Delhi District Court
Cc No. 12/2015; Mohd. Nazim vs . Gopi Chand Etc. Page No. 1 Of 7 on 17 February, 2016
1
IN THE COURT OF MS.HEMANI MALHOTRA/SPL.JUDGE
POC Act/ACB/CENTRAL05/THC/DELHI
Complaint Case No. 12/2015
U/s 7,8,10 and 13 of POC Act and
U/Ss 167,217,218 and 219 of IPC
Case ID No. 02401R0618362015
Mohd. Nazim
S/o Late Sohrab Ali,
R/o E81/4, Chand Bagh,
Gokul Puri, Delhi
......Complainant
Versus
1. Gopi Chand
Sub Inspector,
PS Bhajanpura (NE Distt.),
Delhi94
2. Deputy Commissioner of Police
North East District,
GTB Enclave, Delhi94
........Proposed Accused
Date of institution : 10.11.2015
Date of receiving by this Court : 16.11.2015
Date of reservation of judgment : 16.02.2016
Date of pronouncement of judgment : 17.02.2016
ORDER
1. Vide this order I shall dispose off complaint filed by the complainant Mohd. Nazim u/s 200 Cr.P.C. r/w Sec. 156(3) Cr.P.C. seeking directions to summon the proposed accused persons Gopi Chand (SI, PS CC No. 12/2015; Mohd. Nazim Vs. Gopi Chand etc. Page No. 1 of 7 2 Bhajanpura) and DCP (North East District) and registering FIR against them u/ss 7, 8, 10 & 13 of Prevention of Corruption Act, 1988 read with Sections 167/217/218/219 of IPC.
2. The allegations against the proposed accused No.1 Gopi Chand (SI) as per the complainant Mohd. Nazim are that he falsely implicated one Sufiyan, son of the complainant in a kalandra U/ss 107/151 Cr.P.C. and subsequently demanded Rs.20,000/ from the complainant for release of his son, whereas the allegations against the proposed accused No.2 are that he did not take any action against proposed accused no.1 despite repeated complaints against him.
3. Before considering the merits of the case, Learned counsel for complainant was asked to address arguments on the maintainability of the complaint filed U/ss 7, 8, 10 and 13 of POC Act r/w Sections 167/217/218/219 IPC as the complaint is filed without obtaining requisite sanction to prosecute both the proposed accused persons who are public servants as mandated U/s 19 of the POC Act.
4. It is argued by the learned Counsel for the complainant that no previous sanction is required to take cognizance of an offence punishable u/ss 7, 8, 10 and 13 of POC Act committed by the proposed accused persons in the present case as while accepting bribe, a public servant cannot be said to be acting in discharge of his official duties. Learned Counsel for the complainant while arguing on the issue of sanction, has drawn analogy from Section 197 Cr.P.C. and relied upon various judgments of the Hon'ble Supreme Court and High Courts (Prabhakar V. Sinari Vs. Shanker Anant Verlekar, 1968 High, AIR 1969 SC 686; Gurbachan Singh Vs. State, AIR 1970 DEL 102; Profulla Roy Vs. State, ILR 1973 Delhi 532; Inspector of Police & Anr. Vs. Battenapatla Venkata Ratnam & Anr, decided on 13.04.2015 CC No. 12/2015; Mohd. Nazim Vs. Gopi Chand etc. Page No. 2 of 7 3 in Crl.Appeal No.129 of 2013) wherein it has been observed that no sanction u/s 197 Cr.P.C. was necessary since that Section relates to offences alleged to have been committed by a public servant while acting or purporting to act in the discharge of his official duties, and that while accepting bribes a public servant cannot be said to be acting in discharge of his official duties. The said argument does not hold any water as the judgments relied upon by the learned counsel for the complainant specifically dealt with the offences committed by the public servants punishable under Indian Penal Code and not Prevention of Corruption Act. In Dr.Subramaniam Swamy Vs. Dr. Manmohan Singh & Anr. (Civil Appeal No.1193/2012 arising out of SLP (C) No.27535/2010) decided on 31.01.2012, conclusion arrived at by the Hon'ble Supreme Court in Kalicharan Mahapatra Vs. State of Orissa reported in (1998) 6 SCC 411 was quoted and the same is as follows:
"The sanction contemplated in Section 197 of the Code concerns a public servant who "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", whereas the offences contemplated in the POC Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former POC Act was materially imported in the new POC Act, 1988 without any change in spite of the change made in Section 197 of the Code."
It was then observed by the Hon'ble Supreme Court in the case of Dr. Subramaniam Swamy (supra) that, "The above passage in Kalicharan (supra) has been quoted with approval subsequently by this Court in Lalu Prasad Vs. State of Bihar reported in 2007 (1) SCC 49 at paragraph 9, pg. 44. In para 10, (Pg.54 of the report), this court held in Lalu Prasad (supra) that Section 197 of the Code and Section 19 of the Act operate in conceptually different fields."
Hence, reference to Section 197 Cr.P.C. and drawing analogy of the said provision to Section 19 of the POC Act is highly misplaced.
