Gujarat High Court
Gaurishankar Purshottamdas Joshi vs State Of Gujarat on 29 March, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/952/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 952 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or
NO
any order made thereunder ?
Circulate to all the subordinate Court
Judges
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GAURISHANKAR PURSHOTTAMDAS JOSHI....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR AJAYKUMAR CHOKSI, ADVOCATE for the Applicant(s) No. 1
MR VAIBHAV A VYAS, ADVOCATE for the Applicant(s) No. 1
MR. AMIT R JOSHI, ADVOCATE for the Applicant(s) No. 1
MR KL PANDYA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29/03/2016
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R/SCR.A/952/2014 CAV JUDGMENT
CAV JUDGMENT
1 By this application under Article 227 of the Constitution of India, the petitioner - original accused calls in question the legality and validity of the order dated 9th December, 2013 passed by the 5th Additional Sessions Judge, Nadiad rejecting the report filed by the A.C.B. under Sections 169 of the Code of Criminal Procedure, 1973, and taking cognizance against the petitioner for the offence punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.
2 The facts giving rise to this application may be summarized as under:
2.1 The petitioner was serving as a Police Inspector. A First Information Report came to be registered against him at the A.C.B. Police Station, Ahmedabad bearing C.R. No.4 of 2006 for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act, 1988.
2.2 The complainant alleged that the petitioner herein, in his capacity as the Police Inspector, demanded illegal gratification in connection with an offence which was registered at the Balasinor Police Station vide C.R. No.I24 of 2006 for the offence punishable under Sections 498A, 506(1) read with 114 of the Indian Penal Code. In the said F.I.R. i.e. C.R. No.I 24 of 2006, the parents and brother of the complainant were accused.
2.3 At the end of the investigation, the police reached to the conclusion that no case was made out against the petitioner.
2.4 The 5th Additional Sessions Judge, Nadiad, after hearing the Page 2 of 14 HC-NIC Page 2 of 14 Created On Wed Mar 30 01:36:06 IST 2016 R/SCR.A/952/2014 CAV JUDGMENT complainant, passed an order rejecting the report of the police filed under Section 169 of the Cr. P.C. and thought fit to take cognizance under Section 190(1)(b) of the Cr. P.C. for the offence punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Act, 1988. The Additional Sessions Judge ordered issue of process against the petitioner herein. Simultaneously, the learned Additional Sessions Judge also passed an order directing the Director General of Police, State of Gujarat, Gandhinagar to reconsider according of sanction to prosecute the petitioner under Section 19 of the Act, 1988.
2.4 Being dissatisfied, the petitioner has come up with this application under Article 227 of the Constitution of India.
3 Mr. Choksi, the learned counsel appearing for the petitioner submitted that in the case in hand, there is no sanction under Section 19 of the Act, 1988 and in the absence of the same, the Additional Sessions Judge could not have taken cognizance of the offence under the Act, 1988. He submitted that sanction under Section 19 of the Act, 1988 is a condition precedent for taking cognizance of the offence under the Act, 1988. He, therefore, submitted that the impugned order deserves to be quashed.
4 On the other hand, this application has been vehemently opposed by the learned Additional Public Prosecutor appearing for the respondent - State of Gujarat. The learned Additional Public Prosecutor submitted that no error, not to speak of any error of law could be said to have been committed by the learned Judge in passing the impugned order.
5 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls Page 3 of 14 HC-NIC Page 3 of 14 Created On Wed Mar 30 01:36:06 IST 2016 R/SCR.A/952/2014 CAV JUDGMENT for my consideration is whether the Additional Sessions Judge committed any error in passing the impugned order.
6 The following facts are not in dispute:
(a) Sanction under Section 19 of the Act, 1988 was prayed for
by the Investigating Officer before the Director General of Police, State of Gujarat, to prosecute the petitioner for the offence under the Act, 1988, but by an order dated 26th May, 2008, the proposal was rejected and the Director General of Police declined to accord the necessary sanction under Section 19 of the Act, 1988.
(b) As the sanction was not accorded, the Investigating Officer was unable to file chargesheet against the petitioner herein.
(c) As the chargesheet could not be filed in the absence of the order of sanction, the Investigating Officer filed a report under Section 169 of the Cr.P.C. to drop the proceedings against the petitioner.
(d) As on date, there is no sanction to prosecute the petitioner.
