Patna High Court - Orders
Maharshi Ram vs The State Of Bihar Through Department Of ... on 15 July, 2014
Author: Anjana Prakash
Bench: Anjana Prakash
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.28737 of 2014
Arising Out of PS.Case No. -118 Year- 2007 Thana -C.B.I CASE District- PATNA
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Maharshi Ram, son of Sri Ram Naresh Ram, resident of village- Sareya
Rampur, P.S.- Darauli, District Siwan
.... .... Petitioner/s
Versus
The State of Bihar through Department of Vigilance
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Akhilesh Dutta Verma, Advocate
For the Opposite Party/s : Mr. Ramakant Sharma, Sr. Advocate/LO I/c,
Vigilance
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CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH
ORAL ORDER
2/ 15-07-2014The Petitioner seeks quashing of the charge sheet of Special case No.41 of 2007 arising out of Vigilance P.S. case No.118 of 2007, pending before the Court of the Special Judge, Vigilance, North Bihar, Muzaffarpur.
2. It has been submitted on behalf of the Petitioner that charge-sheet has been submitted without obtaining sanction order which is illegal and, therefore, the charge-sheet should be quashed.
3. He relies on a decision reported in the case of Anil Kumar and others Vs. M. K. Aiyappa & another [2014 (1) PLJR 4 SC]. The facts of the of the said case were that the Magistrate had received a Complaint that the Appellant with malafide intention had passed order dated 30.06.2012 in Patna High Court Cr.Misc. No.28737 of 2014 (2) dt.15-07-2014 2/8 connivance with other Officers and sold valuable lands in favour of a private person which order was subsequently recalled. Alleging that offences punishable under Section(s) 406, 409, 420, 426, 463, 465, 468, 471, 474 read with Section 120-B and 149 Indian Penal Code and Section 8, 13(1)(c) of the Prevention of Corruption Act, 1988, were made out, a private Complaint was filed before the Special Judge under Section 200 Cr. P.C. On receipt of such Complaint, the Special Judge referred the matter under Section 156(3) Cr. P. C. to be investigated by the Dy. Superintendent of Police, Karnataka Lokayukta, Bangalore Urban.
4. Aggrieved by the said order, the proposed Accused moved the Karnataka High Court in Writ Jurisdiction on the ground that a private Complaint could not be entertained against him, a Public Servant, without obtaining sanction. The High Court took a view that the Special Judge could not have taken notice of the private Complaint without an order of sanction irrespective, as to whether the Court was acting at a pre or post cognizance stage since the proposed accused was a Public Servant, who had acted in discharge of his official duties. The High Court on this ground proceeded to quash the order passed by the Special Judge.
5. The Complainant then moved the Hon'ble Patna High Court Cr.Misc. No.28737 of 2014 (2) dt.15-07-2014 3/8 Supreme Court, which noticed various decisions on the point of sanction. In paragraph 9, it proceeded to examine "whether the order directing investigation under Section 156(3) Cr. P. C. would amount to taking cognizance of the offence, since a contention was raised that expression "cognizance" appearing in Section 19(1) of the P. C. Act will have to be construed as post-cognizance stage, not pre-cognizance stage and therefore requirement of sanction did not arise prior to taking cognizance of the offence punishable under the Act."
6. It noticed the decision rendered in the State of West Bengal and another Vs. Mohd. Khalid and others (1995)1 SCC 684 and that the stage of pre-cognizance is not the same as issuance of process and had explained that while cognizance was the initial stage, issuance of process was a stage subsequent when the Court decided to proceed against the offender after considering the materials placed before it. Accepting such reasoning, the Apex Court proceeded to hold that:
"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."
7. It thereafter in Paragraph 12 proceeded to Patna High Court Cr.Misc. No.28737 of 2014 (2) dt.15-07-2014 4/8 examine whether requirement of sanction was a precondition for ordering investigation under Section 156(3) Cr. P. C. i.e. a pre- cognizance stage and then reproduced the definition of a Public Servant and importance of sanction as required under Section 19 P. C. Act, 1988. However, it did not answer as to how or why sanction was required even at a pre-cognizance stage.
