Allahabad High Court
Smt. Suneeti Toteja And Others vs State Of U.P. Thru. Addl. Chief. Secy. ... on 16 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- APPLICATION U/S 482 No. - 8057 of 2022 Applicant :- Smt. Suneeti Toteja And Others Opposite Party :- State Of U.P. Thru. Addl. Chief. Secy. Deptt. Of Home U.P. Civil Sectt. Lko .And Another Counsel for Applicant :- Krishana Kumar Singh,Ishan Baghel,Satish Singh Counsel for Opposite Party :- G.A.,Ishan Baghel,Veena Vijayan Rajes Hon'ble Mohd. Faiz Alam Khan,J.
1. Heard Shri Krishana Kumar Singh, learned counsel for the applicants, learned AGA for the State as well as Shri Ishan Baghel, learned counsel appearing for the opposite party no.2.
2. The applicant-accused has preferred the instant application under Section 482 Cr.P.C. requesting for grant of the following prayer:-
"Wherefore it is most respectfully prayed that this Ho'ble Court may kindly be pleased to set aside the summoning order dated 12.07.2022 and may kindly be pleased to quash the charge sheet no. 1/2022 dated 2.07.2022 filed U/s 120-B, 192, 197, 204, 218, 202, 506 IPC against the petitioners in case crime no. 610/2018, P.S.- Aliganj, District- Lucknow and criminal proceeding of case no. 610/2018 (State v. S.S. Ghonkrokta and others) pending in the court of Special CJM (custom), Lucknow."
3. Shri Krishana Kumar Singh, learned counsel for the applicants while drawing the attention of this Court towards the first information report submits that the applicants were not named in the first information report nor in the statement of the informant/victim recorded under Section 161 Cr.P.C. and after many years of the lodging of the first information report, her statement under Section 164 Cr.P.C. was recorded wherein for the very first time the complicity of the instant applicants was surfaced. It is further submitted that even if the allegations as contained in the statement of the informant/victim recorded under Section 164 Cr.P.C. are taken on its face the ingredients of the penal sections under which cognizance has been taken, may not attract and therefore it is not only the Investigating Officer who has committed illegality in submitting the charge sheet against the applicants but the trial court has not considered this aspect of matter while taking cognizance. It is further submitted that the alleged Acts of the applicants are the Acts which were being discharged under the colour of their official duties and therefore the trial court was not in a position to take cognizance without their being any valid sanction under Section 197 of the Cr.P.C. Thus, the taking of cognizance in absence of valid sanction by Magistrate is bad and thus renders all the proceedings of the case pending before the court below as abuse of the process of law and same are required to be quashed.
4. In the last, it is submitted that the Investigating Agency had applied to obtain prosecution sanction with regard to the applicants but the sanction with regard to the applicant no.1 has been refused vide order dated 14.11.2022 passed by the sanctioning authority i.e. Bureau of Indian Standard and with regard to the applicants no.2 and 3, the sanction has still not been granted and the matter appears to be still under the consideration of the sanctioning authority, therefore, the trial court should not have taken cognizance and must have waited for a valid sanction.
5. Learned counsel for the applicants has referred many documents placed on record in order to show that there is no sufficient material available on record to summon the applicants to face trial under those panel sections wherein they have been summoned by the trial court.
6. Shri Ishan Baghel, learned counsel appearing for the opposite party no.2 while referring to the first information report has submitted about the background of the victim/informant and also with regard to her achievements and also referred to her sparkling career which informant/victim was having. It is also highlighted that the illegal advancement of the main accused, namely, S.S. Ghonkrokta was reported by the victim/informant to the Internal Committee constituted for taking care of the sexual assault cases allegedly committed at the work place and a decision was taken by the Internal Committee to lodge the first Information report in the matter and thereafter the first information report pertaining to the instant case was lodged.
7. He further submits that the main accused Dr. S.S. Ghonkrokta has approached the CAT, Delhi against the decisions taken by the Internal Committee through the connivance of the instant applicants specifically applicant no.1 managed to procure an interim stay order as an affidavit was filed by the applicant no.1 before CAT, Delhi in connivance with the main accused, however, subsequently the said order was set aside on a review petition moved by the informant/opposite party no.2. It is also submitted that so far as the issue of sanction of the prosecution is concerned the same could not be taken into cognizance at this stage specially under the proceedings pertaining to Section 482 Cr.P.C. as the order dated 14.11.2022 whereby the prosecution is allegedly not granted with regard to applicant no.1 is not in the knowledge of the victim/opposite party no.2 and having regard to the Office Order No.31/5/05 issued by the Central Vigilance Commission dated 12.05.2005, the sanctioning authority could not sleep over the grant of sanction for a long time and a decision is to be taken within a reasonable period and if no decision is taken then having regard to the law laid down in the Case of Vineet Narayan versus Union of India reported in AIR 1998 SC 889, the sanction shall be deemed to have been granted. Thus no illegality or irregularity has been committed by the trial court while taking cognizance of the offences against the applicants, moreso in the background that alleged acts of the applicants may not come within the purview of duties committed under the colour of their office as they were acting in connivance with the main accused Dr. S.S. Ghonkrokta.