7 Bearing in mind the undisputed facts noted above, I need to look into the position of law.
8 Cognizance is taken under Section 190 of the Cr.P.C. There are three modes in which cognizance can be taken, viz. (1) upon receiving complaint of facts which constitutes such offence, (2) upon a police report of such fact, and (3) upon information received from any person other than the Police officer or upon his own knowledge of Page 4 of 14 HC-NIC Page 4 of 14 Created On Wed Mar 30 01:36:06 IST 2016 R/SCR.A/952/2014 CAV JUDGMENT the Magistrate or a Special Judge that such offence has been committed. It is not a case where Section 190(1)(a) of Cr.P.C. is applicable because no complaint was given directly by the complainant to the Special Judge regarding commission of offence by the revisionist. It was also not a case where information was received by the Special Judge from any person other than the Police officer or upon his own knowledge. As such Section 190(1)(c) Cr.P.C. is not attracted. It was a case covered by Section 190(b) of the Cr.P.C. because the F.I.R. was lodged with the police viz. the A.C.B. and ultimately after investigation the A.C.B. submitted a final report. If the final report was rejected by the Special Judge he had no option but to make compliance as required under Sections 200 to 204 of Cr. P.C. before issuing process. There is no compliance of Section 200 Cr. P.C. because after rejection of final report the complainant was not examined. It is also not a case where the Special Judge postponed issuing process and decided to make further enquiry either himself or directed investigation to be made by a Police Officer or by such person as he though fit. Under Section 202(1) Cr. P.C. the Special Judge could have invoked the powers provided under Section 156(3) Cr. P.C. It was not a case where complaint was dismissed hence Section 203 Cr. P.C. is not applicable. Section 204 Cr.P.C. was made applicable because process was ordered to be issued, but there is no mention in the order that in the opinion of the Special Judge there is sufficient ground for proceeding against the petitioner. Even if he decided to issue process without making such observation it was necessary for him to consider the provisions of Section 19(1) and 19(3) of the Prevention of Corruption Act.
9 Section 19(1) of the Prevention of Corruption Act provides that no Court shall take cognizance of an offence punishable under Page 5 of 14 HC-NIC Page 5 of 14 Created On Wed Mar 30 01:36:06 IST 2016 R/SCR.A/952/2014 CAV JUDGMENT Sections 7, 10, 11, 13 and 15 alleged to have been committed by the public servant except with the previous sanction.
10 On the other hand, the learned Additional Public Prosecutor appearing for the respondent - State, however, placed reliance upon Section 19(3)(a) of the Act, 1988 and argued that the previous sanction contemplated under Section 19 is not mandatory, rather it is directory in view of the provisions contained in Section 19(3)(a) of the Act. Section 19(3)(a) of the Act provides that 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 subsection (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.
11 It is wellestablished that cognizance 'is taken of offence and not of the offender'. The expression 'cognizance' has not been defined in the Code to indicate the point when a Magistrate or a Judge takes the judicial notice of an offence. In fact, taking cognizance does not involve any formal action or an action of any kind, but it accrues as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence on the basis of a police report filed under Section 173 of the Code or a complaint filed by a private party.
12 When a Magistrate applies his mind not for the purpose of proceedings under the subsequent Section, but for taking action of some other kind, for example, directing investigation under Section 156(3) or issuing such a direction for the purpose of such investigation, he cannot Page 6 of 14 HC-NIC Page 6 of 14 Created On Wed Mar 30 01:36:06 IST 2016 R/SCR.A/952/2014 CAV JUDGMENT be said to have taken cognizance of the offence. But the moment he exercises his judicial discretion to the facts emerging from the material placed before him during inquiry or on the basis of the police report under Section 173 of the Code for the purpose of taking proceedings, he is said to have taken cognizance of the offence. The point of time at which the legality of the cognizance has to be judged is the time when the cognizance is actually taken under Section 190 of the Code. Under the Code which applies to the trial of such cases, the only provision for taking cognizance is contained in Section 190. Section 195 of the Code which follows that Section is, in fact, a limitation on the unfettered power of a Magistrate to take cognizance under the earlier provision, namely, under Section 190 of the Code. Under the latter Section, the cognizance of any offence can be taken by any Magistrate of the First Class and any Magistrate of the First Class specially empowered in this behalf on the basis of the considerations given in Section 190(New).
13 If a general power to take cognizance of an offence is vested in a Court, any prohibition to the exercise of that power, by any provision of law, must be confined to the terms of the prohibition. The Court is primarily concerned to see that the prosecution for the offences in cases covered by the prohibition, shall not commence without complying that condition contained therein, such as previous sanction of the competent authority in the case of a public servant and any other case with the consent of the party or the party interested for the prosecution or aggrieved by the offence.
