Gujarat High Court
Vishnubhai Manilal Patel vs State Of Gujarat on 6 September, 2021
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/SCR.A/5077/2021 ORDER DATED: 06/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5077 of 2021
With
R/SPECIAL CRIMINAL APPLICATION NO. 5097 of 2021
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VISHNUBHAI MANILAL PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR. RAHUL R DHOLAKIA(6765) for the Applicant(s) No. 1
PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
RULE NOT RECD BACK(63) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 06/09/2021
COMMON ORAL ORDER
1. Heard Mr. Jal Unwala, the learned Senior advocate and Mr. Prakash Jani, the learned Senior advocate for the petitioner.
2. It is submitted by learned Senior advocates that original informant has challenged the ad-interim relief granted by this Court vide order dated 14.6.2021 in Special Criminal Application No. 5097 of 2021 and therefore, in view of the pendency of the Special Leave Petition (Cri.) No. 6567 of 2021, matters may be adjourned.
3. On the other hand, Mr. IH Syed, the learned Senior advocate assisted by Mr. Aniq Kadri, the learned advocate appearing for the original informant has fairly stated that the Special Leave petition (Cri.) filed by the original informant is pending before the Apex Court, however, he is ready to proceed with the matters.
4. On 14.06.2021, the coordinate bench of this Court passed the following order in Special Criminal Application No. 5097 of 2021:
Page 1 of 9 Downloaded on : Mon Sep 06 23:16:16 IST 2021R/SCR.A/5077/2021 ORDER DATED: 06/09/2021 "1. This petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code' for short) for quashing and setting aside the order dated 19.5.2021 passed by learned J.M.F.C., Unjha District Mehsana in Criminal Inquiry No.2 of 2021. The petitioner has also prayed to quash and set aside all the consequential proceedings and actions taken by the concerned police authority including registration of FIR, if any.
2. Learned Senior Advocate Mr.Unwala has submitted that the present respondent no.2 has filed private complaint being Criminal Inquiry Case No.2 of 2021 before learned J.M.F.C., Unjha against the present petitioner and two others and requested the concerned Magistrate that direction be issued to Unjha Police Station to register the FIR. It is submitted that the learned Magistrate, by way of impugned order, taken the cognizance of all the offences alleged and thereafter directed the officer-in-charge of CID Crime, Gandhinagar branch to lodge FIR as per Section 156(3) of the Code for the offences punishable under Sections 405, 406, 409, 464, 467, 471 and 120B of the Indian Penal Code. Further direction was given to the said agency that after proper investigation, necessary report be filed within a period of sixty days. Learned Senior Advocate has assailed the aforesaid order mainly on the ground that the Magistrate has taken cognizance of the matter without prior sanction of the competent authority. It is submitted that the present petitioner is the Chairman of the Agricultural Produce Market Committee (`APMC' for short), Unjha. It is submitted that as per provisions contained in Section 67 read with Section 42 of the Agriculture Produce Market Committees Act, previous sanction of the competent authority is required before taking the cognizance. Learned Senior Advocate has also referred to the provisions contained in Section 197 of the Code.
2.1 Learned Senior Advocate has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of L.Narayana Swamy V/s State of Karnataka, reported in (2016)9 SCC 598 as well as the decision rendered by this Court in the case of Dhanrajbhai Hirabhai Patel V/s State of Gujarat, reported in 2021 Cr.L.J.1053.
2.2 Learned Senior Advocate has further contended that while passing the impugned order, the concerned Magistrate has given the finding that ingredients of the alleged offences are made out and all the accused have conspired together. It is further contended that the concerned Magistrate has also given Page 2 of 9 Downloaded on : Mon Sep 06 23:16:16 IST 2021 R/SCR.A/5077/2021 ORDER DATED: 06/09/2021 the finding that alleged act of the accused does not fall under the purview of Section 197 of the Code and Section 42 of the APMC Act. It is, therefore, urged that the impugned order passed by the concerned Magistrate Court is perverse and against the decision rendered by the Hon'ble Supreme Court as well as this Court and therefore the issue involved in this petition requires consideration.
