Rajasthan High Court - Jaipur
Manju Surana vs . Special Judge, Sessions Court ... on 30 April, 2014
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT MANJU SURANA VS. SPECIAL JUDGE, SESSIONS COURT (PREVENTION OF CORRUPTION ACT) NO.1 JAIPUR AND 8 OTHERS. S.B.Cr. Revision Petition No. 341 of 2014 under section 397 Cr.P.C. read with section 401 Cr.P.C. against the order dated 4th Feb. 2014 passed by Special Judge (Prevention of Corruption Act Cases) No.1 Jaipur Metropolitan, Jaipur whereby it has consigned the file to record till the sanction for prosecution is received in complaint No. 9/14 Smt. Manju Surana vs. Sunil Arora and others. Date of Order : April 30 ,2014 PRESENT HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA Mrs. Sangeeta Sharma for the petitioner. REPORTABLE BY THE COURT :
This criminal revision petition has been filed by the petitioner under section 397 Cr.P.C. read with section 401 Cr.P.C. against the order dated 4th Feb. 2014 passed by Special Judge (Prevention of Corruption Act Cases) No.1 Jaipur Metropolitan, Jaipur whereby it has consigned the file to record till the sanction for prosecution is received in complaint No. 9/14 Smt. Manju Surana vs. Sunil Arora and others.
2. Brief facts of this case are that on 9.11.2013, the complainant Manju Surana, who is petitioner herein filed a complaint in the court of Special Judge (Prevention of Corruption Cases) No.1 Jaipur Metropolitan Jaipur for offence under sections 7, 13 of the Prevention of Corruption Act and Sections 420, 467, 468, 471 read with section 120 B IPC against the respondents 2 to 9 herein. The complaint was with regard to (i) Barmer Lift Project, (ii) Barmer Lift Project, (iii) Pokaran Palsood Project, (iv) Manaklao Dantiwara Project and (v) Ummed Sagar _ Dhawa Samdari Part III Project. It is alleged in the revision petition that the higher officials of the State had colluded with each other with a view to give undue benefit to P.S.L. Company to the tune of Rs. 646 crores and thereby causing loss to the exchequer of the State of Rajasthan. On 20.1.2014 the court below heard the arguments on the complait. The aforesaid case came up for hearing before the court below on 4.2.2014 and the court below consigned the case to record on the ground that prosecution sanction has not been granted and only after submission of the prosecution sanction the case has been directed to be reopened. Aggrieved by the order dated 4.2.2014 the complainant has filed this revision petition with the following prayer :
It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this revision petition and direct the learned lower court of Special Judge ( prevention of Corruption Cases) No.1 Jaipur Maha Nagar, Jaipur to forward the complaint to A.C.D. Police Station, Jaipur for conducting investigation in the above matter being case No. 9 of 2014 without insisting on prosecution sanction at this stage.
3. Mrs. Sangeeta Sharma, learned counsel appearing for the petitioner has argued that the impugned order of the court below is patently illegal and erroneous. The court below has wrongly passed the order that prosecution is required against the Government employees while in this case there are private individuals also as against whom the case cannot be kept pending awaiting grant of prosecution sanction and the case should have been proceeded with against the private person. The court below has failed to appreciate that in the instant matter even FIR has not been lodged and as such investigation has also not commenced. Unless a case is made out on the basis of the outcome of the investigation no prosecution sanction can be required even against the Government officials. The court below has not taken into consideration that the complainant has filed the above complaint under section 156(3) Cr.P.C. with a prayer to the A.C.D. Police Station Jaipur for investigation and unless the investigation is done and only when some case is made out then only the question of prosecution sanction arises. In these circumstances it was argued that the impugned order may be quashed and set aside and direct the court below to forward the complaint to A.C.D. for conducting investigation.
4. I have heard the learned counsel for the petitioner. The court below passed the following order on 4.2.2014 :
4.2.2014 ????????? ??????? ???? ?????? ??????? ???? ???????? ???? ????? ???????? ????????
