Punjab-Haryana High Court
Ajay Garg vs State Of Haryana And Others on 22 March, 2012
Crl. Misc. No.M-30529 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No.M-30529 of 2010 (O&M)
Date of Decision: 22.03.2012
Ajay Garg ....Petitioner
Versus
State of Haryana and others ...Respondents
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:- Mr. Girish Agnihotri, Advocate
with Ms. Binay Jeet Sheoran, Advocate
for the petitioner.
Mr. J.S. Rattu, D.A.G., Haryana
for the respondent-State.
Mr. Praveen Bhadu, Advocate
for respondent No.3.
*****
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the
Digest ?
**
NIRMALJIT KAUR, J.
Crl. Misc. No.12978 of 2012
This is an application under Section 482 of the Cr.P.C for placing on record the accompanying additional affidavit of the applicant/petitioner.
Accompanying additional affidavit of the applicant/petitioner is taken on record.
Crl. Misc. Application is, accordingly, disposed of. Crl. Misc. No.M-30529 of 2010 This is a petition under Section 482 of the Cr.P.C praying for quashing of the observations of Special Judge under Prevention of Corruption Act, Hisar vide which, direction has been issued to seek Crl. Misc. No.M-30529 of 2010 (O&M) 2 sanction regarding prosecution of Executive Engineer Ajay Garg under Section 19 of the Prevention of Corruption Act with a further prayer for setting aside the impugned Order dated 13.09.2010 (Annexure P-6) passed by the Additional Sessions Judge, Hisar, vide which, the report of IG/SVB has been rejected and has also rejected the cancellation report submitted by the prosecution with a further prayer for issuance of directions to the respondents to accept the Cancellation Report which was given by IG/SVB, Panchkula.
Learned counsel for the petitioner, while praying for the said relief, raised various contentions. One of the contention raised by learned counsel for the petitioner was that the cancellation report, after due approval by Director General of Police, as well as, the Chief Secretary, was filed before the Special Judge, Hisar. The said cancellation report was wrongly rejected and while ordering further investigation, the Special Judge wrongly directed the Investigating Agency to seek sanction. It was, therefore, stated that while ordering further investigation, the stage for directing the prosecution to seek sanction had yet not arrived and directing to seek sanction will amount to proceeding with pre-determined mind causing prejudice to the petitioner.
Reply has been filed by the State. In the reply filed, it is not disputed that the said cancellation report was approved by the Director General, State Vigilance Bureau, Haryana, Panchkula. It was, however, submitted by the learned counsel for the State, on instructions that the further investigation in pursuance to the impugned order passed by the Special Judge is complete and they are likely to file the challan after seeking sanction.
Heard.
The operative part of the Order dated 13.09.2010 passed by Crl. Misc. No.M-30529 of 2010 (O&M) 3 the Special Judge, Hisar, vide which, the cancellation report was rejected and further investigation was ordered, reads as under :-
" 16. Hence, the report made by R.C. Joval, IG recommending cancellation of the case is without jurisdiction and the same is hereby rejected and I direct DG, SVB, Haryana, Panchkula to reconsider the matter in view of my above said observations and to proceed further with the case from the stage from which R.C. Joval IG took over the investigation of this case, by ignoring the findings of R.C. Joval IG regarding cancellation of the case. It is hoped that further investigation in this case shall be carried out in accordance with law. File be sent back to DG, SVB, Haryana, Panchkula for further necessary action in the matter i.e to seek sanction regarding prosecution of XEN Ajay Garg under Section 19 of the Act. The report be filed as early as possible preferably within three months as the occurrence relates to the year 2008."
From the perusal of the said Order, it is evident that the Special Judge directed the prosecution to take sanction and file report within three months, whereas, the further investigation in pursuance to the said direction was yet to commence.
Hon'ble the Apex Court in the case titled as Abhinandan Jha and others vs. Dinesh Mishra reported as AIR 1968 (SC) 117 had in no uncertain terms held that the Magistrate while directing further investigation under Section 156(3) of the Cr.P.C if not satisfied by final report cannot direct the police to file a charge sheet and held in the said judgment that the formation of an opinion is the final stage in the investigation and the said final stage can only be taken by the police and by no other authority. Para 21 of the said judgment reads as under :-
"21. The question can also be considered from Crl. Misc. No.M-30529 of 2010 (O&M) 4 another point of view. Supposing the police send a report, viz., a charge-sheet, under s. 170 of the Code. As we have already pointed out, the Magistrate is not bound to accept that report, when he considers the matter judicially. But, can he differ from the police and call upon them to submit a final report, under s. 169? In our opinion, the Magistrate has no such power. If he has no such power, in law, it also follows that the Magistrate has no power to direct the police to submit a charge-sheet when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view."
