Himachal Pradesh High Court
Sh Ganesh Dutt Thakur Son Of Ghurko Ram vs Mrs Gita Singh Wife Of Rattan Singh And ... on 30 July, 2015
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA:
.
CR.MMO NO.178 of 2014
Order reserved on: 23.7.2015.
Date of Order: July 30 ,2015.
Sh Ganesh Dutt Thakur son of Ghurko Ram. ....Petitioner.
of
Vs:
Mrs Gita Singh wife of Rattan Singh and another.
rt ...Non-petitioners.
Coram:
The Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for Reporting?1yes
For petitioner: Mr.Sunil Mohan Goel, Advocate.
For non-petitioner No.1. Mr.N.K.Thakur, Sr. Advocate with
Mr.Ramesh Sharma, Advocate.
For non-petitioner No.2. Mr.J.S.Rana Assistant Advocate
General.
P.S.Rana, Judge.
ORDER:Present petition is filed under Section 482 of the Code of Criminal Procedure 1973 for quashing order dated 1 Whether reporters of Local Papers may be allowed to see the judgment?yes ::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 2 24.5.2014 passed by learned Special Judge District Sirmour .
at Nahan HP in Application No.92-Cr.M/4 of 2014 titled Smt. Gita Singh Vs. Deputy Superintendent of Police SV & ACB Nahan District Sirmour HP whereby learned Special Judge Sirmour District at Nahan has sent private complaint filed under Section 156(3) Cr.PC relating to offence under Section of 7 and 13(2) of Prevention of Corruption Act 1988 to DSP State Vigilance and Anti Corruption Bureau Nahan District rt Sirmour HP to make investigation in accordance with law.
BRIEF FACTS OF THE CASE:
2. Smt. Geeta Singh wife of Sh Rattan Singh resident of Set No.25 Type IV Government Colony Kasumpti Shimla Tehsil and District Shimla HP filed application under Section 156(3) Cr.PC for registration and investigation of case under Sections 7 and 13(2) of Prevention of Corruption Act 1988 against Ganesh Dutt Thakur Excise and Taxation Officer. There is recital in the complaint filed under Section 156(3) Cr. PC that Ganesh Dutt Thakur was posted as Excise and Taxation Officer (Flying Squad) Parwanoo in the year 2012. There is further recital in complaint that while Ganesh Dutt Thakur posted as Excise and Taxation Officer (Flying ::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 3 Squad) Parwanoo procured copies of Annual VAT .
Returns/Account books for the year 2005-06 to 2008-09 of M/s Jay Aay Alloys (P) Ltd. Kala Amb. There is further recital in complaint that on scrutiny of said returns Ganesh Dutt Thakur Excise and Taxation Officer found that firm had evaded VAT by claiming excess Input Tax Credit and of thereafter Ganesh Dutt Thakur Excise and Taxation Officer issued show cause notice dated 9.6.2010 to the firm rt proposing to impose additional demand of Rs.2584579/-
(Twenty five lacs eighty four thousand five hundred seventy nine) upon firm. There is further recital in complaint filed before learned Special Judge District Sirmour at Nahan HP that after hearing firm Ganesh Dutt Thakur ETO reduced additional amount to Rs. 147817/- (One lac forty seven thousand eight hundred seventeen). There is further recital in complaint that Ganesh Dutt Thakur ETO after issuance of notice dated 9.6.2010 obtained pecuniary benefit from the firm and reduced additional demand of VAT to Rs.147817/-
(One lac forty seven thousand eight hundred seventeen) from an amount of Rs. 2584579/- (Twenty five lacs eighty four thousand five hundred seventy nine) and caused wrongful ::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 4 loss to the government and obtained wrongful gain himself .
and for the firm. There is further recital in complaint that on dated 14.11.2012 on the basis of separate and independent information SV&ACB registered FIR No.3/2012 at police station Chamba against Ganesh Dutt Thakur ETO for possessing disproportionate assets. There further recital in of complaint that Ganesh Dutt Thakur ETO was found to possess a hotel and a restaurant at Nadaun, a valuable piece rt of land at Indora, a resort at Nainikhad, a multi storey marble house at Chamba and two flats at Baddi.
Complainant Smt. Geeta Singh requested learned Special Judge District Sirmour at Nahan HP for registration of FIR and investigation of case under Section 156(3) Cr.PC in public interest.