?????? ?? ?? ???? ?? ????????? ?? ??????? ???????? ?? ?????? ?? ???? ??? ?? ??: ?? ???????????? ??? ?????????? ?? ??? ???? ???? ?????????? ??? ??????? ?????????? ?? ????? ??? ??? ??? ?? ??? ???? ??? ?? ??? ??? ?? ?? ?????????? ?????? ???????, 1988 ?? ???? 7, 13 ? ??.?.??. ?? ???? 420-467-468-471/120?? ?? ????? ?? ??????? ?????? ?? ???????? ??? ??? ??? ?????? ?????????? ?? ??? ????????? ?? ?????????? ?????? ???????, 1988 ?? ???? 19 ??? ???? ????????? ?????? ?? ???? 197 ?? ??? ????? ?????????? ?????? ???? ??????????? (??????? ????????) ???????? ???? ?? ??? ??: (2014) 1 Supreme Court Cases (Cri) 35 (2013)10 Supreme Court Cases705 ?? ??? Anil Kumar & Ors. V/s. M.K.Aiyappa & Anr. ??? ?????????? ????????? ?? ?????????? ???? ??? ? ?? ?? ?????? ?? ???? 156(3) ?.???.??. ?? ??? ??????? ???? ???? ?? ???? ?? ?? ? ?? ???? 200 ? 202 ?.???.??. ?? ??? ????????? ?? ?? ???? ???
??: ????? ?????????? ?????? ???? ??? ??????? ?? ?????? ??? ??? ???? ?? ?? ???????? ??? ????????? ??? ?? ???? ??? ???????? ??? ???? ?? ??? ????????? ?? ?? ?????? ???????? ???? ???? ???? ????? ???? ??? ???????? ????? ????? ??? ???? ?????? ???? "
5. I have also looked into the complaint. The petitioner incorporated the following prayer in the complaint :
??: ?? ???????? ???????? ?? ?????? ?? ?? ?????????? 01 ?? 08 ?? ??????? ???? ?????? ???? ??? ???? ?????? ????? ?? ??.??.???? ?? ???? 7 ??? 13(1)(??) ??.??.???? 1988 ??????? ??? 420, 467, 468, 471, 120(??) ???? ??.??.??. ?? ??? ??????? ????? ??? ????? ?????? ?? ???? ??? ?? ???? ??? ???????? ????? ?? ?????? ?????? ?? ?????, ????????? ?????????? ?? ????? ?? ???? ?????? ?????
????? ????? ?????? ?? ?????????? ??.01 ?? 07 ?????? ???? ?????? ?? ?? ???????? ?? ?????????? ??.8 ?? ??? ????????, ??? ?????? ??? ??????? ???? ??? ????? ????? ?? 400 ?? 600 ????? ?? ?????? ???????? ?? ????????? ??? ????? ???? ???? ?? ????? ?? ???? ?????, ?.??.??. ????? ???????? ?? ????? ???? ???? ???????? ?.??.??. ????? ???? ???? 156(3) ??.??.??.??. ?? ??? ????? ??.??.??. ???? ?? ????? ???? ?? ???? ?????? ?????
6. Before proceeding further it would be necessary to have a look at the relevant provisions of the Criminal Procedure Code and the Prevention of Corruption Act.
7. Section 156 Cr.P.C. reads as under :
156. Police officers power to investigate cognizable case. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.
Section 200 Cr.P.C. reads as under :
200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses
(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
Section 2 of the Prevention of Corruption Act, deals with definition :
Section 2. Definitions
(c) public servant means
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
(v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other office-bearer of a registered cooperative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);
(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;
(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.
Explanation 1.Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not.
Explanation 2.Wherever the words public servant occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.
.
8. Section 5. of the Prevention of Corruption Act, which relates to Procedure and powers of Special Judge reads as under :
5. Procedure and powers of Special Judge.(1) A Special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by Magistrates.
(2) A Special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and any pardon so tendered shall, for the purposes of sub-sections (1) to (5) of Section 308 of the Code of Criminal Procedure, 1973 (2 of 1974), be deemed to have been tendered under Section 307 of that Code.
(3) Save as provided in sub-section (1) or sub-section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor.
(4) In particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of Sections 326 and 475 of the Code of Criminal Procedure, 1973 (2 of 1974), shall, so far as may be, apply to the proceedings before a Special Judge and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate.
(5) A Special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.
(6) A Special Judge, while trying an offence punishable under this Act, shall exercise all the powers and functions exercisable by a District Judge under the Criminal Law Amendment Ordinance, 1944 (Ordinance 38 of 1944).
9. Section 19 of the Prevention of Corruption ??? related to previous sanction for prosecution reads as under :
19. Previous sanction necessary for prosecution.(1) No court shall 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 is 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 required under sub-section (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 sub-section (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 under sub-section (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.
Explanation.For the purposes of this section,
(a) error includes 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.
Since the order of the court below is based on the basis of the Apex Court ruling in Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705, the relevant rulings of the Appex Court are necessary to be looked into.
