Gujarat High Court
Vipul Mohinder Paul Mittra vs State Of Gujarat on 1 September, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3688 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
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 No
interpretation of the Constitution of India or any order made
thereunder ?
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VIPUL MOHINDER PAUL MITTRA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR NAVIN PAHWA SENIOR ADVOCATE WITH MR.NANDISH H
THACKAR(7008) for the Applicant(s) No. 1
MR RC KODEKAR(1395) for the Respondent(s) No. 2
MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 01/09/2021
ORAL JUDGMENT
1. Heard learned Senior Advocate Shri Navin Pahwa with learned Advocate Shri Nandish H. Thackar on behalf of the applicant, learned Additional Public Prosecutor Ms. Maithili D. Mehta on behalf of respondent no.1-State and learned Special Public Prosecutor Shri R.C. Page 1 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 Kodekar on behalf of respondent no.2- Central Bureau of Investigation.
2. Issue Rule. Learned Additional Public Prosecutor as well as learned Special Public Prosecutor waive service of rule for the respective respondents.
3. With the consent of parties, the present application is taken up for final hearing.
4. By way of this application, the applicant has sought for quashing and setting aside of impugned order passed by the learned Special Judge, (C.B.I) dated 14.09.2016 in RC No. 27 (A)/ 2000-GNR whereby the second closure report filed by the C.B.I is set aside.
5. Brief facts leading to filing of the present application being that respondent no.2- CBI had registered an FIR being RC No.27 (A)/ 2002- GNR against five persons namely (1) Shri N.R. Pai, the then Chief Executive Engineer, Kandla Port Trust ( hereinafter referred to as 'KPT'), Gandhidham, (2) Shri B.P. Asnani, Senior Stores Officer, KPT, Gandhidham, (3) Shri Mohan Ashwani, the then Assistant Clerk, KPT, Gandhidham, (4) Shri M.L. Belani, the then Sub- Engineer, KPT, Gandhidham and (5) M/s Hari Agency, Gandhidham.
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R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021
6. The applicant was not named as an accused in the FIR. The allegation as levelled against accused in the FIR being that the accused had colluded with each other and had caused loss of more than Rs. 6 lacs to KPT and corresponding gain to themselves in the matter of purchase of "Allcreel Blankets" during the period between 1998-99. The FIR was alleging commission of offence punishable under Section 120-B read with Section 420 of the Indian Penal Code and offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1983. It appears that after the FIR had been registered, the investigation had been entrusted to one Shri AGL Kaul, Police Inspector for investigation and whereas investigation had thereafter been taken up by one Shri R.K. Das, Police Inspector, C.B.I. It further appears that Investigating Officer, CBI had submitted final report under Section 173 of the Code of Criminal Procedure,1973 in connection with the FIR referred to hereinabove recommending closure of the case, against accused named in the FIR on the ground that there was no malafide, misconduct or serious financial irregularities in the purchase of the item concerned at the instance of the accused. It further appears that the said report dated 26.10.2004, had not been accepted by the learned Special Judge, CBI Court, No. 3, Mirzapur, Ahmedabad and whereas the CBI was directed to carry out further investigation in the case and submit report under Section 173 of the Page 3 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 Criminal Procedure Code, afresh. It further appears that pursuant to the order of the learned Special Judge dated 09.08.2010, referred to herein- above, the CBI through one Mayur Joshi, Police Inspector had conducted the investigation with regard to the FIR and whereas the said Investigating Officer had submitted report under Section 173 of the Code of Criminal Procedure requesting the Court to close the case. It was mentioned in the said report that the 'CBI maintains its earlier stand that, this case is required to be closed due to lack of sufficient evidence to attribute criminality to the accused persons' . The report dated ----04.2012 ( referred to as dated 28.06.2011 in the order impugned, was placed before the concerned Court and whereas vide the impugned order, the learned Special Judge CBI Court No. 9, at Mirzapur Ahmedabad had been pleased to reject the closure report and whereas it was further directed to file afresh final report in accordance with law against all accused.
