Himachal Pradesh High Court
Sudha Gupta vs State Of Himachal Pradesh on 4 January, 2020
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.MMO No. 307 of 2016
.
Reserved on: 03.01.2020
Date of Decision: 04.01.2020
Sudha Gupta ...Petitioner.
Versus
State of Himachal Pradesh ..Respondent.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1Yes
For the Petitioner: Mr. R.K. Bawa, Senior Advocate, with
Mr.Ajay Kumar Sharma, Advocate.
For the Respondents: Mr.Desh Raj Thakur, Additional Advocate
General, for the respondent-State.
Vivek Singh Thakur, J.
Petitioner herein is facing trial under the provisions of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'P.C. Act') in case FIR No.2 of 2012 dated 16.02.2012, registered under Sections 7 and 13(2) read with Section 13(i)(d) of P.C. Act in Police Station, State Vigilance and Anti Corruption Bureau, Shimla (hereinafter referred to as 'SV & ACB Shimla') in Sessions Case No.6.R/7 of 2013, titled as State vs. Sudha Gupta, wherein charge has been framed against her.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 22. By means of present petition, quashing of FIR, sanction granted by the competent authority to prosecute petitioner, charges framed against her and consequential .
proceedings of criminal trial, has been sought on the ground: (i) that State Police was not having jurisdiction to investigate the matter and presenting challan in the Court against petitioner for the reason that (i) she is a Central Government employee, serving as a Principal in Kendriya Vidyalaya (KV), ITBP, Sarahan Bushahr, an Organization and instrumentality of the Government of India under r the Union Ministry of Human Resource Development; (ii) challan presented against petitioner is a case of no evidence on record and no prima facie case exists against her; and (iii) sanction granted to prosecute the petitioner is a result of non-application of mind having been granted in stereotype manner.
3. Mr. R.K. Bawa, learned Senior Counsel, has contended on behalf of the petitioner that petitioner has been framed for demanding bribe from the complainant, who was serving as a contractual teacher of spoken English language in KV, for renewal of her contract in the next academic session, whereas, as notified vide Office Memorandum dated 18.10.2011 (Annexure P-5), in Clause-6, contractual teacher, once engaged in a school, was not entitled for renewal further in the next academic session and, therefore, there was no occasion for the petitioner to raise any demand for an act, which was not permissible at all and, therefore, story of the prosecution case is ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 3 not sustainable. Further that it is the claim of prosecution that on the basis of information disclosed by complainant on 16.09.2012, it was found that it was a case of urgent nature and for paucity of .
time, State Police had to act without informing the Central Bureau of Investigation (CBI) despite the fact that CBI only was having jurisdiction to investigate the matter, from letter dated 15.02.2012 sent from the Office of Superintendent of Police, SV & ACB (SIU) Shimla to Sub-Divisional Magistrate (SDM), Rampur for deputing Executive Magistrate and one official to report Deputy Superintendent of Police, SV & ACB at Sarahan and office order dated 15.02.2012 issued by the SDM, Rampur deputing Mukesh Sharma, Tehsildar (Executive Magistrate), Rampur and Vishnu Lal, Field Kanungo, to report to the Deputy Superintendent of Police, SV & ACB, Shimla, at Sarahan on 16.02.2012 at 9.30 a.m. sharp, filed with challan, it is evident that the information was available with the police on 15.02.2012 itself and there was sufficient time to contact the CBI before proceeding further, as it was mandatory to inform and consult the CBI as provided in Central Bureau of Investigation (Crime) Manual 2005 (in short 'CBI Manual'), however no information was given to CBI not only at initial stage, but till completion of investigation and presentation of challan in the Court, which has vitiated the entire inquiry and resultantly vitiating trial.
4. It has also canvassed on behalf of the petitioner that even if it is considered that on 16.02.2012, on account of emergent situation, State Police i.e. Deputy Superintendent of ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 4 Police, SV & ACB had to proceed further without informing/ consulting the CBI, even then, it was mandatory for him to inform and consult the CBI and to handover the investigation to the CBI .
in terms of CBI Manual and it is submitted that CBI was not informed purposely as false case has been framed against the petitioner as a pressure tactics forcing her to succumb to the illegal desire of complainant and the State Police has acted without jurisdiction.
