Jharkhand High Court
Vinay Kumar Pandey vs The State Of Jharkhand And Ors on 15 July, 2013
Author: R.R. Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi
Cr.M.P.No.840 of 2013
Vinay Kumar Pandey.......................Petitioner
VERSUS
State of Jhakhand and others.......Opposite Parties
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : Mr.A.K.Pandey
For the State :A.P.P
For the Vigilance :Mr. Shailesh Kumar Singh
For the AYUSH : Mr.S.N.Prasad
5/ 15.7.13. This application is directed against the order dated 20.3.2013 passed by Special Judge, Vigilance, Ranchi in Vigilance P.S case no.15 of 2009 whereby and whereunder a complaint lodged by opposite party no.3 was sent under Section 156(3) of the Code of Criminal Procedure before the Vigilance Bureau for institution of the case and its investigation.
Before adverting to the submissions advanced on behalf of the parties, the case which has been made out in the complaint is that in the year 2007-08 an advertisement was published in the daily newspaper ' The Hindustan' calling for the applications from the eligible candidates for appointment on the post of Ayurvedic Medical Officer. Subsequently, a Selection Board was constituted to which the complainant was the Chairman. Applications received were scrutinized and then admit cards were issued to the candidates for interview before the Selection Board. While the process was going on, the petitioner, who at the relevant point of time was Superintendent of Police, Vigilance, asked the complainant through his Constable to appoint his brother, namely, Dhirendra Kumar Pandey as Ayurvedic Medical officer to which the complainant denied by saying that whatever would be done, it would be done through the process of appointment. In spite of that, the petitioner went on insisting to appoint him to which complainant flatly denied. At last he extended threat. Thereupon, a complaint was made before the Director General of Police, Vigilance on 15.8.2008. When the result of successful candidates was published, this petitioner and his brother came to the office and offered Rs.2,00,000/- for giving appointment to accused no.2 by taking a plea that appointments have been made by taking bribe. This was denied and it was conveyed to them that nothing could be done and that nothing wrong has been done by him. Thereupon, both the persons by extending threat to teach him lesson at an opportune moment left office.
Further case is that the complaint made before the Director General of Police, Vigilance, was referred to Cabinet, Vigilance Department for seeking necessary instruction so that preliminary enquiry be started. When the petitioner came to know that a complaint has been filed against him, he conveyed to the complainant that nothing will happen over such kind of complaint. The petitioner then called the complainant on 25.7.2008 and when complainant went to his office, it was said to the complainant that an FIR has been received about his indulgence in corrupt practices in the matter of appointment of Ayurvedic Medical Officer and that if he wants that the matter be hushed up he must pay Rs.2,00,000/-. Upon it, the complainant told him that he has not committed any wrong and therefore, he would not give any money. After some days, the petitioner again asked the complainant to give money. In such situation, the complainant wrote a letter to the then Governor.
Further case of the complainant is that while such matter was under investigation, successor of the petitioner wrote a letter to the Vigilance Commissioner, Cabinet Vigilance Department on 2.7.2011 seeking direction so that preliminary enquiry over the allegation made in the complaint dated 12.8.2008 be made. When nothing was done against the petitioner, the petitioner filed a writ application, vide W.P. (Cr.) No.341 of 2012 for a direction upon the Cabinet, Vigilance Department for instituting an FIR which was dismissed with a liberty to the petitioner to file a complaint before the competent court. Consequently, the complaint was filed alleging therein that the petitioner being a public servant tried to influence and forced the complainant to appoint his brother as Ayurvedic Medical Officer and thereby committed offence under Sections 7,8,9, 10,12 and 13 of the Prevention of Corruption Act.
The said complaint was registered as Complaint Case no.1 of 2013. Upon institution of the case, an order was passed on 18.2.2013 whereby a report was called for from the Additional Director General of Police, Vigilance Department over the matter relating to allegation made in the complaint petition and also to submit report relating to the stage of enquiry. When such report was not submitted, again a reminder was issued on 2.3.2013. In spite of that, when nothing was received, the court passed an order on 20.3.2013 whereby complaint was sent in terms of provision as contained in Section 156(3) of the Code of Criminal Procedure before Vigilance Department for its institution and investigation.
Being aggrieved with that order, this application has been filed. Mr.A.K.Pandey, learned counsel appearing for the petitioner in order to assail the said order submitted that once the report was called for, the Magistrate entered into an enquiry and thereby no order could be passed for sending the complaint under Section 156(3) of the Code of Criminal procedure for its institution and investigation but the court below has done the same and thereby the impugned order is fit to be set aside.
