Chattisgarh High Court
G. R. Sakre vs State Of Chhattisgarh on 7 September, 2021
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 29-07-2021
Pronounced on 07-09-2021
CRMP No. 1097 of 2015
1. G. R. Sakre S/o Late P. T. Sakre Aged About 60 Years Presently
Working As Assistant Engineer, Chhattisgarh Rural Road
Development Agency, P.I.U. Surajpur, Distt. Surajpur Chhattisgarh
2. R. C. Soni S/o Late Ramadhar Soni Aged About 57 Years Presently
Working As Assistant Engineer, Chhattisgarh Rural Road
Development Agency, P. I. U. Baikunthpur Distt. Korea Chhattisgarh
---- Applicants
Versus
1. State Of Chhattisgarh Through The District Magistrate Distt. Surajpur
Chhattisgarh
2. Veerendra Pandey S/o Late Brij Bihari Pandey Aged About 68 Years
R/o 31/666, New Shanti Nagar, Near Disha College 4th House, 4th
Street, Raipur Chhattisgarh
---- Respondents
For Applicants : Shri N. Naha Roy, Advocate For State : Shri G.I. Sharan, Government Advocate For Respondent No.2: Shri Maneesh Sharma, Shri Pragalbh Sharma, Advocates Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. ORDER
1. The applicants have challenged the order dated 05.11.2015 passed by learned Chief Judicial Magitrate in Criminal Case CA No. 3479/2015 (Veerendra Pandey vs M/s Ramavatar Agrawal Road Construction Pvt. Ltd. and Others) by which the learned Chief Judicial Magistrate has allowed the application filed by the complainant/respondent No. 2 under Section 156(3) Cr.P.C. and directed the police station In-charge Surajpur to register FIR under Sections 420, 467, 468, 409, 471, 477-A IPC read with Section 34, 120B IPC against the accused M/s Ramavatar Agrawal Road Construction Pvt. Ltd., with directors 'Shri Ramavtar Agrawal, Shri Bajrang lal Agrawal, Shri Pawan Kumar Agrawal, Shri Satyapal Agrawal, Smt. Premlata Devi, Smt. Shashi Devi and Smt. Saroj Devi,' 2 Shri U.P. Tiwari, Executive Engineer, Shri B.P. Singh, Executive Engineer, Shri K.S. Bhandari, Executive Engineer, Shri R.D. Jain, Executive Engineer, Shri D.K. Bhumerkar, Executive Engineer, Shri G.R. Sakare, Assistant Engineer, Shri K.K. Sahu, Sub-engineer, Shri R.C. Soni, Sub-engineer, Shri Harendra Singh, consultant, Shri Abhiram Sharma, consultant, Shri P.C. Singh, consultant, Shri Sanjay Kumra Sahu, consultant, Shri Navdip Chandra Ghosh, consultant, Shri Arun Kumar, consultant and unnamed then Superintendent Engineer, Surajpur, Shri Rohit Yadav, then Collector, Surajpur and directed that the order be complied within 7 days and thereafter the learned Chief Judical Magistrate has directed to fix the case on 13.11.2015 for submission of copy of FIR.
2. The brief facts projected by the applicants are that the complainant/respondent No. 2 filed complaint on 08.07.2015 against the applicants and 25 other accused persons under Sections 420, 467, 468, 409, 471, 477-A IPC read with Section 34, 120B IPC mainly contenting that complainant is an Ex- President of Chattisgarh Finance Corporation and working as social activist. M/s Ramavatar Agrawal was alloted tender for construction of Pradhan Mantri Gram Sadak Yojna District Surajpur vide tender accepting order dated 26.04.2008. The value of contract was Rs.1465.40 Lakhs. It has been contended that the contractor submitted forged bill of Bitumin Emulsion and received huge amount. He has also submitted details of the bill. As per the complaint, the contractor has not used these materials and submitted forged bills, therefore, committed offence as mentioned in the complaint.