5. Referring various pronouncements reported in Vineet Narain and others vs. Union of India and another, (1998) 1 SCC 26; Shashikant vs. Central Bureau of Investigation and others, (2007) 1 SCC 630; State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571; and State Represented by Inspector of Police, Chennai vs. N.S. Gnasewaran, (2013) 3 SCC 594, learned Senior Counsel has contended that compliance of CBI Manual is mandatory and deviation therefrom vitiates the trial and warrants quashing of the FIR, charge-sheet and criminal proceedings against petitioner. For establishing mandatory nature of provisions of CBI Manual, learned counsel for the petitioner has also referred pronouncements of various High Courts passed in MCR. Vyas vs. Inspector of Police, 2014 SCC Online Mad 4930; Ripun Bora vs. State (Through CBI), 2011 SCC Online Del 5235; and judgment of High Court of Judicature at Madras dated 15.05.2017 in Crl.O.P. NO.2245 of 2017, titled ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 5 as S. Murali & another vs. State by the Inspector of Police CBI/ACB/ Chennai.
6. Referring State of Haryana and others vs. Bhajan .
Lal and others, 1992(Suppl.) 1 SCC 335 , it is also contended that in cases like present one, as per CBI Manual, it was mandatory for the Investigating Agency to hold preliminary inquiry so as to ascertain the veracity of the allegation levelled by the complainant attracting provisions of P.C. Act and as the Investigating Agency has failed to adhere to the said procedure, petition deserves to be allowed on this ground also.
7. It is also propagated on behalf of the petitioner that competent authority has not applied its judicial mind before signing the sanction but has acted in stereotype manner, without going into the genuineness and correctness of the evidence produced by it at the time of granting sanction to prosecute the petitioner in a case under P.C. Act and it has been alleged that the act of granting sanction, in present case, is in conflict with the pronouncements of the Apex Court in cases Jaswant Singh vs. State of Punjab, AIR 1958 SC 124; 1978 SCC Online Allahabad 238; Mansukhlal Vithaldas Chauhan vs. State of Gujarat, (1997) 7 SCC 622; Naga People's Movement of Human Rights vs. Union of India, (1998) 2 SCC 109; and Romesh Lal Jain vs. Naginder Singh Rana and others, (2006) 1 SCC 294.
8. Referring Clause 1.10 of CBI Manual, dealing with jurisdiction of Delhi Special Police Establishment (in short ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 6 'DSPE/CBI) vis-a-vis State Police, it is canvassed that in this Clause there is a complete procedure prescribed with respect to jurisdiction of DSPE/CBI and State Police, wherein it is provided .
that cases related to Central Government employees or undertakings of Central Government shall be investigated by DSPE/CBI and even in emergent cases, State Police has to take action and after taking necessary actions and carrying out urgent part of investigation, it has to transfer the investigation to CBI compulsorily and as the Apex Court has held the provisions of CBI Manual mandatory for investigation carried out and challan presented in the Court in pursuant thereto, for deviation therefrom, consequentially, criminal trial pending against the petitioner is vitiated and is liable to be quashed.
9. It is argued that Delhi Special Police Establishment Act, 1946 (in short 'DSPE Act') is a special law, whereas, Criminal Procedure Code (in short 'Cr.P.C.') is a general law and the special law will prevail upon the general law and when CBI has been vested with the jurisdiction to investigate the cases in relation to the Central Government employees, State Police has no right and jurisdiction to investigate the matter invoking provisions of Section 156 of Cr.P.C.
10. It is also pointed out on behalf of the petitioner that it is evident from appointment letter dated 09.04.2011 of the complainant (Annexure P-4) that her appointment was valid up to 09.04.2012 only and, therefore, there was no question of assuring her by the petitioner to continue her contract for next ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 7 academic session for alleged demand raised by the petitioner, as, for Clause-6 of Office Memorandum (Annexure P-5), it was not permissible at all. Lastly, it is contended that the fact that CBI .