14 In view of the above, now it would be appropriate, to detail Section 19 of the Act of 1988 : "19. Previous sanction necessary for prosecution : (1) No Court shall Page 7 of 14 HC-NIC Page 7 of 14 Created On Wed Mar 30 01:36:06 IST 2016 R/SCR.A/952/2014 CAV JUDGMENT take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,
(a) in the case of a person who employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as re quired under SubSection (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) :
(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 SubSection (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;
(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining SubSection (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Page 8 of 14HC-NIC Page 8 of 14 Created On Wed Mar 30 01:36:06 IST 2016 R/SCR.A/952/2014 CAV JUDGMENT Explanation : For the purpose of this Section :
(a) error included competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
15 The close scrutiny of the abovesaid provision provides for previous sanction for prosecution in case of a person employed in connection with the affairs of the Union of State Government or other authority and, as already observed, it is analogous to Section 6 of Prevention of Corruption Act (Old) except Clause 19(3) which provides that on the ground of irregularity of sanction, no finding of the Court can be reversed. Simultaneously, it has also been provided that no Court can stay the proceedings in these cases because of irregularity in sanction or on any other ground. In catena of cases, the Apex Court has held that the burden of proof is on the prosecution to show that the sanction granted for prosecution of an offender is valid. Such burden includes proof that the sanctioning authority had given sanction in reference to the facts on which the proposed prosecution was to be based. These facts might appear on the face of the sanction or it might be proved by independent evidence that sanction was accorded for prosecution after those facts had been placed before the sanctioning authority. The fact that the sanctioning authority signed the sanction for the prosecution on the file and not the formal sanction produced in the Court makes no material difference. I am supported in taking this view by the observations made by their Lordships of the Supreme Court in State of Rajasthan v. Tarachand Jain, 1973 SCC (Cri) 774 : 1973 Cri LJ 1396.The policy underlying Section 6 corresponding to Section 19(New) of the Act of 1988 and similar Sections like Section 197 of the Code is that there should not be unnecessary harassment of the Public servant.
Page 9 of 14HC-NIC Page 9 of 14 Created On Wed Mar 30 01:36:06 IST 2016 R/SCR.A/952/2014 CAV JUDGMENT The object as indicated above is to save the public servant from frivolous and unsubstantiated allegations. Existence of valid sanction is a pre requisite to the taking of cognizance of the enumerated offences alleged to have been committed by the public servant. In the absence of such sanction, the Court would have no jurisdiction to take cognizance of the offences. Thus, a trial without a sanction renders the proceedings ab initio void. A trial without a valid sanction where one is necessary under the abovesaid provisions, is a trial without jurisdiction by the Court. The said observations have been made in para 19 in the case of R. S. Naik v.
A. R. Antulay, AIR 1984 SC 684 : 1984 Cri LJ 613.
16 SubSection (3) of Section 19 empowers the Court even to take cognizance of such cases in the absence of a sanction granted or refused by a competent authority. No doubt, it is a newly added SubSection to that of the old Section and it restrains a Court of appeal in reversing any finding, sentence or order passed by a special Judge on the ground of absence of or any error or omission or irregularity in the sanction required under SubSection (1) yet it does not place an obsolete bar. In case the appellate Court or revisional Court is of the opinion that the failure of justice has been occasioned thereby, such findings, sentence or order passed by a Special Judge can be reversed. Now, as in the instant case, the stage of the case before the Special Judge was that of considering the report filed under Section 169 of the Cr.P.C. before it took cognizance of the same and directed the issuance of process. It is also well established that an accused cannot be heard during inquiry. He can watch the proceedings and see as to what materials have been collected against him by the police in a police case or what primary evidence has been led in an inquiry against him. However, he can neither participate nor take part in the proceedings. In that view of the matter, in case cognizance is taken by a Special Judge, against an Page 10 of 14 HC-NIC Page 10 of 14 Created On Wed Mar 30 01:36:06 IST 2016 R/SCR.A/952/2014 CAV JUDGMENT offender, such an offender cannot agitate before the Court below nor can show to the higher Court i.e. appellate or revisional Court as to what prejudice has been caused to him during inquiry. However, once a direction for the issuance of process is given by a Special Judge, it puts a restraint upon his liberty and he is prejudiced by the mere passing of such an order, as it touches his fundamental right of life and liberty as contained in Article 21 of the Constitution of India.