8. When I look into the older decisions of the Apex Court, I find that it has taken a contrary view. In the case of R. R. Chari Vs. The State of Uttar Pradesh (AIR (38) 1951 Supreme Court 207), facts of the case were that a First Information Report was instituted against the Petitioner under the provision of Prevention of Corruption Act. On 22.10.1947, the police applied to the Dy. Magistrate, Kanpur, for issuance of warrant of arrest which was issued on the next day and he was arrested on 27.10.1947 but was granted bail. On 26.11.1947, the District Magistrate cancelled his bail as the Magistrate considered sureties were not proper. On 01.12.1947, the Government appointed a Special Magistrate to try offences under the Act and on 01.12.1947, the Petitioner was produced before the Special Magistrate and granted bail. The police continued their investigation. On 06.12.1948 sanction was granted by the Provincial Govt. to prosecute the Petitioner. On 31.01.1949, Patna High Court Cr.Misc. No.28737 of 2014 (2) dt.15-07-2014 5/8 sanction was granted by the Central Government. It was contended by the Petitioner that on the date of warrant of arrest i.e. 22.10.1947, the Magistrate had taken cognizance and he having done so without sanction of the Govt., the proceedings were illegal. The Court considered various aspects of granting sanction and the meaning of cognizance and stated that it was only on 25.03.1949 i.e. when the Petitioner was ordered to be put up before the Magistrate to answer the charge-sheet submitted by the Prosecution that cognizance had been taken and refused relief to the Petitioner on such ground.
9. In AIR 1971 SC 2372 (Darshan Singh Ram Kishan Vs. the State of Maharashtra), the Apex Court considered the following facts: On 31.10.1963, one Jivansingh Uttamsingh obtained a British Passport and travelled to India with his family using the document when he died. According to the Prosecution, the Passport fell in the hands of the Appellant. One Bakshi Singh desired go to United Kingdom, who had no Passport and, so, the Appellant prepared a Visa in the name of Bakshi Singh and substituted the photograph of Bakshi Singh on the passport of Jivansingh Uttamsingh. On the strength of the same, he journeyed to United Kingdom. The British authorities suspected the Passport and repatriated Bakshi Singh to India after which a substantive Patna High Court Cr.Misc. No.28737 of 2014 (2) dt.15-07-2014 6/8 case was filed and both Bakshi Singh and Darshan Singh Ram Kishan were charge-sheeted. At the stage of committal, the Magistrate did not examine any witness and on the basis of charge-sheet he framed charges and committed the case to the Court of Sessions. Since he had also framed charge under Section 120-B Indian Penal Code which required consent under Section 196-A (2) of the Code of Criminal Procedure, the order was challenged before the Bombay High Court on such ground which matter went up to the Hon'ble Supreme Court.
The Apex Court on the facts held that since it was not at the stage of cognizance, but at the stage of charge that the Magistrate deemed it essential to add Section 120-B Indian Penal Code which required sanction, bar under Section 196-A (2) Cr. P. C. did not apply. The Supreme Court, thus, differentiated the two stages and held that even if cognizance was taken without sanction when the Court had proceeded to the stage of framing of charge, sanction would not be essential. Paragraph 12 is quoted below:
12. It is clear from the charge-sheet submitted to the magistrate that the offence of criminal conspiracy was not even referred to. The offence "primarily and essentially" alleged therein was one of abetment of forgery under sections 468 and 471 and of false impersonation under sec. 419 read with sec. 109; Assuming that the Magistrate before taking cognizance had perused the statements of witnesses Patna High Court Cr.Misc. No.28737 of 2014 (2) dt.15-07-2014 7/8 recorded by the police during investigation, it was conceded by counsel after he himself had gone through them from the record, that none of the witnesses had alleged therein either directly or indirectly of the appellant having entered into a criminal conspiracy with Bakshi Singh for forging the passport.
It cannot be disputed that the charge-sheet also prima facie disclosed the offence of abetment. That being so, it is impossible to sustain the argument that the Magistrate took cognizance of the offence under sec.
120B, and therefore, consent under sec.
196A (2) was required as a condition precedent or that the committal order and the proceedings for committal which he took were vitiated for want of such consent."
10. I may add here that the aforesaid judgments were passed even before Section 19(3) (a) of the Prevention of Corruption Act was added in the Act of 1988. The same is quoted below :
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, -
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
11. Moreover, there appears no requirement in law that a charge-sheet has to be accompanied with an order of Patna High Court Cr.Misc. No.28737 of 2014 (2) dt.15-07-2014 8/8 sanction and hence, finding no merit in the application, the same is dismissed.
(Anjana Prakash, J) Narendra/- & J. Alam/-
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