only was having jurisdiction to investigate the case, also stands admitted by the State Police in its endorsement made on complaint (Annexure P-1) filed by Kaushalya, wherein Deputy Superintendent of Police/Investigating Officer has noted that for paucity of time, it was not possible to inform CBI etc. despite the fact that petitioner was an employee of Central Government undertaking. r
11. Mr. Desh Raj Thakur, learned Additional Advocate General, opposing the petition vehemently, has submitted that for the evidence on record and also for the reason that on the basis of material placed before him, learned Special Judge has taken cognizance and, thereafter framed charge against petitioner, no prima facie case is made out for quashing the FIR and consequential proceedings thereto. Referring provisions of Section 6 of the DSPE Act, Sections 2(b), 2(c) and 17 of P.C. Act and Section 156 of the Cr.P.C., it is contended that the State Police was competent and having jurisdiction to launch investigation against the petitioner and to present challan against her on completion of the said investigation even without informing and consulting the CBI and it is also contended that CBI Manual is mandatory for regulating investigations, but provisions thereof, in conflict with Statute are to be ignored, as, such provisions cannot have overriding effect on the provisions ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 8 of Statute. It is contended that under Section 156 Cr.P.C. any Officer Incharge of Police Station is empowered to investigate any cognizable case without order of the Magistrate and the .
offences under P.C. Act are cognizable offences and further that Section 17 of P.C. Act empowers the Deputy Superintendent of Police or Police Officer of equivalent rank in the State to investigate any offence punishable under P.C. Act without order of Magistrate and to make any arrest therefor without a warrant and Section 6 of DSPE Act, does not exclude jurisdiction of State Police in the cases, wherein CBI has authority to investigate, rather Section 6 provides that CBI is not empowered to exercise its power and jurisdiction in any area of a State without consent of the Government of that State which means that State also has power to investigate all the cases involving the offences under P.C. Act, committed in territory of the State. It is further submitted that at the time of empowering Deputy Superintendent of Police or any other officer under Section 17 of P.C. Act to investigate the matter under the said Act no distinction has been made out between the 'State Government Public Servants' or 'Central Government Public Servants' and their 'public duty' as defined in Section 2(b) and 2(c) of P.C. Act and, therefore, Deputy Superintendent of Police of State Police is definitely having power to investigate the case against Central Government employees under P.C. Act for commission of offence in the State.
::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 912. To substantiate plea on behalf of the State, learned Additional Advocate General, has also referred pronouncement of the Apex Court in A.C. Sharma vs. Delhi Administration, AIR .
1973 SC 913; judgment of Madhya Pradesh High Court in Ashok Kumar Kirtiwar vs. State of M.P., 2001 Cr. L.J. 2785; and State of Madhya Pradesh and others vs. Ram Singh, (2000) 5 SCC 88; and judgment dated 04.12.2017 in Cr.R.No.544 of 2016, titled as Arvind Jain vs. State of Madhya Pradesh. It is further canvassed that State Police is empowered to investigate cases of corruption or bribery against Central Government employees and provisions of P.C. Act do not exclude jurisdiction of State Police to investigate offences of corruption or bribery committed by the Central Government employees in the State and CBI Manual or any other instructions/guidelines cannot exclude jurisdiction of State Police conferred upon it by Cr.P.C.
and P.C. Act, and DSPE Act does not confer exclusive jurisdiction upon DSPE/CBI to investigate the offence of bribery or corruption committed by the Central Government employees in a State and, therefore, it is contended that present petition is abuse of process and is liable to be dismissed.
13. CBI has been established under DSPE Act. Section 3 of this Act provides that Central Government, by notification in the official Gazette, will specify offences and clauses of offences, to be investigated by DSPE/CBI and Section 5 provides extension of powers and jurisdiction of DSPE/CBI to other areas by order of the Central Government, but subject to, as provided under ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 10 Section 6, consent of the State Government for exercising power and jurisdiction by DSPE/CBI in the area of that State.
Undisputedly, power and jurisdiction of DSPE/CBI has been .
extended with respct to the cases of bribery and corruption i.e. offence under P.C. Act to the area in Himachal Pradesh. But it does not establish that authorization of DSPE/CBI to exercise powers and jurisdiction, is ouster of power and jurisdiction of State Police.
14. Chapter-IV of the P.C. Act deals with investigation into cases under the Act, wherein Section 17 prescribes the persons authorized to investigate, which empowers a Deputy Superintendent of Police or a Police Officer of equivalent rank of the State Police to investigate any offence punishable under this Act without order of a Metropolitan Magistrate or Magistrate of First Class, as the case may be or to make any arrest therefor without a warrant with further qualification that even a Police Officer not below the rank of an Inspector of Police can be authorized by the State Government in this behalf by general or special order to investigate any offence without order of a Metropolitan Magistrate or a Magistrate of the First Class, as the case may be or to make arrest therefor without a warrant, with further rider that an offence referred under Section 13(1)(e) of P.C. Act shall not be investigated without order of the Police Officer not below the rank of Superintendent of Police. This Act does not classify the offenders as 'Central Government employee' and 'State Government employee', but prescribes ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 11 different rank of officers of various agencies, including CBI and State Police, empowered to investigate the matter under P.C. Act.