17 Thus, the only interpretation which can be placed on SubSection (3) is that it applies to proceedings at a stage subsequent to the issuance of process at all stages and not to the proceedings before that stage. In other words, SubSection (3) of Section 19 aforesaid is applicable after the commencement of the trial and not before. In that view of the matter SubSections (1) and (3) of Section 19 appear to be independent of each other. In case the interpretation put forth by the learned Additional Public Prosecutor in the instant case is taken at its face value, Sub Section (1) of Section 19 becomes redundant inasmuch as cognizance of an offence can only be taken at the stage of inquiry by the Special Judge under the provisions of Act of 1988 and by a Magistrate under the provisions of the Code. In this view of the matter, SubSection (1) has to be read in isolation of SubSection (3) which puts a bar upon the powers of the Court to take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Act of 1988, alleged to have been committed by a public servant except with the previous sanction of the appropriate authority. In case of Section 197 of the Code, there is no similar provision to that of SubSection (3) of Section 19. Rather the very provision puts the bar upon the Court to take cognizance of an offence alleged to have been committed by a public servant in the discharge of his official duties mentioned therein except with the previous sanction of the competent authority, which makes it clear that the sanction is to be Page 11 of 14 HC-NIC Page 11 of 14 Created On Wed Mar 30 01:36:06 IST 2016 R/SCR.A/952/2014 CAV JUDGMENT seen visavis the status of the offender at the material time as to whether he is or was a public servant of the categories in that Section.
18 Thus, from whatsoever angle, Subsection (1) of Section 19 of the Act of 1988 is viewed, no Court of a Special Judge under the Act can take cognizance of an offence except with the previous sanction of the appropriate authority.
19 I do not find any merit in the arguments of the learned Additional Public Prosecutor. The case in hand is one where no sanction has been obtained and in such circumstances, the Additional Sessions Judge committed a serious error in taking cognizance and ordering issue of process against the petitioner.
20 Over and above the issue of sanction under Section 19 of the Act of 1988, I take notice of the last part of the impugned order. It appears that the learned Judge, after taking cognizance, without sanction, directed the authority concerned to reconsider the issue of grant of sanction. Of course, on plain reading of the order, it appears that there is no direction to accord sanction, but having regard to the language used the direction is to reconsider the question of sanction. In my view, such order should not have been passed by the Court concerned. There was no reason for the Special Judge to be so anxious to prosecute the petitioner. Pursuant to the order or rather the direction passed by the Special Judge, if ultimately sanction is accorded, there would be the effect of the same. The Supreme Court in Mansukhlal Vithaldas Chauhan v. State of Gujarat [1997 Cr. L.J. 4059] held that a sanction granted by the Sanctioning Authority mechanically was not valid. It has been observed in the said judgment that the validity of sanction depends Page 12 of 14 HC-NIC Page 12 of 14 Created On Wed Mar 30 01:36:06 IST 2016 R/SCR.A/952/2014 CAV JUDGMENT on the applicability of mind by the Sanctioning Authority to the facts of the case as also the materials and evidence collected during the investigation. It necessarily follows that the Sanctioning Authority has to apply its own individual mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the Sanctioning Authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant the sanction vests absolutely in the Sanctioning Authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the Sanctioning Authority was unable to apply its independent mind for any reason whatsoever or was under
an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken "away" and it was compelled to act mechanically to sanction the prosecution.
21 The case in hand is one in which the learned Judge was anxious to prosecute the petitioner. But his anxiety cannot help as he could not legally pass such an order to reconsider the question of grant of sanction. I am of the view that it was beyond his jurisdiction. Even if there is no direction, still by passing such order, he was himself compelling the Sanctioning Authority to accord sanction under compulsion.
20 In the result, this application succeeds and is hereby allowed. The impugned order dated 9th December, 2013 passed by the 5th Additional Sessions Judge, Nadiad is hereby ordered to be quashed.
Page 13 of 14HC-NIC Page 13 of 14 Created On Wed Mar 30 01:36:06 IST 2016 R/SCR.A/952/2014 CAV JUDGMENT 21 In view of the above discussion, the later part of the order of the learned Judge by which he directed the State Government to reconsider the question of grant of sanction is set aside.
22 The learned Judge is directed to reconsider the final report filed by the Investigating Agency under Section 169 of the Cr. P.C. and pass necessary orders keeping in view the observations made above.
(J.B.PARDIWALA, J.) chandresh Page 14 of 14 HC-NIC Page 14 of 14 Created On Wed Mar 30 01:36:06 IST 2016