3. It has also been contended that by the complainant that the public servants without discharging their responsibility by verifying the same has misused their post and also committed the breach of trust, involved in criminal conspiracy, by releasing the payment treating the bill as true and correct. There is, prima facie, evidence available on record that the contractor and public servants have committed criminal offence and have caused loss to the exchequer. He would submit that against the applicant and other accused persons offence under section 420, 467, 468, 409, 471, 477-A IPC read with Section 3 34, 120B IPC should be registered and police directed to investigate the matter and submit final report before the court for further trial of the case.
4. The complainant has submitted his affidavit on 31.08.2015 before the learned Chief Judaical Magistrate, on the same date, counsel for the applicant -M/s Ramavtar Agrawal Construction company submitted reply to the complaint. Learned Chief Judicial Magistrate as per the provisions of Section 156(3) of the Cr.P.C. has observed that since the complaint has not been registered, therefore, there is no occasion for the accused to appear before the Court and to make submission. Thereafter, the case was fixed for 21.09.2015. On 21.09.2015, the matter could not be heard and adjourned to 09.10.2012. On 19.10.2015, arguments were heard and case was fixed for order on 05.11.2015. Considering the materials placed on record learned Chief Judicial Magistrate has passed the following orders:-
"vr% fopkjksijkar ifjoknh dh vksj ls is'k vkosnu varxZr /kkjk 156¼3½ n0iz0la0 dk Lohdkj fd;k tkdj Fkkuk izHkkjh lwjtiqj dks Kkiu Hkstdj vkjksihx.k Jh jkekorkj vxzoky firk Jh lR;iky vxzoky] Jh ctjax yky vxzoky firk Jh lR;iky vxzoky] Jh iou vxzoky firk Jh lR;iky vxzoky] Jh lR;iky vxzoky firk Jh dqnkey vxzoky] Jherh iszeyrk nsoh ifr Jh dqnkey vxzoky] Jherh 'k'kh nsoh ifr Jh iou dqekj vxzoky] Jherh ljkst nsoh vxzoky ifr Jh jkekorkj vxzoky] Jh ;w +ih + frokjh] Jh ch-ih- flag] Jh ds-,l- HkaMkjh] Jh vkj-Mh- tSu] Jh Mh +ds +Hkqejsdj] Jh th +vkj +lkdjs] Jh ds +ds +lkgw] Jh vkj +lh +lksuh] Jh gjsUnz flag] Jh vfHkjke 'kekZ] Jh ih +lh +flag] Jh lat; dqekj lkg] Jh uonhi pUnz ?kks"k] Jh v:u dqekj] ds fo:) Hkk0na0la0 dh /kkjk 420] 467] 468] 409] 471] 477 ¼d½ lgifBr 34 ,oa /kkjk 120ch dk vijk/k izFke n`"V;k gksuk ik;s tkus ds vk/kkj ij vkjksihx.k ds fo:) vDr /kkjk dk vijk/k iathc) dj izFke lwpuk i= ys[kc) fd;k tkdj izdj.k fof/kor vUos"k.k iw.kZ dj bl U;k;ky; esa vafre izfrosnu izLrqr djus gsrq vknsf'kr fd;k tkrk gS A izdj.k esa Fkkuk izHkkjh dks bl vkns'k ds }kjk ;g Hkh Li"V :i ls funsZf'kr fd;k tkrk gS fd izdj.k dh foospuk ds nkSjku ;fn ukfer vkjksihx.k ds vfrfjDr vU; fdlh Hkh O;fDr;ksa ds fo:) dksbZ lk{; iz'uxr vijk/k ds laca/k esa izkIr gksrk gS rks os muds fo:) Hkh dk;Zokgh dj ldrs gSaA izdj.k esa Fkkuk izHkkjh lwjtiqj dks Kkiu ds lkFk ifjokn i= izfr ds lkFk Hksth tk;sA izdj.k esa lacaf/kr Fkkuk izHkkjh dks izsf"kr Kkiu esa bl ckr dk Li"V :i ls mYys[k fd;k tkos fd Fkkuk izHkkjh ds }kjk Kkiu izkfIr ds 07 fnol ds Hkhrj vko';d :i ls vkns'kkuqlkj vijk/k iathc) dj /kkjk 157 na0iz0la0 ds izko/kkuksa dk ikyu vko';d :i ls djsA izdj.k izFke lwpuk fjiksVZ dh izfrfyfi izLrqr djus gsrq fu;r fd;k tkrk gSA fnukad 13@11@2015"4
5. The applicants have filed the present Cr.M.P. challenging the said order before this Court. The learned counsel for the applicants would submit that the applicants are working as Assistant Engineer in Chhattisgarh Rural Road Development Agency at the relevant time. Learned Chief Judicial Magistrate while issuing the direction to the concerned police utterly failed to consider that majority of the accused persons including present applicants are public servants having given protection under Section 197 Cr.P.C. therefore, without prior permission of the appropriate Government, filing of the complaint is not maintainable and the complaint is liable to be quashed and should have been dismissed on this count alone by learned Chief Judicial Magistrate. It has also been further contended that learned Chief Judicial Magistrate after passing of the order has become functus officio, therefore he cannot issue any instruction on 05.11.2015 to concerned Station House Officer to register FIR and submit copy of the report within 7 days by 13.12.2015. Such instructions were misconceived and amounts to exceeding its jurisdiction as well as scope of Section 156(3) Cr.P.C. He would further submit that the registration of FIR is nothing but an abuse of process of law, therefore, liable to be quashed.