Providing agency to investigate offences of corruption committed .
by the Central Government employee, or by an employee of institution of Central Government by establishing Special Police Force/CBI, does not confer exclusive jurisdiction upon such agency to exclusion of State Police, which has been conferred power and jurisdiction to investigate any cognizable case under Section 156 Cr.P.C. In none of the provisions either of DSPE Act or P.C. Act, r power under Section 156 Cr.P.C. has been circumvented expressly or impliedly, therefore, State Police as well as CBI are having concurrent power and jurisdiction to investigate such cases.
15. In order to avoid any conflict and duplication of efforts, keeping in view concurrent or coextensive powers of DSPE/CBI and State Police, an administrative arrangement arrived at by CBI with the State Police Forces has been incorporated in Clause 1.10 to 1.15 of Chapter-I of CBI Manual, wherein it is provided that cases, substantially or essentially against Central Government employees or concerning affairs of Central Government, shall be investigated by DPSE/CBI irrespective of the fact that certain employees of the State Government may also be involved therein and in such eventuality, State Police or State Anti Corruption Bureau/Vigilance set-up of the State, on information of such cases, will render necessary assistance to the CBI during ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 12 investigation and prosecution therein; and cases which are essentially or substantially against the State Government employees or are in respect of the matter of the State .
Government, shall be investigated by the State Police irrespective of the involvement of certain Central Government employees therein as co-accused and in such cases DSPE/CBI, on information, will assist the State Police or State Anti Corruption / Vigilance set-up, if necessary, in completing investigation.
16. In Clause 1.10.3 of CBI Manual, CBI has also been authorized to investigate certain categories of cases involving Central Government employees which are of special categories as provided in sub-clauses (i) to (iv), but present case does not fall in such category.
17. Petitioner is placing reliance upon provisions contained in Clause 1.10.1 for exclusion of power and jurisdiction of the State Police to investigate in present case. However, petitioner has lost sight of the provisions of Clause 1.10.4 which provide that arrangement contained in previous clauses is the general arrangement and it may not be possible for CBI to take up all cases falling under aforesaid categories because of limited resources and for need to concentrate on cases having interstate or international ramifications and also those involving bribery and corruption and, therefore, it is a matter of discretion, whether the State Police or CBI should investigate a particular offence, even though, it may have been notified under Section 3 of DSPE Act and ordinary cases of theft, misappropriation, ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 13 cheating etc. even if committed by Central Government employees are, therefore, to be dealt with by the State Police.
18. Clause 1.11 of CBI Manual provides that it has also .
been agreed that the State Police or Anti-Corruption/Vigilance set-up may take immediate action in respect of the Central Government employees in certain circumstances described in this Clause in sub-clauses (a) to (d), wherein it is provided that where there is complaint of demand of bribe by Central Government employee and trap has to be laid to catch such employee red-handed r and there is no time to contact Superintendent of Police concerned of the CBI, the trap may be laid by the State Police/Anti-Corruption or Vigilance set-up and thereafter CBI should be informed immediately and it should be decided in consultation with CBI whether further investigation should be carried out and completed by the State Police or by the CBI. It is also provided in Clause (b) that where there is likelihood of destruction or suppression of evidence, if immediate action is not taken, the State Police/Anti-Corruption or Vigilance set-up may take necessary steps to register the case, secure the evidence and, thereafter, handover the case to the CBI for further investigation. Clause (c) provides that information about cases involving Central Government employees, which are being investigated by the State Police/Anti-Corruption or Vigilance set-
up should be sent by them to the local CBI Branch, Headquarter of the Department and/or the office concerned as early as possible, but in any event, before a charge-sheet or final report is ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 14 submitted. Clause (d) provides that in cases against Central Government employees which are investigated by the State Police/Anti-Corruption or Vigilance set-up, wherever sanction is .
necessary for prosecution from a Competent Authority of a Central Government Department, shall be referred to the Competent Authority directly under intimation to the CVC. It is evident from perusal of CBI Manual that CBI and State Police/Anti-Corruption or Vigilance set-up supplement and coordinate each other's work in certain spheres. Concurrent or coextensive power of State Police and DSPE/CBI has been recognized in CBI Manual and the arrangements made therein with the State Police are for avoiding conflict and duplication of efforts but definitely not for ousting the jurisdiction of State Police in cases required to be investigated by DSPE/CBI related to Central Government employees, but committed in the territory of the State.