CC No. 12/2015; Mohd. Nazim Vs. Gopi Chand etc. Page No. 3 of 7 4
5. The most relevant question i.e. "whether any sanction u/s 19 POC Act is required prior to the stage of cognizance such as directing investigation u/s 156(3) Cr.P.C." has been settled by the judgment of the Hon'ble Supreme Court in Anil Kumar & Ors. Vs. M.K. Aiyappa & Anr. reported as (2013) 10 SCC 705. Before reproducing the observation of the Hon'ble Supreme Court in the case cited above, it is imperative to quote Section 19(1) of The Prevention of Corruption Act, 1988 which provides for Sanction for Prosecution. Section 19(1) envisages that:
"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......."
6. In the case of Anil Kumar & Ors. Vs. M.K. Aiyappa & Anr. (supra), the appellants filed a private complaint against the first respondent, a public servant, under Section 200 Cr.P.C. alleging commission of offences punishable under Sections 406, 409, 420, 426, 463, 465, 468, 471, 474 read with Section 120B IPC, 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, 1988 (POC Act). On receipt of this complaint, the Special Judge trying cases under Prevention of corruption Act passed an order referring the matter for investigation to the Deputy Superintendent of Police, Lokayukta, in exercise of his powers under Section 156(3) Cr.P.C. The High Court in a writ petition filed by the first respondent quashed the order passed by the Special Judge as well as the complaint on the ground that the Special Judge could not have taken notice of the private complaint against a public servant unless the same was accompanied by a sanction order under Section 19(1) of the POC Act, irrespective of whether the court was acting at a precognizance stage or the postcognizance stage. Aggrieved by the same, the complainants had preferred appeals in the CC No. 12/2015; Mohd. Nazim Vs. Gopi Chand etc. Page No. 4 of 7 5 Supreme Court. While dismissing the appeals, the Hon'ble Supreme Court held as under:
"Where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, and in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) Cr.P.C. for investigation against a public servant without a valid sanction order under Section 19(1) of the Prevention of Corruption Act, 1988 (POC Act). The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted.
The Special Judge/Magistrate in the present case, has stated no reasons for ordering investigation...........
The word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge under the Prevention of Corruption Act, 1988 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 postcognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 Cr.P.C., the next step to be taken is to follow up under Section 202 Cr.P.C. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre cognizance stage.
A Special Judge for Prevention of Corruption is deemed to be a Magistrate under Section 5(4) of the Prevention of Corruption Act, 1988 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 Cr.P.C. 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) Cr.P.C. 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) Cr.P.C............
The submission by the appellants (complainants) that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) of the POC Act would be rendered otiose, is difficult to accept. Section 19(3) of the POC Act 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, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) CC No. 12/2015; Mohd. Nazim Vs. Gopi Chand etc. Page No. 5 of 7 6 Cr.P.C. Therefore, there is no error in the order passed by the High Court."
Hence, it is not only crystal clear but the dictum of the aforesaid judgment (supra) that requirement of Sanction is a condition precedent for directing investigation u/s 156(3) Cr.P.C. for the offences u/ss 7, 10 and 13 of the Prevention of Corruption Act which in the present case has not been obtained by the complainant.
7. It is pertinent to note that learned counsel for the complainant in the present complaint has also invoked Section 8 of POC Act. He has contended that assuming though not admitting that Sanction u/s 19 POC Act is a prerequisite for invoking Section 7, 10 and 13, Section 19 does not mandate obtaining previous sanction qua commission of offence u/s 8 POC Act. Hence, cognizance of offence punishable u/s 8 POC Act be taken.
8. So far as Section 8 of POC Act is concerned, there is no doubt that no sanction is required u/s 19 POC Act to invoke Section 8 of the POC Act. Section 8 enunciates that;
"Taking gratification, in order, by corrupt or illegal means, to influence public servant. - Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than (three years) but which may extend to (seven years) and shall also be liable to fine."
9. The bare perusal of the complaint reveals that there is not an iota of allegation against the proposed accused persons that any private person attempted to obtain bribe from the complainant so as to CC No. 12/2015; Mohd. Nazim Vs. Gopi Chand etc. Page No. 6 of 7 7 induce them by corrupt or illegal means. Hence, the facts of the case do not attract the provision of Section 8 POC Act.
10. Thus, in the absence of previous sanction of the specified competent authority, this court cannot take notice of the private complaint against the public servants / proposed accused persons for commission of offences punishable u/s 7, 8, 10 and 13 of the POC Act. Therefore, I find no ground to order investigation u/s 156(3) Cr.P.C. or to take cognizance of the present complaint. Complaint is, accordingly, dismissed. File be consigned to Record Room.
Announced and signed in the open Court on 17th February, 2016 (HEMANI MALHOTRA) Special Judge(POC Act)(Central)05, Tis Hazari Courts, Delhi CC No. 12/2015; Mohd. Nazim Vs. Gopi Chand etc. Page No. 7 of 7