10. The Apex Court in State of U.P. v. Paras Nath Singh, (2009) 6 SCC 372, held as under :
10. Prior to examining [whether] the courts below committed any error of law in discharging the accused, it may not be out of place to examine the nature of power exercised by the court under Section 197 of the Code and the extent of protection it affords to public servants, who, apart from various hazards in discharge of their duties, in absence of a provision like the one may be exposed to vexatious prosecution. Sections 197(1) and (2) of the Code read as under:
197. Prosecution of Judges and public servants.(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government 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, no court shall take cognizance of such offence except with the previous sanction
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government.
* * * (2) No court shall take cognizance of any offence alleged to have been committed by any member of the armed forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is, if the conditions mentioned are not made out or are absent then no prosecution can be set into motion. For instance, no prosecution can be initiated in a Court of Session under Section 193, as it cannot take cognizance as a court of original jurisdiction, of any offence, unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, no court shall take cognizance of such offence except with the previous sanction. Use of the words no and shall makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Blacks 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.
11. Such being the nature of the provision, the question is how should the expression, any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, be understood? What does it mean? Official according to the dictionary, means pertaining to an office, and official act or official duty means an act or duty done by an officer in his official capacity. In B. Saha v. M.S. Kochar1 it was held: (SCC pp. 184-85, para 17)
17. The words any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, it is no part of an official duty to commit an offence, and never can be. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision.
(emphasis in original) Use of the expression official duty implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty.
12. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of office. Official duty therefore implies that the act or omission must have been done by the public servant in course of his service and such act or omission must have been performed as part of duty which, further, must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance, a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that that act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance, a police officer in discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in course of service but not in discharge of his duty then the bar under Section 197 of the Code is not attracted. To what extent an act or omission performed by a public servant in discharge of his duty can be deemed to be official, was explained by this Court in Matajog Dobey v. H.C. Bhari (AIR 1956 SC 44) thus: (AIR p. 49, paras 17 & 19)
17. The offence alleged to have been committed [by the accused] must have something to do, or must be related in some manner, with the discharge of official duty.
* * *
19. There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty; that the accused could lay a reasonable [claim], but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.
13. If, on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then the act must be held to be official to which applicability of Section 197 of the Code cannot be disputed.
14. In S.A. Venkataraman v. State (AIR 1958 SC 107) and in C.R. Bansi v. State of Maharashtra (1970 )3 SCC 537 this Court has held that: (Venkataraman case (AIR 1958 SC 107, AIR p. 111, para 14)
14. There is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed.
* * *
11. The Apex Court in State of W.B. v. Mohd. Khalid, (1995) 1 SCC 684, held as under :
43. Similarly, when Section 20-A(2) of TADA makes sanction necessary for taking cognizance it is only to prevent abuse of power by authorities concerned. It requires to be noted that this provision of Section 20-A came to be inserted by Act 43 of 1993. Then, the question is as to the meaning of taking cognizance. Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word cognizance indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons.
44. Cognizance is defined in Whartons Law Lexicon 14th Edn., at page 209. It reads:
Cognizance (Judicial), knowledge upon which a judge is bound to act without having it proved in evidence: as the public statutes of the realm, the ancient history of the realm, the order and course of proceedings in Parliament, the privileges of the House of Commons, the existence of war with a foreign State, the several seals of the King, the Supreme Court and its jurisdiction, and many other things. A judge is not bound to take cognizance of current events, however notorious, nor of the law of other countries.
12. The Apex Court in Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 held as under :
38. The Court then referred to some of the precedents including the judgment in Mohd. Khalid case (1995) 1 SCC 684 and observed: (Pastor P. Raju case (2006) 6 SCC 728, SCC p. 734, para 13)
13. It is necessary to mention here 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 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.
39. In Kalimuthu case (2005)4 SCCC 512, the only question considered by this Court was whether in the absence of requisite sanction under Section 197 CrPC, the Special Judge for CBI Cases, Chennai did not have the jurisdiction to take cognizance of the alleged offences. The High Court had taken the view that Section 197 was not applicable to the appellants case. Affirming the view taken by the High Court, this Court observed: (SCC p. 521, para 15)
15. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage. Further, in cases where offences under the Act are concerned, the effect of Section 197, dealing with the question of prejudice has also to be noted.
