vigilance and Anti-corruption to register a case and investigate. Accordingly, case was registered in Crime No.10 of 2012 on 06.07.2012 against the petitioner in respect of the offence under Sections 7, 13(2) r/w 13(1)(d) of the Prevention of Corruption Act.
5. Petitioner filed a quash petition in Crl.O.P.No.17898 of 2012 to quash the proceedings on the ground that no prior sanction was obtained. The application was allowed by the order dated 01.04.2013 and FIR was quashed. However, the matter was remanded back with a direction to consider the matter afresh in the light of the law laid down in the case Subramanian Swamy vs. Manmohan Singh, reported in 2013 (2) SCC 64.
6. After the remand of C.M.P.No.642 of 2012 (complaint), the 2nd respondent filed another complaint in C.M.P.No.582 of 2013 on 10.06.2013, before the learned Chief Judicial Magistrate, Nagercoil, contending that he had sent a representation to the competent authority to accord sanction on 05.04.2013 and prayed to forward the complaint in C.M.P.No.642 of 2012. Learned Magistrate dismissed both the CMPs with a direction to file a fresh complaint on receipt of sanction from the competent authority.
7. The 2nd respondent, without obtaining any sanction, filed another private complaint on 18.07.2013 in Crl.M.P.No.988 of 2013 contending that despite sending a representation dated 05.04.2013, which was received on 06.04.2013, no decision was taken for three months and hence, there is a deemed sanction. The learned Chief Judicial Magistrate forwarded the complaint under Section 156(3) Cr.P.C. to the Inspector of Police, Vigilance and Anti-corruption, Nagercoil. On 06.02.2014, a report was filed. Based on the report, learned Chief Judicial Magistrate once again forwarded the said complaint afresh to the Deputy Superintendent of Police, Vigilance and Anti-corruption, Nagercoil. On 26.02.2014, the Inspector of Police registered a case in Crime No.2 of 2014 for the offence under Sections 7, 13(2) and 13(1)(d) of the Act. The 1st respondent conducted an investigation and filed a final report on 04.12.2014. The same was taken cognizance in Special Case No.10 of 2014.
8. The legal provisions under which the case was registered and the legal presumption attached to the offence under Sections 7/11/13(1)(b) or (a) of the P.C.Act, requires scrutiny in order to appreciate the contentions raised:
?Section 7 - Public servant taking gratification other than legal remuneration in respect of an official Act Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to 2[seven years] and shall also be liable to fine. Explanation.?
(a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will when serve them, be may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification." The word ?gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration." The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
Section 13 - Criminal, misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct?
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person for himself or for any other person any gratification other than legal remuneration as a tive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,?
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public, interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation.?
For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 1[four years] but which may extend to 2[ten years] and shall also be liable to fine. Section 20 - Presumption where public servant accepts gratification other than legal remuneration (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) or sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub- sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
9. It has been held in the case of Subash Parbat Sonvana vs. State of Gujarat, reported in 2002 (5) SCC 86, that presumption under Section 20 will be available only in respect of the offences under Sections 7 or 11 or 13(1)(b) or (a) of the P.C.Act and not for the offence punishable under Section 13(1)(d) of the Act.
10. The first contention of the learned counsel for the petitioner is with regard to the maintainability of the private complaint and the contention is that, as the complaint was not supported by an affidavit, which is mandatory according to the decision of the Hon'ble Supreme Court reported in (2015) 6 SCC 287 (Priyanka Srivastava and another vs. State of U.P. and others), the complaint is not maintainable. In the said decision, it has been held in the above case as follows:
30) In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.?
11. So far as the first contention regarding the imperative need of filing an affidavit along with the complaint is concerned, the requirement of filing of the affidavit was made mandatory by the Hon'ble Supreme Court in order to make the people accountable for the allegations made in the complaint preferred by them, only in the year 2015. This complaint has been filed in the year 2012. The requirement made mandatory in the year 2015 cannot be retrospectively applied for a complaint filed in the year 2012. Therefore, this contention cannot be accepted.
12. It is contended that as per the directions issued by this Court in Cr.O.P.No.17898 of 2012 dated 01.04.2013, the complaint by the 2nd respondent in C.M.P.No.644 of 2012 was dismissed with liberty to file a fresh complaint with valid sanction order and therefore, another complaint, which was entertained without the sanction order is clearly barred under Section 362 of Cr.P.C.
13. In support of the contention, the following decisions are relied upon:
i) Anil kumar and others vs. M.K.Aiyappa and another, ((2013) 10 SCC
705):
?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 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 Subramanium Swamy cases (supra).?