3. On the other hand, learned Senior Advocate Mr.Syed has opposed this petition and mainly contended that while passing the impugned order, the concerned Magistrate has not taken the cognizance of the offence and therefore the sanction of the competent authority is not required. Learned Senior Advocate has also contended that when the Magistrate passed an order of investigation under Section 156(3) of the Code, it cannot be said that he has taken cognizance of the offences, therefore sanction of the competent authority is not required. It is further submitted that the decisions upon which the reliance is placed by learned counsel appearing for the petitioner are on the point of sanction under Section 19 of the Prevention of Corruption Act ('P.C.Act' for short). The said decision would not be applicable to the facts of the present case.
3.1 Learned counsel has also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of State of Karnataka V/s Pastor P Raju, reported in (2006)6 SCC 728 and more particularly, paragraph 7 thereof. Learned counsel has also referred and relied upon the decision rendered by the Hon'ble Supreme Court in the case of R.R.Chari V/s State of Uttar Pradesh, reported in AIR 1951 SC 207.
3.2 Learned Senior Advocate, therefore, urged that no error is committed by the Sessions Court while passing the impugned order. Therefore, this petition may not be entertained.
4. Having heard learned advocates appearing for the parties and having gone through the impugned order passed by the concerned Magistrate as well as the decision upon which reliance is placed by learned counsel, it appears that learned Magistrate has passed detailed order of 35 pages while giving direction to the officerin-charge of CID crime, Gandhinagar to lodge the FIR as per Section 156(3) of the Code for the offence punishable under Sections 405, 406, 409, 464, 467, 471 and 120B of the Indian Penal Code. If the said order is carefully seen, it is prima facie revealed that the Magistrate has, in fact, recorded finding that the ingredients of the alleged offences are made out in the complaint and all the accused hatched conspiracy to fulfill the desired results by collecting the usage charges. It is also observed that Chairman and Secretary (accused) are responsible for the loss to the government due to Page 3 of 9 Downloaded on : Mon Sep 06 23:16:16 IST 2021 R/SCR.A/5077/2021 ORDER DATED: 06/09/2021 the ongoing misappropriation of money in the organization. The Magistrate has also recorded the finding that the alleged act of the accused cannot be said to be done while exercising their official duty and therefore the alleged act of the accused does not fall under the purview of Section 197 of the Code and Section 42 of the APMC Act. Thus, this Court is prima facie of the view that while passing the impugned order, the learned Magistrate has taken the cognizance of the alleged offences.
4.1 It is contended by learned counsel appearing for the petitioner that the learned Magistrate could not have taken cognizance without previous sanction of the Director as per Section 42 of the APMC Act. "Section 42 of the APMC Act reads as under:
"42. No court shall take cognizance of any offence alleged to have been committed by a member, Secretary, officer or servant of a market committee while acting or purporting to act in the discharge of his duties in relation to the affairs of the committee except with the previous sanction of the Director."
4.2 In the case of L.Narayana Swamy (supra), the Hon'ble Surpreme Court has referred and relied upon the decision rendered in the case of Anil Kumar and others V/s M.K.Aiyappa and another reported in (2013)10 SCC 705 and thereafter observed in paragraph 12 as under:
"12. Second judgment in the case of Anil Kumar referred to above is directly on the point. In that case, identical question had fallen for consideration viz. whether sanction under Section 19 of the P.C. Act is a pre-condition for ordering investigation against a public servant under Section 156(3) of Cr.P.C. even at pre-cognizance stage? Answering the question in the affirmative, the Court discussed the legal position in the following manner:
"13. The expression "cognizance" which appears in Section 197 CrPC came up for consideration before a three-Judge Bench of this Court in State of U.P. v. Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200], and this Court expressed the following view: (SCC pp. 375, para 6) "6. ... '10. ... And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section Page 4 of 9 Downloaded on : Mon Sep 06 23:16:16 IST 2021 R/SCR.A/5077/2021 ORDER DATED: 06/09/2021 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words 'no' and 'shall' makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word 'cognizance' means 'jurisdiction' or 'the exercise of jurisdiction' or 'power to try and determine causes'. In common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.' [Ed.: As observed in State of H.P. v. M.P. Gupta, (2004) 2 SCC 349, 358, para 10 : 2004 SCC (Cri)
539.] "
14. In State of W.B. v. Mohd. Khalid [(1995) 1 SCC 684 : 1995 SCC (Cri) 266] , this Court has observed as follows:
"13. 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 Page 5 of 9 Downloaded on : Mon Sep 06 23:16:16 IST 2021 R/SCR.A/5077/2021 ORDER DATED: 06/09/2021 or upon information received from any other person that an offence has been committed. 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." [Ed.: As considered in State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, 734, para 13 : (2006) 3 SCC (Cri) 179.] The meaning of the said expression was also considered by this Court in Subramanian Swamy case [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] .