7. It appears that after the present application had been preferred, this Court while issuing notice to the respondents had granted ad interim relief in terms of staying execution, implementation and operation of impugned order dated 14.09.2016 passed by the learned Special Judge, CBI and whereas it appears that the said position is continued till date.
8. Learned Senior Advocate Shri Navin Pahwa on behalf of the Page 4 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 applicant has assailed the impugned order by submitting that the learned Trial Court has vide the impugned order virtually directed the Investigating Officer to file report under Section 173 of the Code of Criminal Procedure against the applicant after obtaining sanction from the concerned Department. That by doing so, according to the learned Senior Advocate for the applicant, the learned Special Judge has made the exercise of investigation, redundant. It is submitted by learned Senior Advocate that by virtue of the impugned order, the learned Court has placed the Investigating Officer under a direction to obtain sanction under Section 19 of the Prevention of Corruption Act, which virtually presupposes that charge-sheet would be filed against the present applicant. It is submitted by learned Senior Advocate that issuance of such a direction is almost amounting to usurping the jurisdiction of the Investigating Officer and rendering the process of investigation virtually redundant. Learned Senior Advocate has further submitted that such a direction by the learned Judge is an impermissible procedure and whereas the Supreme Court in various judgements has laid down the law that the Magistrate cannot usurp the jurisdiction of the police and direct them to file charge-sheet or obtain sanction. Learned Senior Advocate in support of his challenge to the impugned order has relied upon judgement of the Hon'ble Supreme Court in case of (1) Mansukhlal Vitthaldas Chauhan v. State of Gujarat reported in 1998(1) GLH ( SC) 218, (2) in case of Abhinandan Jha Roopchand Lal vs. Page 5 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 Dinesh Mishra, State of Bihar reported in AIR 1968 SC 117 and (3) in case of Vasanti Dubey v. State of Madhya Pradesh reported in 2012(2) SCC 731.
9. Learned Senior Advocate has further submitted that while in the first order rejecting the closure report dated 09.08.2010, there was no reference to any investigation being required against the role of the present applicant and whereas the learned Judge in the said judgement inter alia observed that the applicant appears to have been misled by the notes put up by his subordinates.
9.1 Learned Senior Advocate further submits that as such the reference to the present applicant, as found in the order impugned is with regard to the finding by the learned Court that the applicant might have knowledge that the involvement of Labour Trustees was not in accordance with legally prescribed procedure and yet the applicant allowed the same to happen.
10. Further reference to the petitioner is with regard to selection of sample being directed to be done by the independent agency being Ahmedabad Textile Industry Research Association (ATIRA) in spite of the fact that there was no provision of such sample being tested from ATIRA in the notice inviting tenders. Learned Senior Advocate in this regard submits that requirement of the samples being tested by independent agency like Page 6 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 ATIRA even in absence of any rules permitting the same, was a step taken by the applicant to ensure that the best product is bought by the KPT and whereas in absence of any oblique motive being alleged against the applicant, that by itself ought not to be the ground for which an investigation be conducted against the applicant.
10.1. Learned Senior Advocate therefore has submitted to this Court that the learned Court having committed a grave error in not accepting the closure report and virtually directing the Investigating Officer, CBI to file charge-sheet against the present applicant after obtaining sanction, requires to be interfered with by this Court.
11. As against the same, learned Special Public Prosecutor Shri RC Kodekar has supported the decision of the learned Special Judge and has submitted that no error much less any error of law has been committed by the learned Judge which requires interference by this Court. Learned Special Public Prosecutor submits that based upon confidential information, an FIR has been registered for allegedly causing loss to KPT and corresponding gain to the accused in the matter of purchase of " Allcreel Blankets" and whereas learned Special Judge was completely justified when the learned Court does not accept the closure report filed by the CBI more particularly against the present applicant and directs further investigation since according to the learned Court there was prima facie material against the Page 7 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 present applicant. Learned Special Public Prosecutor has referred to observations made in the impugned order insofar as the applicant might be knowing about the Labour Trustees being included in the process which was against the prescribed procedure and the applicant having sent the sample to ATIRA for testing. Based upon the same, it is sought to be argued by the learned Special Public Prosecutor that since the learned Judge had found prima facie material, therefor the order impugned order may not require any interference by this Court.