8. Learned AGA on the other hand has also supported the submissions made by learned counsel for the opposite party no.2 and submits that there is no illegality or to say any irregularity in the orders of the trial court whereby the cognizance has been taken and the process has been issued.
9. Having heard learned counsel for the parties and having perused the record, it is evident that before filing the charge sheet the Investigating Agency had applied for procuring sanction from the competent authority and an endorsement in the case diary, which has been summoned today for the purpose of perusal, would reveal that as the prosecution sanction has not been granted by the sanctioning authority within the reasonable period of time an opinion was taken by the Investigating Officer from Assistant Prosecution Officer of Lucknow, who vide his letter dated 30.06.2022 had opined that in view of the law laid down by the Hon'ble Supreme Court in Vineet Narayan' case (supra) if no decision is taken by the competent authority with regard to the sanction for prosecution, then the prosecution may be deemed to have been granted and the charge sheet may be filed. The Investigating Officer acting on this advise filed the chargesheet in this case. Therefore, it is evident that the Investigating Officer of the case was conscious about the pendency of the request of the Investigating Agency with regard to obtaining sanction with regard to the instant applicants. The two orders passed by the trial court of date 12.07.2022 would reveal that the Magistrate has taken cognizance of the offence and by passing a separate detailed order had issued process against the accused persons including the instant applicants.
10. Hon'ble Supreme Court in 'State of Gujrat Vs Afroz Mohammed Hasanfatta' reported in MANU/SC/0139/2019, while considering the obligation of magistrate at the time of issuance of summons to the accused persons while taking cognizance of offences on a police report submitted under section 173 of the Code Of Criminal procedure, formulated following point and answered it as under:-
"While taking cognizance of an offence under Section 190(1) (b) Cr.P.C., whether the court has to record reasons for its satisfaction of sufficient grounds for issuance of summons:-
"21. In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case and whether the materials collected is adequate for supporting the conviction. The court is not required to evaluate the evidence and its merits. The standard to be adopted for summoning the accused under Section 204 Cr.P.C. is not the same at the time of framing the charge. For issuance of summons under Section 204 Cr.P.C., the expression used is "there is sufficient ground for proceeding.."; whereas for framing the charges, the expression used in Sections 240 and 246 IPC is "there is ground for presuming 16 that the accused has committed an offence..". At the stage of taking cognizance of the offence based upon a police report and for issuance of summons under Section 204 Cr.P.C., detailed enquiry regarding the merits and demerits of the case is not required. The fact that after investigation of the case, the police has filed charge sheet along with the materials thereon may be considered as sufficient ground for proceeding for issuance of summons under Section 204 Cr.P.C.
22. In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file."
11. Perusal of the above law would reveal that the Supreme Court has made a distinction between the cognizance taken on a complaint case and the cognizance taken on a police report submitted under Section 173(2) Cr.P.C. and is of the view that the submission of charge sheet is made by the Investigating Officer after investigating the allegations of the first information report and in some cases, the opinion of the Investigating Officer is also weighed by a higher police authority and in some other cases, the opinion of some Prosecuting Officer is also taken, as has been done in the instant case, and thereafter, the Supreme Court had opined that so far as the cognizance taken with regard to the cases on the charge sheet is concerned, the order of the Magistrate whereby the process has been issued, is sufficient indication that judicial mind has been applied
12. Having regard to the submissions made by learned counsel for the rival parties, at this this juncture, moreso, in the background of the settled position of law that meticulous appreciation of evidence is not permissible in jurisdiction under Section 482 Cr.P.C., I am not inclined to quash the proceedings of the instant case pending before the court below. So far as the contention of learned counsel for the parties with regard to the grant or refusal of the prosecution sanction by the sanctioning authority with regard to the applicants is concerned, in this regard a decision could only be taken by the Magistrate or trial court concerned. It appears to be an admitted position that the applicants herein have still not approached the Magistrate with regard to the alleged subsequent development of non-grant of prosecution sanction to the applicant no.1. Had an application been filed before the Magistrate, he might have taken a decision in this regard. It is also to be recalled that sometime the issue of sanction is also dependant on the establishment of factual matrix.
13. Thus, for the reasons mentioned hereinabove, I do not find any substance/merit in the petition, and the same is accordingly dismissed.
14. However, mere dismissal of the instant petition would not preclude the applicants to approach the Magistrate in accordance with law.
15. At this juncture, learned counsel for the applicants submits that the applicants are ready to appear before the trial court for the purpose of obtaining bail and in this regard, a direction be given to the trial court to release the applicants on bail by accepting their personal bond or single sureties. It is further stated that all the penal sections wherein the applicants have been summoned are bailable offences. Suffice is to say that it would always be in the discretion of the trial court to take an appropriate decision with regard to release of the applicants on bail either on personal bond, single surety or two sureties keeping in view the facts and circumstances of the each case and in appropriate cases accused persons may also be released on bail on filing single surety.
Order Date :- 16.11.2022 KR