15. The judgments referred to hereinabove clearly indicate that the word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) CrPC, obviously, he has not taken cognizance of the offence and, therefore, it is a pre- cognizance stage and cannot be equated with post- cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 CrPC and the next step to be taken is to follow up under Section 202 CrPC. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage. xxx xxx xxx
21. The 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. Subsection (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 Page 6 of 9 Downloaded on : Mon Sep 06 23:16:16 IST 2021 R/SCR.A/5077/2021 ORDER DATED: 06/09/2021 judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) CrPC. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh [(2009) 6 SCC 372 : (2009) 2 SCC (L&S) 200] and Subramanian Swamy [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] cases."
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."
From the aforesaid decision, it is clear that an order directing the investigation under Section 156(3) of the Code cannot be passed in absence of valid sanction.
4.3 At this stage, the decision upon which the reliance is placed by the learned counsel for the respondent no.2 in the case of R.R.Chari (supra) is required to be considered. In paragraph 10 of the said decision, the Hon'ble Supreme Court has observed as under:
"10. After referring to the observations in Emperor v. Sou- rindra Mohan Chuckerbutty (2), it was stated by Das Gupta J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (3) as follows :--" What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under section 190 (1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter--proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the magistrate Page 7 of 9 Downloaded on : Mon Sep 06 23:16:16 IST 2021 R/SCR.A/5077/2021 ORDER DATED: 06/09/2021 applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under section 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence." In our opinion that is the correct approach to the question before the court."
4.4 From the aforesaid decision, it is clear that if the Magistrate has passed an order for investigation under Section 156(3) of the Code, it cannot be said to have taken cognizance of the offence. It is true that the order of investigation under Section 156(3) of the Code is a pre- cognizance stage. In the facts of the present case, when the learned Magistrate has passed a reasoned order of 35 pages wherein he has discussed the role attributed to the accused including the present petitioner and even given findings on certain aspects, this Court is of the view that the Magistrate has taken cognizance of the alleged offences. Thus, in the facts of the present case, prima facie, the aforesaid decision would not be applicable.
4.5 Now, as per Section 42 of the APMC Act, the previous sanction of the Director would be required before taking cognizance of any offence alleged to have been committed by the Member, Secretary, Officer or Servant of Market Committee.
5. In the present case, previous sanction of the competent authority is not obtained and prima facie, this Court is of the view that the decision rendered by the Hon'ble Supreme Court in the case of L.Narayana Swamy (supra) would be applicable to the facts of the present case.
6. In view of the aforesaid facts and circumstances of the present case, this Court is of the view that this petition cannot be dismissed at the threshold and issue involved in the petition requires consideration. Hence, Rule returnable on 6.9.2021. Till next date of hearing, ad-interim relief in terms of paragraph 8(b) is granted. It is clarified that the observations made in this order are prima facie and tentative in nature and are subject to the final hearing of the petition."
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5. Let the matters be listed on 11.10.2021. Interim relief granted earlier to continue till then.
(ILESH J. VORA,J) P.S. JOSHI Page 9 of 9 Downloaded on : Mon Sep 06 23:16:16 IST 2021