Learned counsel in support of his submission has referred to a decision rendered in a case of Bahadur Singh vs. State of U.P. and others (2011 Cri. L.J.3346).
As against this, Mr.S.N.Prasad, learned counsel appearing for the opposite party no.3 submitted that at no stretch of imagination, it can be said that the Magistrate by calling for a report from the Additional Director General of Police, Vigilance entered into an enquiry in terms of Section 202 of the Code of Criminal Procedure and thereby any order passed by the court for sending the complaint before the Vigilance Police Station for institution of a case cannot be said to be an illegal order, rather the court is well within its power to pass such order and thereby this application is devoid of any merit and hence, it is fit to be dismissed.
In view of the submissions, one needs to take notice of the provisions as contained in Sections 200, 202 and 203 of the Code of Criminal Procedure which read as under:
200. Examination of complainant - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses -
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
202 Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192 may, if he thinks fit, (and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction) postpone the issue of process against the accused, and either inquiry into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made -
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b)where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
3. If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code or an officer in charge of a police station except the power to arrest without warrant.
203. Dismissal of complaint. - If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
Thus, the procedure which has been laid down in the aforesaid provisions is that (1) under Section 200 it is incumbent on the Magistrate taking cognizance on a complaint to examine upon oath the complainant and his witnesses present, if any, at sufficient length to satisfy himself as to the veracity of the complainant and as to any point on which he is silent or on which there may be doubt. The object is to test whether the allegation makes out prima facie case to enable him to issue process.
(2) If he finds no prima facie reason to distrust and the facts constitute an offence under the law, it is incumbent to issue process forthwith. (3) If he distrust the complainant altogether or if no offence is made out, it is equally his duty to dismiss the complaint under Section 203. (4) It is only when his distrust is not sufficiently strong to warrant action upon it, it is opon to him to postpone issue of process pending further enquiry under Section 202. He can then inquire himself or direct an investigation to be made by a police officer or by any private person, he thinks fit.
Thus, what transpires is that if the cognizance is taken, the Magistrate is bound to examine the complainant on oath first and his witnesses present ,if any, and thereafter he may issue process if he thinks that the prima facie case is made out. At the same time, if the Magistrate thinks that no prima facie case is made out, the complaint can be dismissed under Section 203. Third recourse would be there to postpone issue of process pending further inquiry by himself or investigation by the police or any other fit person in terms of Section
202. But in a given case, if the Magistrate without taking cognizance does think that it would be proper to take other action prescribed under the Code, such as, order investigation by the police, he can pass order in terms of Section 156(3) but in no case the Magistrate can be allowed to pass a higbrid order; an order passed under Section 156(3) as well as the order passed under Section 202.
Therefore, the crucial point which is to be considered in this case is as to whether the Magistrate before passing order for sending the complaint before the Vigilance Police Station in terms of Section 156(3) had taken cognizance of the offence or not ?
To ascertain it, I may refer to an order passed on 18.2.2013 and on 2.3.2013. On perusal of the order dated 18.2.2013, it does appear that the learned Special Judge, Vigilance by taking notice of the fact mentioned in the complaint relating to inquiry made by the Vigilance Department would have thought it proper to have a report in this regard before proceeding in the matter further and therefore, called for a report from Additional Director General of Police, Vigilance Department. When that report was not made available, a reminder was issued and in spite of that reminder, when no report was submitted, learned Magistrate passed an order on 20.3.2013 which is impugned in this application whereby complaint was sent to the concerned police station for its registration and investigation.
Thus, it is evidently clear that the court had never taken any cognizance of the offence before passing an order on 20.3.2013.
So far as the case referred to on behalf of the petitioner is concerned, that is not applicable in the facts and circumstances of the present case. In that case, an application was filed seeking direction to the Magistrate that he must treat application under Section 156(3) of the Code of Criminal Procedure as State case which prayer was rejected after observing that power vested in the Magistrate under that relation if stretch to the maximum limit the outer periphery can be that Magistrate can treat an application under Section 156(3) of the Code of Criminal Procedure as a complaint case, adopt the procedure of the complaint case by recording evidences under Sections 200 and 202 of the Code of Criminal Procedure and then either proceed under Section 203 of the Code of Criminal Procedure and dismiss the complaint if no offence is made out or issues summon to the accused under Section 204 of the Code of Criminal Procedure whose complicity does appear in the inquiry conducted under Sections 200 and 202 of the Code of Criminal Procedure.
Thus, I do not find any illegality with the order impugned and hence, this application stands dismissed.
( R.R. Prasad, J.) ND/