19. There is no dispute that the Apex Court in its pronouncement in Vineet Narain's case , has observed and directed that CBI Manual, based on statutory provisions of Cr.P.C., provides essential guidelines for the CBI's functioning and it is imperative for the CBI to scrupulously adhere to the provisions in the Manual in relation to its investigative functions like raids, seizure and arrests, and any deviation from the established procedure should be viewed seriously and severe disciplinary action be taken against the officials concerned. Thus, observations and directions shall be relevant in a case being ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 15 investigated by CBI. The pronouncement of the Apex Court nowhere suggests that for provisions of CBI Manual, jurisdiction of State Police to investigate matters involving Central .
Government employee, under P.C. Act, has been ousted or barred or provision of CBI Manual excludes or bars jurisdiction of State Police in such matters. Rather, even CBI Manual, itself provides that arrangement contained in Clause 1.10 is general arrangement and the State Police as a matter of discretion in given facts and circumstances of the case may investigate particular offence irrespective of its notification under Section 3 of DSPE Act.
20. Similary, Apex Court in its judgment rendered in Shashikant's case , in paras 8 and 9, relied upon by the petitioner and also in its pronouncement in case of Committee for Protection of Democratic Rights, in para 33, referred by the petitioner, has reiterated that jurisdiction of CBI to investigate an offence is to be determined with reference to the notification issued under Section 3 of the DSPE Act and not by any separate order not having that character and that in CBI Manual Central Government has laid down procedure for conducting investigation including mode and manner in which preliminary inquiry should be conducted, which has approval of the Apex Court in Vineet Narain's case. Referring Vineeet Narain's case supra, similar observations have been made by the Apex Court in N.S. Gnasewaran's case , which has also been relied by the petitioner in his favour.
::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 1621. I also find support from the pronouncement of the Apex Court in A.C. Sharma's case, wherein it is observed that Section 5-A of DSPE Act and Section 17 of P.C. Act, 1988, do not .
confer power to investigate into the offences mentioned therein solely on DSPE/CBI, to the complete exclusion of regular Police Force.
22. The judgments referred by the petitioner in MCR.
Vyas's case, Ripun Bora's case, S. Murali's case and Dr. Somasekhar I. Tolanur vs. The Inspector of Police, CBI Anti Corruption Branch Shastri Bhavan, Chennai, Crl.O.P.12760 of 2014, deal with cases, wherein there was violation by the CBI of the procedure prescribed in CBI Manual during the investigation of a case and there is no quarrel on the proposition that during investigation by CBI, it is mandatory for CBI to follow the CBI Manual. The issue in question, in present case, is not that whether CBI was having power and jurisdiction to investigate or not, or whether the CBI has violated procedure prescribed under CBI Manual or not, but issue is as to whether the State Police was empowered and having jurisdiction to investigate it or not.
Therefore, judgments referred, irrespective of undisputed ratio of law laid down therein, are not applicable in present case.
23. Undoubtedly, verdict of the Apex Court that provisions of CBI Manual are mandatory to be followed in case of investigation, even if it is considered that each and every part of CBI Manual is mandatory, then also as discussed supra Clauses 1.10 and 1.11 provide not only scope for State Police, but also ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 17 recognize the concurrent or coextensive power and jurisdiction of State Police Force and CBI to investigate the matters related to Central Government employees committed in area of the State .
concerned.
24. For assailing the sanction for prosecution against petitioner, reliance has been placed on Jaswant Singh's case, wherein it is held that it should be clear from the form of sanction that the sanctioning authority has considered evidence before it and after a consideration of all the circumstances of the case, has sanctioned prosecution and, therefore, unless matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority has applied its mind to the facts and circumstances of the case and only a valid sanction gives the Court jurisdiction to try the charge and without such sanction the prosecution would be nullity and trial without jurisdiction.