40. In Raj Kumar Jain case (1998 )6 SCC 551, this Court considered the question whether CBI was required to obtain sanction from the prosecuting authority before approaching the Court for accepting the report under Section 173(2) CrPC. This question was considered in the backdrop of the fact that CBI, which had investigated the case registered against the respondent under Section 5(2) read with Section 5(1)(e) of the 1947 Act found that the allegation made against the respondent could not be substantiated. The Special Judge declined to accept the report submitted under Section 173(2) CrPC by observing that CBI was required to place materials collected during investigation before the sanctioning authority and it was for the authority concerned to grant or refuse sanction. The Special Judge opined that only after the decision of the sanctioning authority, CBI could submit the report under Section 173(2). The High Court dismissed the petition filed by CBI and confirmed the order of the Special Judge.
41. This Court referred to Section 6(1) of the 1947 Act and observed: (Raj Kumar Jain case (1998 )6 SCC 551, SCC pp. 552-53, para 5)
5. From a plain reading of the above section it is evidently clear that a court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions. Viewed in that context, CBI was under no obligation to place the materials collected during investigation before the sanctioning authority, when they found that no case was made out against the respondent. To put it differently, if CBI had found on investigation that a prima facie case was made out against the respondent to place him on trial and accordingly prepared a charge-sheet (challan) against him, then only the question of obtaining sanction of the authority under Section 6(1) of the Act would have arisen for without that the court would not be competent to take cognizance of the charge-sheet. It must, therefore, be said that both the Special Judge and the High Court were patently wrong in observing that CBI was required to obtain sanction from the prosecuting authority before approaching the court for accepting the report under Section 173(2) CrPC.
13. The Apex Court in Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668, held as under :
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. The 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.
14. In Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705, the Leave was granted by the Apex Court. The Apex court in this case concerned with the question whether the Special Judge/Magistrate is justified in referring a private complaint made under Section 200 CrPC for investigation by the Deputy Superintendent of Police, Karnataka Lokayukta, in exercise of powers conferred under Section 156(3) CrPC without the production of a valid sanction order under Section 19 of the Prevention of Corruption Act, 1988. The appellants filed a private complaint under Section 200 CrPC before the Additional City Civil and Special Judge for Prevention of Corruption on 9-10-2012. The complaint of the appellants was that the first respondent with mala fide intention passed an order dated 30-6-2012 in connivance with other officers and restored valuable land in favour of a private person. On a complaint being raised, the first respondent in that case vide order dated 6-10-2012 recalled the earlier order alleging that the offence which led to issuance of the order dated 30-6-2012 constituted ingredients contained under Sections 406, 409, 420, 426, 463, 465, 468, 471, 474 read with Section 120-B IPC and Section 149 IPC and Sections 8, 13(1)(c), 13(1)(d), 13(1)(e), 13(2) read with Section 12 of the Prevention of Corruption Act. In these circumstances a private complaint was preferred under Section 200 CrPC. On receipt of the complaint, the Special Judge passed order on 20-10-2012 which reads as follows:
On going through the complaint, documents and hearing the complainant, I am of the sincere view that the matter requires to be referred for investigation by the Deputy Superintendent of Police, Karnataka Lokayukta, Bangalore Urban, under Section 156(3) CrPC. Accordingly, I answer Point 1 in the affirmative.
Point 2: In view of my finding on Point 1 and for the foregoing reasons, I proceed to pass the following:
ORDER The complaint is referred to Deputy Superintendent of Police 3 Karnataka Lokayukta, Bangalore Urban, under Section 156(3) CrPC for investigation and to report.
Aggrieved by the said order, the first respondent in that case approached the High Court of Karnataka by filing Writ Petitions Nos. 13779-80 of 2013. In the writ petition it was contended before the High Court that since the petitioner is a public servant, a complaint brought against him without being accompanied by a valid sanction order could not have been entertained by the Special Court on the allegations of offences punishable under the Prevention of Corruption Act. It was submitted that even though the power to order investigation under Section 156(3) can be exercised by a Magistrate or the Special Judge at pre-cognizance stage, yet, the governmental sanction cannot be dispensed with. It was also contended that the requirement of a sanction is the prerequisite even to present a private complaint in respect of a public servant concerning the alleged offence said to have been committed in discharge of his public duty. The High Court, after hearing the parties, took the view that the Special Judge could not have taken notice of the private complaint unless the same was accompanied by a sanction order, irrespective of whether the court was acting at a pre-cognizance stage or the post-cognizance stage, if the complaint pertains to a public servant who is alleged to have committed offences in discharge of his official duties. The High Court, in that case quashed the order passed by the Special Judge, as well as the complaint filed against the petitioner. Aggrieved by the same, the complainants filed appeal before the Apex Court .