3. Learned Special Judge District Sirmour at Nahan passed following order:
24.5.2014 Present: Sh R.L.Garg Advocate for the applicant.
Office report seen. It be registered. Heard. Serious allegations have been levelled in the complaint hence this complaint is sent to the DSP State Vigilance and Anti Corruption Bureau ::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 5 Nahan District Sirmour HP to make investigation .
in accordance with law. Application along with copy of this order be sent forthwith. Papers of this Court be completed and consigned to the record room.
Announced:
May 24,2014.
of Sd/-
Special Judge Sirmour District at Nahan HP.
4. Feeling aggrieved against the order dated rt 24.5.2014 petitioner filed present petition under Section 482 Cr.PC.
5. Court heard learned Advocate appearing on behalf of petitioner and learned Advocate appearing on behalf of non-petitioner No.1 and learned Assistant Advocate General appearing on behalf of non-petitioner No.2.
6. Following points arise for determination in present petition filed under Section 482 of the Code of Criminal Procedure 1973:
(1) Whether previous sanction is necessary under Section 19 of the Prevention of Corruption Act 1988 at the time of sending private complaint under Section 156(3) Cr.PC for ::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 6 investigation by Special Judge under Prevention .
of Corruption Act 1988?.
(2) Final Order.
Finding upon Point No.1.
7. Submission of learned Advocate appearing on behalf of petitioner that in view of ruling reported in 2013 of (10) SCC 705 titled Anil Kumar and others Vs. M.K.Aiyappa and another the order passed by learned Special Judge Sirmour District at Nahan dated 24.5.2014 announced in rt application No.92-Cr.M/4 of 2014 titled Smt. Gita Singh Vs. Deputy Superintendent of Police SV & ACB Nahan District Sirmour HP and consequential FIR No. 5/2014 dated 6.6.2014 registered under Sections 7 and 13(2) of Prevention of Corruption Act 1988 be quashed and set aside is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused judgment reported in 2013 (10) SCC 705 titled Anil Kumar and others Vs. M.K.Aiyappa and another. Ruling cited supra is announced by Hon'ble Division Bench of Supreme Court and Hon'ble Division Bench of Supreme Court held that Special Judge could not refer the matter under Section 156 (3) Cr.PC against public servant without valid previous sanction order ::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 7 for prosecution. Court has also carefully perused the ruling .
reported in 1976 (3) SCC 252 titled D.L.Reddy and others Vs. V.Narayana Reddy and others announced by Hon'ble three judges bench of apex Court of India. Hon'ble three judges bench of apex Court of India held that power under Section 156(3) Chapter XII Cr.PC and powers under Section 200 of Chapter XV Cr.PC are entirely two different powers. Hon'ble three judges bench of apex Court of India held that power rt under Section 156(3) Cr.PC under Chapter XII is exercised at pre-cognizance stage of case. Hon'ble three judges bench of apex Court of India further held that power under Section 200 Chapter XV Cr.PC is exercised in post cognizance stage of the case. It is well settled law that when there is conflict between rulings of two judges bench and three judges bench then decision of three judges bench always prevails. Also see 2013 (5) SCC 615 titled Madho and another Vs. State of Maharashtra and another. Also see 2014 (2) SCC 1 titled Lalita Kumari Vs. Vs. State of UP. Also see 2015 (6) SCC 287 titled Priyanka Srivastava and another Vs. State of Uttar Pradesh and others.
::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 88. As per Section 22 of the Prevention of Corruption .
Act 1988. Code of Criminal Procedure 1973 is applicable to cases which fall under the Prevention of Corruption Act 1988 subject to certain modification. There is no express provision in the Prevention of Corruption Act 1988 that provision of Section 156(3) of the Code of Criminal Procedure 1973 will of not apply to cases falling under Prevention of Corruption Act 1988.
9. rt As per Section 19 of Prevention of Corruption Act 1988 previous sanction is required at the time when Special Judge take cognizance of offence punishable under Sections 7,10,11,13 and 15 of Prevention of Corruption Act 1988. It is held that order passed under section 156(3) Cr.PC is not the stage of cognizance of offence in view of ruling given by Hon'ble three judges bench of apex Court of India reported in 1976 (3) SCC 252 titled D.L.Reddy and others Vs. Narayana Reddy and others. It is well settled law that cognizance of offence is taken by Court in private complaint under Section 200 Chapter XV of the Code of Criminal Procedure 1973 when the statement of complainant is recorded on oath.