14. Learned Government Advocate (Crl.Side) would submit that at the time when the offence was committed, the accused was a Public Servant, but he retired from service at the time when the Court took cognizance of the case and therefore, as a retired servant, the accused is not entitled to any immunity. In support of the proposition, the following decision is relied upon:
i) 1998 Cri.L.J.2570 (Kiritsinh Bhagvansinih Parmar vs. State of Gujarat) ?It may also be pointed out that the Prevention of Corruption Act is a special enactment and in the Cr.P.C. there is an analogous provision in Section 197 requiring sanction for prosecution of Judges and public servants.
In Section 197 of Cr.P.C. both the cases have been covered i.e. in case where the person who is employed or, as the case may be, was at the time of commission of the alleged offence employed; whereas Section 19 of the Act does not refer to the words, 'was at the time of commission of the alleged offence employed'. Thus the absence of the cases of ex or past employees is conspicuous in the phraseology of Section 19 of the Act. I have, therefore, no hesitation in holding that under Section 19 of the Act, the previous sanction for prosecution is not at all necessary in cases where the offender, who may be a public servant at the time of the commission of the offence, has ceased to be in Government service or has ceased to be a public servant at the time when the charge-sheet is filed. The previous sanction is necessary only if the offender-public servant continues to be in service. Once he ceases to be a public servant, the embargo of the previous sanction automatically stands lifted and this embargo against the prosecution of the person, who has ceased to be public servant, is not at all available to such person, merely because he was a public servant at the time when the offence was committed or at the time when the F.I.R. was lodged. The Court taking cognizance of the offence has to apply its mind on the question of previous sanction only when the charge-sheet is filed before the Court and at the time the Court has to see as to whether the previous sanction is there or not in case the person continues to be a public servant or as and when such a question is raised before the Court after the filing of the charge-sheet. From the decision, it is clear that sanction is required only when the petitioner is in service and not after his retirement from service, as on retirement, the petitioner ceases to be a Public Servant.
15. The above decision applies to the facts of this case and therefore, no sanction is required, as he ceases to be a Public Servant at the time when the Court took cognizance of the case. Even other wise, as contended by the 2nd respondent / defacto complainant, there is a deemed sanction for not passing any orders in the petition given for sanction within the stipulated time frame.
16. The failure to pass or delay in passing any orders in the application for sanction submitted by the defacto complainant would amount to and result in deemed sanction and in support of the proposition, the decision reported in 2012 (1) SCC (Cri) 1041 (Subramanian Swamy vs. manmohan Singh and another), is relied upon, in which it has been held as follows:
? 48.In paragraph 58 of the judgment in Vineet Narain, the Court gave several directions in relation to the CBI, the CVC and the Enforcement Directorate. In para 58 (I)(15), the Court gave the following direction:
?Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG's office.?
49. CVC, after taking note of the judgment of the Punjab and Haryana High Court in Jagjit Singh v. State of Punjab (1996) Crl. Law Journal 2962, State of Bihar v. P. P. Sharma 1991 Supp.1 SCC 222, Superintendent of Police (CBI) v. Deepak Chowdhary, 37 (1995) 6 SC 225, framed guidelines which were circulated vide office order No.31/5/05 dated 12.5.2005. The relevant clauses of the guidelines are extracted below:
?2(i) Grant of sanction is an administrative act. The purpose is to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. The question of giving opportunity to the public servant at that stage does not arise. The sanctioning authority has only to see whether the facts would prima-facie constitutes the offence.
(ii) The competent authority cannot embark upon an inquiry to judge the truth of the allegations on the basis of representation which may be filed by the accused person before the Sanctioning Authority, by asking the I.O. to offer his comments or to further investigate the matter in the light of representation made by the accused person or by otherwise holding a parallel investigation/enquiry by calling for the record/report of his department.
(vii) However, if in any case, the Sanctioning Authority after consideration of the entire material placed before it, entertains any doubt on any point the competent authority may specify the doubt with sufficient particulars and may request the Authority who has sought sanction to clear the doubt. But that would be only to clear the doubt in order that the authority may apply its mind proper, and not for the purpose of considering the representations of the accused which may be filed while the matter is pending sanction.
(viii) If the Sanctioning Authority seeks the comments of the IO while the matter is pending before it for sanction, it will almost be impossible for the Sanctioning Authority to adhere to the time limit allowed by the Supreme Court in Vineet Narain?s case.?
50. The aforementioned guidelines are in conformity with the law laid down by this Court that while considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true.
.......