The Apex Court after considering the arguments of both the parties, rejected the appeal. The Apex Court held that a Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore, clothed with all the Magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options: he may take cognizance of the offence under Section 190 CrPC or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) CrPC. The 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) CrPC.
The learned Senior Counsel appearing for the appellants in that case 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. The Apex Court took notice of it and observed that we find it difficult to accept that contention. The Apex court held as under 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) CrPC. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh (2009)6 SCC 372 and Subramanian Swamy (2012) 3 SCC 64 cases.
22. Further, this Court in Army Headquarters v. CBI (2012) 6 SCC 228 opined as follows: (SCC p. 261, paras 82-83)
82. Thus, in view of the above, the law on the issue of sanction can be summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him.
83. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio.
23. We are of the view that the principles laid down by this Court in the above referred judgments squarely apply to the facts of the present case. We, therefore, find no error in the order passed by the High Court. The appeals lack merit and are accordingly dismissed.
In P. Nallammal v. State, (1999) 6 SCC 559, the Apex Court in Head Note A observed as under :
Some of the former Ministers of the Tamil Nadu Government were prosecuted before certain Special Courts for the offence, inter alia, under Section 13(1)(e) of the Prevention of Corruption Act, 1988 (for short the PC Act). They were indicted on the premise that they were public servants during the relevant time and that each one has amassed wealth disproportionate to his/her known sources of income, for which he/she is unable to account. But in all such cases, some of their kith and kin are also being arraigned as co-accused to face the said offence read with Section 109 of the Indian Penal Code (for short the Penal Code). The question before the Supreme Court was whether they were liable to be prosecuted along with the public servants for the offence under Section 109 of the Penal Code read with Section 13(1)(e) of the PC Act. It was contended that a non-public servant has no role in the trial of the said offence and hence he cannot concievably be tagged with the public servant for the offence under section 13(1) (e) of the PC Act. Dismissing the appeals by leave, the Supreme Court.
In paras 16, 17 and 18 the Apex Court in the above case of P.Nallammal (supra) observed as under :
16. Section 13 of the PC Act is enacted as a substitute for Sections 161 to 165-A of the Penal Code which were part of Chapter IX of that Code under the title All offences by or relating to public servants. Those sections were deleted from the Penal Code contemporaneous with the enactment of Section 31 of the PC Act (vide Section 31 of the PC Act). It is appropriate to point out here that in the original old PC Act there was no provision analogous to Section 13(1)(e), but on the recommendation of Santhanam Committee the said Act was amended in 1964 by incorporating Section 5(1)(e) in the old PC Act. Parliament later proceeded to consolidate and amend the law relating to prevention of corruption and in the bill introduced for that purpose the following was declared as per the Statement of Objects and Reasons thereof:
2. The Prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abet them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment of ill-gotten wealth obtained through corrupt means, including from transferees of such wealth. The Bill seeks to incorporate all these provisions with modifications so as to make the provisions more effective in combating corruption among public servants.
17. Thus, one of the objects of the new Act was to incorporate all the provisions to make them more effective. Section 165-A of the Penal Code read like this:
165-A. Punishment for abetment of offences defined in Section 161 or Section 165.Whoever abets any offence punishable under Section 161 or Section 165, whether or not that offence is committed in consequence of the abetment, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
18. Therefore, the legislative intent is manifest that abettors of all the different offences under Section 13(1)(e) of the PC Act should also be dealt with along with the public servant in the same trial held by the Special Judge.
15. The respondents 2 to 8 are the public servants as per the array of parties filed by the petitioner in the criminal revision petition and the respondent No.9 being a private party the Special Judge, Sessions Court (Prevention of Corruption Act)No.1 Jaipur Metropolitan has rightly consigned the complaint to record in absence of prosecution sanction in view of the law laid down by the Apex Court in Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 and further in P. Nallammal v. State, (1999) 6 SCC 559. The consigning of case to record is an interlocutory order and the petitioner is not entitled to file a revision petition against an interlocutory order as section 19 (3) (c) of the Prevention of Corruption Act, quoted above states that 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. Thus, this revision petition is not maintainable against an interlocutory order of consigning the case to record by the court below and deserves to be rejected.
16. For the reasons mentioned above, the revision petition being devoid of merit is rejected in limine.
(Mahesh Chandra Sharma) J.
OPPareek/ All corrections made in the judgment /order have been incorporated in the judgment /order being E-mailed.
O.P.Pareek Deputy Registrar