12. Heard learned Advocates for the parties and perused the record.
13. This Court upon a close scrutiny of the record including the complaint as well as the first order rejecting the closure report by the Special Judge dated 09.08.2010 as well as the second closure report and the impugned order rejecting the closure report had found an inconsistency for which the Investigating Officer, CBI was called upon to file affidavit explaining the said circumstance.
13.1 With regard to the above, it is clarified that in the FIR, the allegations were against five persons who were working with the KPT at the relevant point of time. It would be pertinent to mention here that the present applicant at the relevant point of time was working as Deputy Chairman of Page 8 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 the KPT and whereas as noted hereinabove, the applicant had not been named in the complaint. In the first order rejecting the closure report the learned Special Court has scrutinized the aspects of investigation in detail and insofar as the present applicant is concerned, has inter alia observed 'it is true that Shri Vipul Mitra also sometimes acting in the capacity of the Deputy Chairman and sometimes in the capacity of Chairman put up inconsistent notes and appears to have been misled by the notes put up by his subordinates'. Further the learned Court has observed at paragraph no.13 that ".....the conspiracy hatched amongst all the five accused to cheat and to cause financial loss to the KPT was prima facie established." Further in the operative portion of the order the Court notes that the closure report was with regard to five accused persons named in the FIR. Thus it becomes clear that upto that stage the complaint was against five accused and whereas second the closure report dated ---04/2012 has referred that the applicant is arraigned as accused no.6. A perusal of the closure report does not reveal at all as to under what circumstance the applicant had been named as accused except for mentioning that name of the applicant had come up during investigation.
13.2. Since an incongruous situation appears to have arisen inasmuch the applicant not being named in the FIR and no observations being made against the applicant in the first order rejecting the closure dated 29.08.2010, yet applicant had been arraigned as an accused and subsequently the Page 9 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 Investigating Officer recommending to close the case on the ground of lack of sufficient evidence to attribute criminality. To further explain since the applicant was not named in the complaint and even in the first closure report the applicant had not been named as accused which had been rejected by the Court and no observations being made by the Court at that stage and the Investigating Officer had been directed to proceed further. Inspite of this position in the second closure report it appears that the applicant had been named as accused which pre-supposes that the Investigating Officer had found out some prima facie material against the present applicant which required inclusion of name of applicant as accused but later on the Investigating Officer himself recommends closure of the case citing lack of material.
13.3. This Court had in view of the said position being noticed called upon the respondent no.2, CBI vide order dated 29.06.2021 to file affidavit clarifying two aspects namely (1) under what circumstance the name of the present applicant came to be included in the array of accused as accused no.6 and what procedure was followed by the CBI while arraigning the applicant as accused no.6 and (2) the status of the criminal case after the closure report had been rejected by the learned CBI Court impugned before this Court. In response to the same, the Investigating Officer, CBI has filed an affidavit dated 05.07.2021 and whereas it is attempted to be submitted Page 10 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 that the applicant was named as accused before the CBI Court rejecting the first closure report. It is further attempted to be submitted that the CBI Court vide order dated 09.08.2010 rejecting the first closure report had discussed the role of the applicant and directed further investigation. It is further mentioned that the CBI had undertaken further investigation pursuant to order dated 09.08.2010 and the role of the present applicant was also investigated. As far as the second query of the Court was concerned, it is mentioned that since the Court vide the impugned order had directed to submit final report under Section 173 of the Code of Criminal Procedure after obtaining the sanction, the CBI had forwarded the report along with relevant records to the competent authority i.e the Ministry of Shipping, New Delhi on 28.11.2017 for consideration of granting sanction to prosecute the present applicant.