25. In judgment of the Apex Court, referred on behalf of the petitioner, in Mansukhlal Vithaldas Chauhan's case referring Jaswant Singh's case, the Apex Court has held that validity of the sanction would depend upon material placed before sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority and consideration implies application of mind and the order of sanction must ex facie disclose that sanctioning authority has considered evidence and other material placed before it and this fact can also be established by ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 18 extrinsic evidence by placing relevant facts considered by the sanctioning authority, which necessarily follows that the sanctioning authority has to apply its own independent mind for .
generation of genuine satisfaction as to whether prosecution has to be sanctioned or not and the mind of the sanctioning authority should be free from any kind of pressure external force enabling the sanctioning authority to exercise its discretion having not been affected by any extraneous consideration.
26. Referring judgment of the Apex Court in Naga People's Movement of Human Rights's Case , it is canvassed that there must be reasoning in an order to sanction the prosecution.
27. Pronouncement of the Apex Court in Romesh Lal Jain's case, has also been referred to reiterate that it is beyond any cavil of doubt that an order granting or refusing sanction must be preceded by application of mind on the part of the appropriate authority and if complainant or accused can demonstrate such an order, granting or refusing sanction, to be suffering from non-application of mind, the same may be called in question before a competent Court of law.
28. Relying upon aforesaid judgment, it is contended that sanction granted in the present case vide order dated 15.01.2013 (Annexure P-6) to prosecute the petitioner is not a valid sanction order, as after reproducing the case of prosecution, sanction has been accorded under Section 19 of PC.
::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 19Act for prosecution of the petitioner without reflection of application of mind on the part of the competent authority.
29. On perusal of sanction order (Annexure P-6), it is .
evidently clear that competent authority has not only reproduced the prosecution case but in second last para has categorically stated that after careful examination of materials placed before it such as pre-trap and post-trap memos etc., including the investigation report, pertaining to the said allegations provided to it by Superintendent of Police, SV & ACB (SIU) Shimla and having applied mind to the facts and circumstances of the case and evidence on record, it considered that there is sufficient oral and documentary evidence to prove the allegation of demand and acceptance of bribe and motive behind the demand of bribe from the complainant by the petitioner and thereupon it is observed that petitioner may be prosecuted in a Court of law under Sections 7 and 13(1)(d) read with Section 13(2) of P.C. Act to prosecute the petitioner. Sanction order is not in the form of performa or in printed form, but it is on the Letter Head of Kendriya Vidyalaya Sanghthan, which contains the details of the relevant facts, material and evidence collected by the prosecution and consideration thereof by the sanctioning authority which implies application of mind. As observed supra, this order of sanction ex facie discloses that sanctioning authority has considered the evidence and other material collected during investigation and placed before it. The sanctioning authority has not only stated that it has gone ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 20 through the relevant record and evidence, but has also reproduced the same in the sanction order. Therefore, I find no force in the contention raised on behalf of the petitioner that .
sanction order has been issued without application of mind.
30. In present case, petitioner has been caught red-
handed by laying trap and in such a case, it is not possible to conduct preliminary inquiry after registration of the case and, rather conducting preliminary inquiry may lead to wiping out evidence. In case of Bhajan Lal , it was observed that mere possession of any pecuniary resources or property is by itself not an offence, but it is the failure to satisfactorily account for such possession of pecuniary resources or property that makes possession objectionable and constitutes the offence and, therefore, it was observed that the police officer with whom investigation of such case is entrusted should not proceed with preconceived idea of guilt of that person indicted with such offence and subject him to any harassment and victimisation, because in case the allegations of illegal accumulation of wealth are found during the course of investigation as baseless, the harm done not only to that person but also to the office he held will be incalculable and inestimable.
31. Plea of the petitioner raised on the basis of pronouncement of the Apex Court in Bhajan Lal's case , that before registering an offence and making full scale investigation into it, keeping in view the status of the petitioner, police officer should have conducted preliminary inquiry, is also not ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 21 sustainable in the facts and circumstances of the present case and provisions of law on the basis of which the issue has been discussed and decided in Bhajan Lal's case.
.