64. I also entirely agree with the conclusion of learned brother Singhvi, J., that the argument of the learned Attorney General that question for granting sanction for prosecution of a public servant charged with offences under the 1988 Act arises only at the stage of cognizance is also not acceptable. In formulating this submission, the learned Attorney General substantially advanced two contentions. The first contention is that an order granting sanction is not required to be filed along with a complaint in connection with a prosecution under Section 19 of the P.C. Act. The aforesaid submission is contrary to the settled law laid down by this Court in various judgments.
64.1. Recently a unanimous three-judge Bench decision of this Court in the case of State of Uttar Pradesh vs.Paras Nath Singh, [(2009) 6 SCC 372], speaking through Justice Pasayat and construing the requirement of sanction, held that without sanction:
?......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.?
From this decision, it is clear that if the sanction is required even at the time of filing, but, if the application for sanction is not granted within a limited time frame, then sanction is deemed to have been granted.
17. Therefore, it is clear that if the application for sanction is not considered within a limited time frame, there is a deemed sanction. But, the question attached to the proposition is whether it is open to the defacto complainant to file any number of complaints, without enclosing sanction order, after the Hon'ble High Court directing the defacto complainant to file the complaint with the sanction order.
18. The 3rd contention of the learned counsel for the petitioner is that before forwarding the private complaint to the Police for investigation, the Magistrate did not apply the mind and therefore, the reference itself is illegal. In support of the same, the following three decisions are relied upon:
i) 2015 (6) SCC 287 (Priyanka Srivastava and another vs. State of Uttar Pradesh and others) ?27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the Bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. And also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.?
ii) 2008 (5) SCC 668 (Maksud Saiyed vs. State of Gujarat and others.
13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. Indian Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.
(iii) Anil kumar and others vs. M.K.Aiyappa and another, (2013) 10 SCC 705
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. 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 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.?
18. In the above decisions, it has been held that application of mind is absolutely necessary before deciding to forward a complaint for investigation. The order passed by the the Special Judge on 21.08.2013, while forwarding the complaint for investigation reads as under:
?Complaint forwarded to Inspector of Police,Vigilance and Anti-Corruption under Section 156(3) of Cr.P.C. for necessary action and report.?
19. Learned Judge, again on 06.02.2014, has passed the following order:
?Report perused. As per report u/s17 of the Act DSP or a police officer of equivalent rank is a competent authority. Hence this complaint is afresh forwarded to DSP of Vigilance and Anti-corruption for enquiry u/s 156(3) Cr.P.C. and report.?
20. These orders passed did not reflect that learned Special Judge did apply the mind to the facts of the case, before directing further investigation. When the order passed is without any discussion and without giving any reason and without even referring the matter to an appropriate authority, then, it is clear that the direction for investigation is without application of mind and hence, it is invalid.
21. Yet another contention of the learned counsel for the petitioner is that the learned Special Judge cannot continue to entertain number of complaints, in respect of the single incident. Once the Special Judge passes an order in the complaint, the Court becomes functuous officio and thereafter, without orders from the superior Court, the Special Judge cannot entertain the 2nd complaint and the learned Magistrate has chosen to entertain three complaints in respect of the same incident and therefore, the complaint is not maintainable. In support of this contention, the following decisions are relied upon:
i) (1986) 2 SCC 709 (Maj.Genl.A.S.Gauraya and another vs. S.N.Thakur and another) ?....What the Court has to see is not whether the Code of Criminal procedure contains any provision prohibiting a Magistrate from entertaining an application to restore a dismissed complaint, but the task should be to find out whether the said Code contains any provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have. It was relying upon this decision that the Delhi High Court in this case directed the Magistrate to re-call the order of dismissal of the complaint. The Delhi High Court referred to various decisions dealing with section 367 (old code) of the Criminal Procedure Code as to what should be the contents of a Judgment. In our view, the entire discussion is misplaced. So far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction.?
ii) (1977) 1 SCC 57 (Bindeshwari Prasad Singh vs. Kali Singh) ?...In fact after having passed the order dated 23-11-1968, the Sub-
Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever.
22. It is true that learned Special Judge becomes functuous officio once the order is pronounced, dismissing the complaint. For the first time, the learned Magistrate has entertained the complaint and on remand by the Hon'ble High Court, giving opportunity to the defacto complainant to file the complaint with sanction order, the complainant should have filed the complaint with sanction order. The complainant ought not to have waited further and only after the Court dismissing it, the complainant has filed another complaint saying that there is a deemed sanction. Hence, the complaint itself is not maintainable, having been filed without sanction order (for the second time).
23. The yet another contention is that there are no materials to substantiate the offence and therefore, it is a fit case for quashing the charge sheet.