6. The State has filed their return in which they have stated that the learned Court below after perusing and examining the evidence, statements, documents, material on record produced before it and arrived at the conclusion in its order which are legal, justified and not liable to be interfered by this Court and would submit that the present Cr.M.P. be dismissed.
7. I have heard learned counsel for the applicants, learned State as well as respondent No.2 and perused the records appended with the writ petition.
8. The point required to be determined by this Court is whether the order directing investigation under Section 156(3) Cr.P.C. can be passed in relation to public servant in absence of valid sanction?
9. Before adverting to legal provisions, it is necessary for this Court to examine the relevant provisions of Cr.P.C., under Section 2(c), 5 Section 2(d), Section 156, Section 190, Section 197 of the Cr.P.C. and Section 21 of the IPC.
"The Code Of Criminal Procedure, 1973:-
2(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;
2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
156. Police officer's 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.
190. Cognizance of offences by Magistrates:-
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.
197. Prosecution of Judges and public servants:-
6(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 1 affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.
(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.
(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted.
(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any 7 cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.] (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
Section 21 of the IPC defines 'Public Servant' as below:-
"21. "Public servant".--The words "public servant" denote a person falling under any of the descriptions hereinafter following; namely:-- 23 [***] (Second) --Every Commissioned Officer in the Military, 24 [Naval or Air] Forces 25 [ 26 [***] of India];
(Third) --Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
(Fourth) -- Every officer of a Court of Justice 28 [(including a liquidator, receiver or commissioner)] whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;
(Fifth) -- Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;
(Sixth) -- Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
(Seventh) --Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
(Eighth) -- Every officer of 29 [the Government] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
8(Ninth) -- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of 29 [the Government], or to make any survey, assessment or contract on behalf of 29 [the Government], or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of 29 [the Government], or to make, authenticate or keep any document relating to the pecuniary interests of 29 [the Government], or to prevent the infraction of any law for the protection of the pecuniary interests of 29 [the Government] 30 [***];
(Tenth) -- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;
(Eleventh) --Every person who holds any office in 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;
(Twelfth) --Every person--
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956)."
10. Learned counsel for the applicants would submit that learned Chief Judicial Magistrate held that the applicants are public servants, and since it is at pre-stage of taking cognizance of the offence under Section 156(3) Cr.P.C. therefore, as per Section 197 Cr.P.C. if offence is cognizable then only permission under Section 197 Cr.P.C. is required. At present this is not a stage of taking cognizance. As such, protection of 197 Cr.P.C. is not amenable to the applicants. This finding is contrary to the law and against the judgment of Hon'ble Supreme Court in case of Anil Kumar and Others vs. M.K. Aiyappa and Another 1. He would refer to paragraphs No. 8, 9, 12, 14, 21, 22 which are extracted below:-
"8. Learned senior counsel further submitted that the High Court also committed an error in holding that the sanction was necessary even while the Court was 1 (2013) 10 SCC 705 9 exercising its jurisdiction under Section 156(3) Cr.P.C.