::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 910. In the present case learned Special Judge .
Sirmour District at Nahan did not take cognizance of private complaint under Section 200 Chapter XV of the Code of Criminal Procedure and learned Special Judge did not record the statement of complainant on oath. On the contrary learned Special Judge opted to send complaint of under Section 156 (3) Chapter XII Cr.PC for investigation at pre-cognizance stage. It is well settled law that whenever any rt private complaint is received by Court then Court has two options. (1) To send the private complaint under Section 156 (3) Cr.PC for investigation to save valuable time of Court from inquiring into matter which is primary duty of police to investigate. Power under Section 156(3) Cr.PC Chapter XII is exercised by Magistrate before taking cognizance of offence.
(2) To proceed under Section 200 Chapter XV Code of Criminal Procedure 1973 and to examine complainant on oath. It is well settled law that if once Court takes cognizance of the offence himself under section 200 Chapter XV of the Code of Criminal Procedure 1973 then Court could not revert back to pre-cognizance stage.
::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 1011. As per Section 26 of Prevention of Corruption .
Act 1988 every Special Judge appointed under Prevention of Corruption Act 1988 is original trial Court. As per Section 28 of Prevention of Corruption Act 1988 the provisions of special act are in addition to any other law and are not in derogation of any other law for the time being in force.
of
12. It is well settled law that powers under section 156(3) Chapter XII Code of Criminal Procedure can be rt exercised in cognizable cases only. There is classification of offences under IPC in part-I of first schedule of Code of Criminal Procedure. There is classification of offences against other laws in part-II of schedule first. Offences which are punishable for more than three years against any other laws have been mentioned as cognizable offences under part II of schedule I of the Code of Criminal Procedure. Punishment under Section 7 of Prevention of Corruption Act 1988 is five years and punishment under Section 13(2) of Prevention of Corruption Act is seven years. Hence it is held that offences under Section 7 and 13(2) of Prevention of Corruption Act 1988 are cognizable offence. As per section 5(4) of Prevention ::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 11 of Corruption Act 1988 Special Judge shall be deemed to be .
Magistrate.
13. It is held that order passed by learned Special Judge District Sirmour at Nahan under Section 156(3) Cr.PC dated 24.5.2014 in Application No. 92-Cr.M/4 of 2014 titled Smt. Gita Singh Vs. Deputy Superintendent of Police SV & of ACB Nahan District Sirmour was passed in pre-cognizance stage of the case. It is held that previous sanction as rt required under section 19 of Prevention of Corruption Act 1988 at the time of passing order under Section 156(3) Cr.PC was not required. It is held that order under Section 156(3) Cr.PC is in the nature of peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1) of the Code of Criminal Procedure 1973. It is held that such investigation begins with collection of evidence under Section 156 Cr.PC and ends with a report or chargesheet under Section 173 Cr.PC. As per section 4 of Prevention of Corruption Act 1988 all cases under Prevention of Corruption Act 1988 are triable by Special Judge.
::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 1214. Another submission of learned Advocate .
appearing on behalf of petitioner that false facts have been levelled by complainant in the complaint and on this ground petition filed under Section 482 Cr.PC be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the contents of of petition and response filed by non-petitioners. Material propositions of facts affirmed by one party and denied by rt other party and same cannot be decided at this stage of case.
Material proposition of facts asserted by one party and denied by other party will be decided by learned trial Court when case shall be disposed of on merit after giving due opportunity to both parties to adduce evidence in support of their case. In view of above stated facts point No.1 is answered in negative.
Point No.2(Final Order)
15. In view of my finding upon point No.1 petition filed under Section 482 of the Code of Criminal Procedure 1973 is rejected. Order passed by Special Judge dated 24.5.2014 in private complaint No.92-Cr.M/4 of 2014 tilted Smt. Geeta Singh Vs. DSP SV&ACB Nahan (HP) is affirmed.
::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 13Observation made hereinabove is strictly for the purpose of .
deciding the present petition filed under Section 482 of the Code of Criminal Procedure and it shall not effect merits of case in any manner. Petition is disposed of. All pending application(s) if any are also disposed of.
of (P.S.Rana), Judge.
July 30,2015(R) rt ::: Downloaded on - 15/04/2017 18:39:33 :::HCHP 14 .
of rt ::: Downloaded on - 15/04/2017 18:39:33 :::HCHP