32. In present case, complainant has informed about demand of bribe by the petitioner of a particular date and time on which date trap was laid and petitioner was caught and, thereafter only, it was found that petitioner was involved in commission of the alleged offence and from that stage, in my considered opinion, it would be impractical to revert back to the preliminary inquiry. Therefore, in present case, there was no occasion for the police officer to conduct preliminary inquiry before proceeding further. Even if it is considered that during investigation in present case, some irregularity or illegality has been committed by the Investigating Officer, then also, it has been held by the Apex Court in A.C. Sharma's case, such irregularity or illegality in the course of collection of evidence, can scarcely be considered by itself to affect the legality of the trial, by an otherwise competent Court, of the offence so investigated as the function of investigation is merely to collect evidence and when once, as found in foregoing discussions, investigation in present case by the State Police cannot be considered to be in any way unauthorized or contrary to law, thus defect or illegality in investigation will not have any bearing on the competence or procedure relating to cognizance or trial.
33. The same principle has been propounded by the Apex Court in H.N. Rishbud and another vs. State of Delhi, ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 22 AIR 1955 SC 196, wherein it is observed that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or .
trial and it cannot be maintained that a valid legal police report is the foundation of the jurisdiction of the Court to take cognizance and the Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612, has also held that once charge-sheet is filed, then merely because Investigating Agency had no jurisdiction to investigate the matter, charge-sheet cannot be quashed as it is not possible to say that cognizance on an invalid police report is prohibited and, therefore, liable to be quashed. However, the Apex Court in these pronouncements has further clarified that in case illegality in the investigation can be shown to have been brought about a miscarriage of justice, trial may vitiate for that.
34. Referring Jankinath Sarangi vs. State of Orissa, (1969) 3 SCC 392; State of U.P. vs. Shatrughan Lal, (1998) 6 SCC 651; State of Andhra Pradesh vs. Thakkidiram Reddy, (1998) 6 SCC 554; and Debotosh Pal Choudhury vs. Punjab National Bank, (2002) 8 SCC 68, Hon'ble Supreme Court in Ganeswaran's case supra has held that the issue also requires to be examined on the touchstone of doctrine of prejudice and unless in a given situation, the aggrieved makes out a case of prejudice or injustice, some infraction of law would not vitiate the order/enquiry result and in judging a question of prejudice, the ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 23 court must act with a broad vision and look to the substance and not to technicalities.
35. In present case, there is nothing on record to .
establish that investigation undertaken by the State Police has caused miscarriage of justice or any prejudice to the petitioner.
Therefore, even if, there is deviation from the arrangement arrived at between the State Police and CBI with respect to informing the CBI and seeking consent of CBI to investigate the matter or to transfer the investigation to CBI, then also, for the evidence available on record whereupon cognizance has been taken by the trial Court the trial cannot be declared to have been vitiated. Other contentions raised on behalf of the petitioner with respect to merits of the allegations levelled in the complaint, evidence before trial Court and an inference to be drawn therefrom, would amount to expression of opinion, by this Court, on merit, which is not warranted in this petition and further from the material on record it cannot be said that prima facie no case is made out against the petitioner or it is apparent ex facie on the face of record that the petitioner is not involved in the commission of alleged offence and, therefore, taking of cognizance by the trial Court and framing of charge, is not sustainable. Rather material on record establishes the prima facie case, so as to take cognizance and frame charge against the petitioner.
36. Plea that State Police was having information about commission of offence by the petitioner on 15.02.2012 itself and ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 24 was having sufficient time to inform the CBI about it, is also not relevant at this stage, as it has been concluded that CBI as well as State Police were having concurrent and coextensive power .
and jurisdiction to investigate the case. From the communications dated 15.02.2012 between Superintendent of Police, SV & ACB and Sub-Divisional Magistrate and even dated office order passed by the Sub-Divisional Magistrate, it is evident that State Police has been planning to trap the petitioner by forming a raiding party, however, it is a fact that written complaint by r the complainant was submitted to Deputy Superintendent of Police, SV & ACB (SIU) Shimla at Sarahan on 16.02.2012 at 11.30 a.m. alleging that the complainant was asked by petitioner to pay bribe on very same day. However, for aforesaid documents dated 15.02.2012, it cannot be said that there is no evidence on record so as to proceed in criminal trial against petitioner. The fact of these documents and not informing CBI would only render the investigation defective, but it does not render evidence collected against petitioner inadmissible during trial for lapse on the part of the Investigating Agency or Investigating Officer, as such lapse is not an illegality or irregularity affecting genesis of prosecution case.