Learned senior counsel submitted that the order directing investigation under Section 156(3) Cr.P.C. would not amount to taking cognizance of the offence. Reference was made to the judgments of this Court in Tula Ram and Others v. Kishore Singh (1977) 4 SCC 459 and Srinivas Gundluri and Others v. SEPCO Electric Power Construction Corporation and Others (2010) 8 SCC 206.
9. Shri Uday U. Lalit, learned senior counsel appearing for the respondents, on the other hand, submitted that the question raised in this case is no more res integra. Reference was made to the judgment of this Court in Subramanium Swamy v. Manmohan Singh and another (2012) 3 SCC 64. Learned senior counsel submitted that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duties. The purpose of obtaining sanction is to see that the public servant be not unnecessarily harassed on a complaint, failing which it would not be possible for a public servant to discharge his duties without fear and favour. Learned senior counsel also placed reliance on the judgment of this Court in Maksud Saiyed v. State of Gujarat and Others (2008) 5 SCC 668 and submitted that the requirement of application of mind by the Magistrate before exercising jurisdiction under Section 156(3) Cr.P.C. is of paramount importance. Learned senior counsel submitted that the requirement of sanction is a prerequisite even for presenting a private complaint under Section 200 Cr.P.C. and the High Court has rightly quashed the proceedings and the complaint made against the respondents.
12. We will now examine whether the order directing investigation under Section 156(3) Cr.P.C. would amount to taking cognizance of the offence, since a contention was raised that the expression "cognizance" appearing in Section 19(1) of the PC Act will have to be construed as post-cognizance stage, not pre-cognizance stage and, therefore, the requirement of sanction does not arise prior to taking cognizance of the offences punishable under the provisions of the PC Act.
14. In State of West Bengal and Another v. Mohd. Khalid and Others (1995) 1 SCC 684, this Court has observed as follows:
"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.10
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."
The meaning of the said expression was also considered by this Court in Subramanium Swamy case (supra).
21. Learned senior counsel appearing for the appellants 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. We find it difficult to accept that contention. 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) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra).
22. Further, this Court in Army Headquarters vs CBI and opined as follows:
"82.Thus, in view of the above, the law on the issue of sanction can be summarized 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."
11. On the other hand learned counsel for respondent No.2 vehemently submits that the submission of the learned counsel for the applicants 11 is incorrect as no cognizance has been taken, it is at pre-cognizance stage, therefore, direction of learned Chief Judicial Magistrate to register FIR against the applicants is legal and just and would submit that the petition is liable to be dismissed by this Court.
12. The learned counsel for the petitioners would submit that the word 'Taking of Cognizance of the offence' is defined in the Court in broad and literal sense, it means taking notice of the offence which would include intention of initiating judicial proceeding against offenders in respect of the offence for taking steps to see whether there is any basis for initiating judicial proceedings. The word 'cognizance' indicates the point when Magistrate or Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings, rather is it the condition precedent of the initiation of the proceedings by a Magistrate or a Judge, cognizance is taken of the case, not of the persons.
13. Hon'ble Supreme Court in case of State of W.B. and Another vs. Md. Khalid and Others 2 have examined the word cognizance and held in para 43 and 44 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 Wharton's Law Lexicon 2 (1995) 1 SCC 684 12 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."
It has, thus, reference to the hearing and determination of the case in connection with an offence. By the impugned judgment the High Court has quashed the orders of sanction and the Designated Court taking cognizance in the matter."
14. Hon'ble Supreme Court in case of Army Head Quarter vs C.B.I. 3 in para 82 and 83 summarized the applicability of the grant of sanction and held as under :-
"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. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The act complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have reasonable connection inter-relationship or inseparably connected with discharge of his duty, he becomes entitled for protection of sanction.
84. 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 for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. The question as to whether the act complained of, is done in performance of 3 (2012) 6 SCC 228 13 duty or in purported performance of duty, is to be determined by the competent authority and not by the court. The Legislature has conferred "absolute power" on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority."