14. In the considered opinion perusing the affidavit filed by the respondent no.2 and upon hearing the learned Special Public Prosecutor, this Court is of the opinion that there is complete lack of clarity as to how the present applicant had been arraigned as an accused in the first place. Reliance is placed by the respondent no.2 on the order dated 09.08.2010 whereby the first closure by the CBI was rejected and whereas in the considered opinion of this Court there is nothing in the said order to show that the respondent no.2 was under a direction or obligation to investigate Page 11 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 the role of the present applicant. The said order infact as referred to herein- above notes that the applicant might have been misled by his subordinates and whereas the learned CBI Court at paragraph 14, as referred to herein- above clearly observed that there was prima facie case against all the five accused even in the operative portion the CBI Court had rejected the closure report against the five accused named in the FIR. 14.1. It appears that at that stage the CBI Court was very clear about the allegation being made against five accused named in the FIR and the closure report also being against the said five accused, which had not been accepted by the Court. That there was no reference to any act on the part of the present applicant which would have brought the present applicant under the ambit of the investigation and further be brought in the array of accused in the said order dated 09.08.2010.
14.2 While it is true that since the learned Special Judge vide order dated 09.08.2010 had directed to carry out further investigation with regard to FIR while rejecting closure report under Section 173 of the Code of Criminal Procedure, and whereas it was always open for the Investigating Officer to have filed charge-sheet against accused not named in the FIR at all, yet this Court is delving deep into its issue since there appears to be a lack of clarity on how the applicant came to be arraigned as accused in the first place. Page 12 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022
R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 15. From the record placed before this Court, it appears that the applicant was arraigned as accused after order dated 09.08.2010 and
whereas it also appears that while the applicant was named as an accused , during the course of investigation, on the conclusion of the investigation, the Investigating Officer has recommended closure of the investigation against all the accused including the present applicant. Since there is no material in the closure report to show as to why the petitioner was arraigned as accused and since in the closure report itself the Investigating Officer has noted that there is lack of sufficient evidence to attribute criminality to the accused persons therefore it clearly appears that the applicant had been joined as an accused erroneously at the stage of second closure report, more particularly, without there being any material against the applicant. It clearly appears to this Court that on account of references made by the learned CBI Court vide impugned order dated 09.08.2010 with regard to the applicant under some erroneous belief, the applicant had been named as accused and later since no material was found inter alia against the applicant, the closure report was filed.
16. Insofar as the submissions of learned Senior Advocate Shri Pahwa for the applicant, that the learned CBI Court vide order dated 14.09.2016 i.e. the impugned order ought not to have directed the CBI to obtain sanction Page 13 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 and that it was virtually a direction to the CBI to file charge-sheet against the present applicant, from the additional affidavit filed by respondent no.2 it clearly appears that the apprehension of the present applicant was well founded inasmuch it is stated at para 5 as thus:
5. That vide order dated 14.09.2016, the Special Judge again did not accept recommendation (Final/Closure Report) of CBI to close the case agaisnt the accused in the case and directed to submit a fresh final report in accordance with law against all 5 FIR named accused, as well as the Applicant ( which was not FIR named accused), after obtaining sanction under Section 19 of the PC Act, 1988 as he is still in service. "
(emphasis supplied) 16.1 Thus it appears that the CBI has taken observation/direction at paragraph 11 of the order dated 14.09.2016 as mandatory and from the affidavit in reply quoted hereinabove, it clearly appears that an application for grant of sanction as regards the present applicant has already been sent to the concerned authority. Thus even without considering whether there appears to be any material charge-sheet against the applicant, the CBI has sought for sanction to prosecute the present applicant which action is virtually mirroring the apprehension raised by learned Senior Advocate Shri Pahwa in his arguments.
17. In this regard, this Court feels it appropriate to refer the decision of Hon'ble Supreme Court in case of Abhinandan Jha Roopchand Lal vs. Dinesh Mishra, State of Bihar reported in AIR 1968 SC 117 particularly Page 14 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 para no. 15, 16 and 17 for the purpose of better appreciation:
"15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under s. 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case in our opinion the Magistrate will have ample jurisdiction to give directions to the police, under s. 1 5 6 ( 3 ), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under s. 156(3). The police, after such further investigation, may submit a charge-sheet, or,, again submit a final report, depending upon the further investigation made by them. If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he, can take cognizance of the offence under s. 190(1) (c), notwithstanding the contrary opinion of the police, expressed in the final report.