24. The caution to be exercised while quashing the charge sheet is sounded in the decision reported in the case of State of Haryana and Others vs Ch.Bhajan Lal and Others, reported in 1992 Supp (1) SCC 335, wherein it has been stated as follows:
?103. The power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice. The court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint.?
Therefore, with caution and care, the contention of the petitioner has to be considered.
25. It is pointed out that excepting the oral evidence of the defacto complainant and his wife, there is no other material to make out the case of demand.
26. The other allegation is that on 15.12.2011, the 2nd respondent along with his friend one Christopher went to the residence of the petitioner to pay the part amount as demanded by the petitioner. At that point of time, the 2nd respondent by using his pen camera is stated to have captured the conversation and handing over of the money between the petitioner and the 2nd respondent. Christopher is stated to have remained outside the house. The only piece of evidence is the recording in the pen camera. After forensic examination, the experts opined that video files are not found in the pen camera.
27. So far as voice files are concerned, it is mentioned that files are unsuitable for forensic voice analysis and identification. Based on these reports, it is contended that, this report will not in any way help the case of the prosecution, and therefore, it is unnecessary waste of time, energy and manpower of prosecution to continue the prosecution.
28. Pointing out that even the procedures to be followed in voice analysis is not followed and also that Courts are expected to be extremely cautious in basing a conviction based on voice identification, the following decisions are relied upon:
(i) (2011) 4 SCC 143 (Nilesh Dinkar Paradkar vs. State of Maharashtra) ?33. In the case of Ram Singh & Ors. Vs. Col. Ram Singh, again this Court stated some of the conditions necessary for admissibility of tape recorded statements, as follows:-
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker.
Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence -- direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape- recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. (4) The statement must be relevant according to the rules of Evidence Act. (5) The recorded cassette must be carefully sealed and kept in safe or official custody. (6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
36.Chapter 14 of Archbold's Criminal Pleading, Evidence and Practice discuss the law in England with regard to Evidence of Identification. Section 1 of this Chapter deals with Visual Identification and Section II relates to Voice Identification. Here again, it is emphasised that voice identification is more difficult than visual identification. Therefore, the precautions to be observed should be even more stringent than the precautions which ought to be taken in relation to visual identification. Speaking of lay listeners (including police officers), it enumerates the factors which would be relevant to judge the ability of such lay listener to correctly identify the voices. These factors include:-
"(a) the quality of the recording of the disputed voice,
(b) the gap in time between the listener hearing the known voice and his attempt to recognize the disputed voice,
(c) the ability of the individual to identify voices in general (research showing that this varies from person to person), 8 2010 edition at pg: 1590-
91?
29. From the materials collected by the investigating agency, it is clear that it is highly doubtful as to whether the prosecution will be able to substantiate the ingredients of the offences alleged.
30. It is the case of the petitioner that as he exercised his administrative power of transfer, this malafide prosecution has been initiated and investigation is not even done by a competent officer and the competent officer has simply endorsed the investigation done by the Inspector of Police and therefore, it is a case where the prosecution has to be quashed.
31. The possibility of convicting the accused or sufficiency of evidence cannot be the criteria to quash the proceedings. However, the strategy being adopted by the defacto complainant to procrastinate the proceedings should be taken note of by this Court as the speedy trial is the fundamental right of the accused.
32. It was within the knowledge of the defacto complainant that he is going to offer the money as a bribe to the petitioner. He has wisely taken a friend along with him. Whenever, he met the defacto complainant, it is only along with an addition, i.e. either his wife or friend. What made him not to take Police Officer from Vigilance and Anti-corruption, who have the exclusive statutory authority to investigate the cases of this nature and have the expertise to prove it without any shadow of doubt. The phenopthaline test is a time tested test to prove the acceptance of the bribe. It is settled law that demand and acceptance of the bribe are the concomitant factors to be proved in order to substantiate the prosecution. In the context of the conduct of the defacto complainant in claiming that the conversation is captured in pen camera and later the pen camera found without video files, the contention of the accused that the defacto complainant wanted to harass the petitioner cannot be ruled out. The repeated filing of the complaints and the cumulative circumstances available in this case would only go to show that all is not well in the private complaint of the 2nd respondent.
33. Considering the totality of circumstances, this Court is of the view that this is a fit case for quashing the complaint.
34. In the result, the Criminal Original Petition is allowed and the final report is quashed.
To
1. Learned Chief Judicial Magistrate-cum-Special Judge, Kanniyakumari District.
2. The Deputy Superintendent of Police, Vigilance and Anti Corruption, Nagercoil, Kanniyakumari District..