15. Hon'ble Supreme Court has again examined the necessity of sanction before directing for inquiry under Section 156(3) of the Cr.P.C. in case of L. Narayan Swamy vs. State of Karnataka and Others 4, the Hon'ble Supreme Court considering the previous judgments on the issue held in paragraph 16 as under :-
"16. ... Having regard to the ratio of the aforesaid judgment, we have no hesitation in answering the question of law, as formulated in para 7 above, in the negative. In other words, we hold that an order directing further investigation under Section 156(3) of the Cr.P.C. cannot be passed in the absence of valid sanction."
16. From the above stated legal position, it is crystal clear that without sanction of the State Government for public servants cognizance under Section 156(3) cannot be taken, therefore, learned Chief Judicial Magistrate has committed illegality in directing on the basis of the application filed by respondent No. 2 under Section 156(3) of the Cr.P.C., Thus, the proceedings initiated on the basis of the complaint without sanction is nothing but an abuse of process of law. This Court can invoke its inherent jurisdiction so as to prevent abuse of process of Court. It would be futile exercise to permit the proceedings to continue where sanction is not available. This is well settled position that the public servant cannot be prosecuted on whims and caprices of a person. In such circumstance, where inherent power of this Court has to be exercised as held by the Hon'ble Supreme Court in Kartar Singh Vs. State of Punjab reported in (1994) 3 SCC 569, which reads as under.
" The power given to High Court under Article 226 is an extraordinary power not only to cor- rect the manifest error but also to exercise it for sake of justice. Under the scheme of the Constitution a High Court is the highest court for purposes of exercising civil, appellate, 4 (2016) 9 SCC 598 14 criminal or even constitutional jurisdiction so far that State is concerned. The jurisdiction possessed by it before coming into force of the Constitution was preserved by Article 225 and by Articles 226 and 227 an extraordinary jurisdiction was conferred on it to ensure that the subordinate authorities act not only in ac-
cordance with law but they also function within the framework of law. That jurisdiction of the High Court has not been taken away and in fact could not be taken away by legis-
lation. In England even in absence of Consti- tution whenever an attempt was made by Parliament to provide that the order was final and no writ of certiorari would lie the High Court always struck down the provision.
Since the High Court under the Constitution is a forum for enforcement of fundamental right of a citizen it cannot be denied the power to entertain a petition by a citizen claiming that the State machinery was abusing its power and was acting in violation of the constitu-
tional guarantee. Rather it has a constitutional duty and responsibility to ensure that the State machinery was acting fairly and not on extraneous considerations. In State of Maharashtra Vs. Abdul Hamid Haji Mohammed, this Court after examining the principle laid down in Kharak Singh Vs. The State of U.P. and Others, and Paras Ram Vs. State of Haryana, held that the High Court has jurisdiction to en- tertain a petition under Article 226 in extreme cases. What are such extreme cases cannot be put in a strait-jacket. But the few on which there can be hardly any dispute are if the High Court is of opinion that the proceedings under TADA were an abuse of process of court or taken for extraneous considerations or there was no material on record that a case under TADA was made out. If it be so then there is no reason why should the High Court not exercise its jurisdiction and grant bail to the accused in those cases where one or the other exceptional ground is made out"
17. From above discussion, it is quite clear that continuation of criminal proceeding against the Government Servant without sanction is abuse of process of law. Therefore, this Court can use its inherent power under Section 482 of the CrP.C. and quash the proceeding. In the present case, sanction has not been taken by the complainant/respondent No. 2 before initiating the proceedings under 15 Section 156(3) Cr.P.C. therefore, order dated 05.11.2015 passed by the Chief Judicial Magistrate, Surajpur directing the police to register FIR, investigate the matter and submit final report, is nothing but an abuse of process of law, therefore, the order dated 05.11.2015 is quashed so far as it relates to the present applicants namely G.R. Sakre and R.C. Soni. Consequently, FIR, if any registered in pursuance of order dated 05.11.2015 passed by learned Chief Judicial Magistrate, Surajpur under Sections 420, 467, 468, 409, 471, 477-A IPC read with Section 34, 120B IPC is also quashed so far as it relates to the applicants - G.R. Sakre and R.C. Soni only.
18. Accordingly, the present Cr.M.P. is allowed.
Sd/-
(Narendra Kumar Vyas) Judge kishore