This Court, in the case of Sarwan Singh and others vs. State of Punjab and another reported as 2004 Crl. L.J. 4038 held in para 17 that ;
" 17. Therefore, from the aforesaid legal position, it is clear that the Magistrate has no power either expressly or impliedly under the Code to call upon the police to submit a charge-sheet when police has sent the report to the effect that no case is made out against the accused for sending them for trial."
Similarly, Hon'ble the Supreme Court in the case titled as Union of India vs. Prakash P. Hinduja and another reported as AIR 2003 Supreme Court 2612 has held in paras 13, 14 and 19 as under :-
" 13. The provisions referred to above occurring in Chapter XII of the Code show that detail and elaborate provisions have been made for securing that an investigation takes place regarding an offence Crl. Misc. No.M-30529 of 2010 (O&M) 5 of which information has been given and the same is done in accordance with the provisions of the Code. The manner and the method of conducting the investigation are left entirely to the officer-in-charge of the police station or a subordinate officer deputed by him. A Magistrate has no power to interfere with the same. The formation of the opinion whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to a Magistrate or not as contemplated by Ss. 169 and 170 is to be that of the officer-in-charge of the police station and a Magistrate has absolutely no role to play at this stage. Similarly, after completion of the investigation while making a report to the Magistrate under s. 173, the requisite details have to be submitted by the officer- in-charge of the police station without any kind of interference or direction of a Magistrate and this will include a report regarding the fact whether any offence appears to have been committed and if so, by whom, as provided by C1. (d) of sub-section (2)(i) of this section. These provisions will also be applicable in cases under Prevention of Corruption Act, 1947 by virtue of S. 7-A thereof and Prevention of Corruption Act, 1988 by virtue of S.22 thereof.
14. The Magistrate is no doubt not bound to accept a final report (sometimes called as closer report) submitted by the police and if he feels that the evidence and material collected during investigation justifies prosecution of the accused, he may not accept the final report and take cognizance of the offence and summon the accused but this does not mean that he would be interfering with the investigation as such. He would be doing so in exercise of powers conferred by S.190, Cr.P.C. The statutory provisions are, therefore, absolutely clear that the Court cannot interfere with the investigation.
15, 16, 17, 18. xxx xxx xxx Crl. Misc. No.M-30529 of 2010 (O&M) 6
19. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer-in-charge of police station in Court under S. 173(2), Cr.P.C., this field being exclusively reserved for the investigating agency."
Thus, it is a well settled proposition of law that though the Magistrate has the power to take cognizance of the offence himself under Section 190(1)(b) of the Code, even if the police report is to the effect that no case is made out against the accused, the Magistrate has no power to issue direction to the investigating agency/police to file challan in the Court. The Investigating Officer is the master of the investigation.
Applying the test in the present case, the very direction by the Special Judge for further investigation and at the same time directing the Investigating Agency to seek sanction regarding prosecution of XEN Ajay Garg under Section 19 of the Act is illegal and without jurisdiction and amounts to a direction to the prosecution agency to file the charge sheet.
While ordering further investigation, the stage for directing the prosecution to seek sanction had yet not arrived. Hence, the Order issuing direction for seeking sanction was pre-mature at this stage. The matter had only been referred for further investigation and directing to seek sanction amounts to proceeding with pre-determined mind and also conveys a message to the prosecution agency to file the challan/charge sheet which the Magistrate is not empowered to do. Thus, any further investigation in pursuance to such an Order is biased and vitiated and therefore cannot be taken into consideration.
In view of the above discussion, the Order dated 13.09.2010 Crl. Misc. No.M-30529 of 2010 (O&M) 7 (Annexure P-6) passed by the Additional Sessions Judge, Hisar is set aside and the matter is remanded back to the Special Judge to pass a fresh order in accordance with law.
(NIRMALJIT KAUR) 22.03.2012 JUDGE gurpreet