16. In this connection, the provisions of S. 169 of the Code, are relevant. They specifically provide that even though, on investigation, a police officer, or other investigating officer, is of the opinion that there is no case for proceeding against the accused, he is bound, While releasing the accused,, to take a bond from him to appear, 'If and. when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating officer, and judicially takes a view different from the police.
17. We have to approach the, question, arising for consideration in this case, in the light of the circumstances pointed out above. We have, already referred to the scheme of Chapter XXIV, as well as the observations of this Court in Rishbud and Inder Singh's Case(1) that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is 'left to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack; nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of tile police, to take cognizance, under S. 190(1)
(c) of the Code. That provision, in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be in- voked even where persons individually aggrieved are unwilling or unable to Page 15 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 prosecute. or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence. not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under s. 190(1) (c), on the ground that, after having due regard to the final report and the police records placed before him, be has reason to suspect that an offence has been committed. Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to, place the accused for trial, is that of the officer in-charge of the police station and that opinion determines whether the report is to be under s. 170, being a 'charge- sheet', or under S. 169, 'a final report'. It is no (1) [1955]1 S.C.R. 1150. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet, because, the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. Thai will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report, either under s. 169, or under s. 170, depending upon the nature of the decision. Such a function has been left to the police, under the Code."
17.1. The Hon'ble Supreme Court in the above referred judgement has clearly defined the powers of a Magistrate with regard to accepting a final report ( closure report) by the Investigating Officer. That while it is open for the Magistrate to give direction to the police to make further investigation, the Magistrate cannot direct the Police to submit a charge- sheet since as per the dictum of the Supreme Court whether to file charge- sheet or not would depend upon the opinion formed by the police and whereas the Magistrate cannot compel to the police to form a particular opinion on investigation since the same would be encroaching on the sphere of the police. In the instant case the impugned judgement clearly appears to Page 16 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 be erroneous since the learned Judge has directed insofar as the present applicant to submit a report under Section 173 of the Code of Criminal Procedure after obtaining sanction for prosecution. By giving such direction, the learned Jduge was clearly directing the Investigating Officer to form an opinion for filing a charge-sheet against the present applicant which was beyond the powers available to the learned Special Court as per the direction of the Supreme Court. The above position has been reiterated by Hon'ble Supreme Court in case of Mansukhbhai Vitthaldas Chauhan V. State of Gujarat reported in 1997 (7) SCC 622 and in case of Vasanti Dubey v. State of Madhya Pradesh reported in 2012(2) SCC 731. Relevant observations of the Hon'ble Supreme Court in both the judgments are quoted for benefit.
"19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuie 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 decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If 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 had 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
33. The High Court put the Secretary in a piquant situation. While that Act gave him the discretion to sanction or not to sanction the prosecution of the appellant, the judgment gave him no choice except to sanction the prosecution as any other decision would have exposed him to action in contempt for not obeying the mandamus issued by the High Court. The High Court assumed that role of the sanctioning authority, considered the whole Page 17 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 matter, formed an opinion that it was a fit case in which sanction should be granted and because it itself could not grant sanction under Section 6 of the Act, it directed the Secretary to sanction the prosecution so that the sanction order may be created to be an order passed by the Secretary and not that of the High Court. This is a classic case where a Brand name is changed to give a new colour to the package without changing the contents thereof. In these circumstances the sanctions order cannot but be held to be wholly erroneous having been passed mechanically at the instance of the High Court."
"19. The instant matter is one such example and is one step ahead wherein the Special Judge was confronted with yet another legal impediment of lack of sanction for prosecution giving rise to a peculiar situation when he noticed and recorded that he could not proceed in the matter under the Prevention of Corruption Act without sanction for prosecution, but in spite of this he directed to obtain sanction, ordered for reinvestigation and consequently refused to accept closure report.