37. The Apex Court in Gulzari Lal vs. State of Haryana, (2016) 4 SCC 583 , referring Paras Yadav vs. State of Bihar, (1999) 2 SCC 126 , has observed that lapse on the part of Investigating Officer should not be taken in favour of the accused as such lapse may be committed designedly or because of ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 25 negligence and, therefore, prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not.
.
38. The Apex Court in Yogesh Singh vs. Mahabeer Singh and others, (2017) 11 SCC 195, relying upon C. Muniappan vs. State of Tamilnadu, (2010) 9 SCC 567, has reiterated that law with respect to effect of defect and has observed that defect in investigation by itself cannot be a ground for acquittal and if primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded and where there is negligence on the part of the Investigating Agency or omissions etc. which, resulted into defective investigation, there is legal obligation on the part of the Court to examine the prosecution evidence dehors of such lapse, carefully, to find out whether the said evidence is reliable or not and to what extent is reliable and as to whether such lapse affected the object of finding out the truth as the investigation is not the solitary area for judicial scrutiny in a criminal trial and the conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. In that case, delay in sending the FIR to the Magistrate was not considered a fatal irregularity in absence of any prejudice to the accused and for other positive evidence on record that FIR was recorded without unreasonable delay.
::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 2639. In Krishnegowda and others vs. State of Karnataka by Arkalgud Police, (2017) 13 SCC 98 , the Apex Court has again reiterated that mere lapse on the part of the .
Investigating Officer itself cannot be a ground for acquitting the accused and if that is the basis, then every criminal case will depend upon the will and design of the Investigating Officer and, therefore, Courts have to independently deal with the case and should arrive at a just conclusion beyond reasonable doubt basing on the evidence on record.
40. In Kumar vs. State represented by Inspector of Police, (2018) 7 SCC 536, the Apex Court has referred ratio of law laid down in Parbhu vs. King Emperor, 1944 SCC Online PC 1: AIR 1944 PC 73, wherein it had been ruled that irregularity or illegality of arrest would not affect the culpability of the offence if the same is proved by cogent evidence and it has been reiterated by the Apex Court that criminal justice must be above reproach. Recently, in Sachin Kumar Singhraha vs. State of Madhya Pradesh, (2019) 8 SCC 371, the Apex Court has recited that criminal justice should not become casualty because of minor mistakes committed by the Investigating Officer.
41. Considering above settled exposition of law on the issue, failure of State Police/Investigating Officer to inform or consult CBI at appropriate stage, cannot be a ground to quash FIR and criminal proceedings arising out thereto against the petitioner. However, it is also observed that State Police/DSPE ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 27 should have informed CBI after registration of case or laying trap and collecting evidence related thereto, in consonance with CBI Manual. Director General of Police, H.P., is directed to take .
necessary suitable action for such lapse on the part of concerned officer(s) required to be taken after seeking explanation.
42. In present case, for evidence placed on record, it cannot be said that allegations made in the FIR/complaint, even if they are taken at their face value and accepted in its entirety, do not prima facie constitute any offence or make out a case against petitioner or FIR/complaint and evidence collected in support thereof do not disclose commission of any offence to make out a case against petitioner or there is any legal impediment to institute and continue proceedings against petitioner, warranting quashing of FIR and/or criminal trial pending against petitioner in the trial Court.
43. In view of discussions hereinabove, it is concluded that State Police/State Vigilance set-up is having concurrent and coextensive power and jurisdiction to investigate the cases of bribery and corruption against Central Government employees and P.C. Act, 1988 does not exclude, rather include power and jurisdiction of Police Officers competent to investigate as provided under Section 17 of the P.C. Act to investigate such offences committed by Central Government employees, within their State and DSPE Act, 1946 read with CBI Manual also does not exclude the power and jurisdiction of the State Police to investigate against Central Government employees in cases of ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP 28 P.C. Act and CBI Manual regulates procedure to be adopted by the State Police and CBI to investigate offences wherein both Agencies have power and jurisdiction to investigate.
.
44. Any expression of opinion in this judgment shall have no bearing in the proceedings pending before the trial Court.
45. Accordingly, present petition is dismissed, being devoid of merits, in aforesaid terms. Parties are directed to appear before the trial Court on 19.02.2020. Record be sent back immediately.
46. The Director General of Police, H.P., also be apprised of passing of this judgment for compliance on his part.
(Vivek Singh Thakur), Judge.
January 4, 2020 (Purohit) ::: Downloaded on - 04/01/2020 20:30:39 :::HCHP