20. Since the Special Judge in the instant matter refused to accept the closure report dated 18.05.2004 without any enquiry or reason why he refused to accept it which was submitted by the Special Police Establishment, Lokayukta Office, Jabalpur after reinvestigation for which reasons had been assigned and there was also lack of sanction for prosecution against the appellant which was necessary for launching prosecution under the Prevention of Corruption Act, we deem it just and appropriate to hold that the Special Judge clearly committed error of jurisdiction by directing reinvestigation of the matter practically for the third time in spite of his noticing that sanction for prosecution was also lacking, apart from the fact that the Special Police Establishment, Lokayukta Office, after reinvestigation had given its report why the matter was not fit to be proceeded with.
21. We are therefore of the considered view that the Special Judge in the wake of all these legal flaws as also the fact that the Special Judge under the circumstance was not competent to proceed in the matter without sanction for prosecution, could not have ordered for reinvestigation of the case for the third time by refusing to accept closure report dated 18.05.2004. This amounts to sheer abuse of the process of law resulting into vexatious proceeding and harassment of the appellant for more than 10 years without discussing any reason why he disagreed with the report of the Lokayukta and consequently the closure report which would have emerged if the Special Judge had carefully proceeded in accordance with the procedure enumerated for initiation of proceeding under the Code of Criminal Procedure."
17.2 From the perusal of the judgements more particularly the quoted portion, the Supreme Court has inter alia held that sanction for prosecution Page 18 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 is granted by sanctioning authority upon the facts of the case as also the material and evidence collected during investigation and whereas the sanctioning authority has to apply its own mind independently, that the authority is granted the discretion to grant sanction and such discretion n should not be affected by any extraneous consideration. Furthermore the Hon'ble Supreme Court in the judgements quoted hereinabove as well as those referred to in the quoted portion has clearly laid down a direction that there is no power implied or expressed in the Code of Criminal Procedure which empowers a Magistrate to direct the Police to submit a charge-sheet under Section 169 of Cr.P.C. Further while in case of a report the Magistrate may or may not accept the report and whereas the Magistrate may take suitable action in accordance with law but the Magistrate cannot impinge upon the jurisdiction of the Police to change there view and file charge- sheet.
18. In the instant case the direction by the learned Judge clearly appears to be erroneous and against settled position of law inasmuch the learned Judge has directed the Investigating Officer to obtain sanction from the concerned Department and as referred to herein-above the CBI has forwarded the report for grant of sanction as noted from the additional affidavit by the CBI.
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19. Thus it clearly appears that the impugned order passed by the learned Judge rejecting closure report, suffers from legal infirmities inasmuch as the said order imposes direction upon the Investigating Officer to file charge-sheet against the present applicant, which according to the Hon'ble Supreme Court would be against the provisions of the Code of Criminal Procedure which empowers the Investigating Officer to form an opinion as to charge-sheet is to be filed or not. Furthermore the impugned order virtually directs the Investigating Officer as well as the appropriate authority to obtain/grant a sanction to prosecute the present applicant again is an erroneous direction and against the law laid down in the Hon'ble Supreme Court in this regard inasmuch as since such a direction takes away the power of the sanctioning authority to take an independent position after applying, its mind upon the material and evidence collected as to whether prosecution would be sanctioned or not.
20. Apart from the infirmities suffered by the impugned order, this Court also notes that insofar as the present applicant there is no specific discussion or findings by the learned Judge as to why the Investigating Officer ought to have investigated the role of the applicant.
21. In view of the discussions, observations and findings recorded by the Court hereinabove, this Court is of the considered opinion that the Page 20 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022 R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021 impugned order dated 14.09.2016 passed by the learned Special Judge, CBI Court No.9, Mirzapur in Closure Report No. 2 of 2012 in RC No. 27 (A)/ 2000-GNR is unsustainable and therefore the same is quashed and set aside qua the present applicant. The application therefore succeeds. Rule is made absolute to the above extent.
(NIKHIL S. KARIEL,J) NIRU Page 21 of 21 Downloaded on : Sun Jan 16 11:35:36 IST 2022