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8.1 Criminal Inquiry (ACB) No.1/2020 was before the Special (ACB) Judge, Banaskantha at Palanpur, the said Magistrate taking notice of the complaint already filed before the P.I., A.C.B. Police Station on 20.03.2018, stayed the inquiry before him under Section 210 of the Cr.P.C. and called for the report of the concerned I.O. of A.C.B. Police Station, Palanpur. On receipt of the report, the Special (ACB) Judge observed that the report does not really states of any criminal offence as alleged against the accused, as required under Section 210 Cr.P.C., while whole R/CR.RA/624/2020 JUDGMENT report submitted to the Director of A.C.B. was to carry out departmental inquiry against the accused.

8.2 Section 210 Cr.P.C. provides for procedure to be followed, when there is a complaint case and police investigation in respect of the same offence. In a case instituted as a complaint case, and, when it is made to appear to the Magistrate during the course of inquiry or trial held by him, that the investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report in the matter from the investigating Police Officer conducting the investigation, which in this case, has been followed by the Special (ACB) Judge. Section 210(2) Cr.P.C. provides that if a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person, who is an accused in the complaint case, the magistrate shall inquire into or try together the complaint case and case arising out of the police report, as if both the cases were instituted on a police report. The Special (ACB) Judge observed that the report was cryptic and ambiguous and it does not really disclose anything against the accused, as alleged by the complainant, rather the report was made to carry out departmental inquiry against the accused. In such a situation if the police report does not relate to any accused in the complaint case and if the Magistrate does not take cognizance of any offence on the police report, then the recourse available to the Magistrate is as per Section 210(3) Cr.P.C., to proceed with the inquiry or trial which was stayed by him in accordance with the provisions of the Cr.P.C.

9. This Court is of the view that there is no error committed by the Special (ACB) Judge while disposing of the private complaint by Dhanrajbhai Hirabhai Patel, resident of Village Gola, Taluka- Palanpur, District Banskantha, without a valid sanction. When the Criminal Inquiry (ACB) No.1/2020 was registered; a parallel investigation was carried by the P.I., A.C.B. Police Station, Banskantha, thus under the provision of Section 210 Cr.P.C., the Special (ACB) Judge called for the investigating report. Perusal of the report was made, proceeding in accordance with the provisions of Cr.P.C. the Special (ACB) Judge dismissed the private complaint considering that no cognizance can be taken without valid sanction.

11. Adverting to the facts of the present matter, the Special (A.C.B.) Judge had to follow the procedure as contemplated under Section 210 Cr.P.C., since police investigation was in progress in relation to the offence alleged before the Special Magistrate. The report of the police was found to be cryptic and ambiguous, did not disclose any offence, as alleged. In case of R/CR.RA/624/2020 JUDGMENT Subramanium Swamy Vs. Manmohan Singh and Another, reported in (2012) 3 SCC 64, it was held that there is no provision in the P.C. Act, 1988 or Cr.P.C., which bars a citizen from filing a complaint for prosecution of a public servant who is alleged to have committed an offence. The complaint was registered by the Court, when the matter was already investigated by P.I., A.C.B. Police Station, Banskantha, the Court could only ask for the report, which did not disclose any offence and the report recommended for departmental inquiry. No sanction order was procured by the A.C.B. Police. Subramanium Swamy case (supra) recognizes the right of private citizen for filing complaint against public servant and to obtain sanction for prosecuting public servant, such right flows from rule of law. The authority concerned are to follow directions given in case of Vineet Narain v. Union of India, reported in (1998) 1 SCC 226, upon sanction application by a private citizen, who has to be informed of the decision on sanction application to enable him to avail appropriate remedy. However, thus, it becomes crystal clear that as soon as complaint is lodged, if the Magistrate goes through the contents of the complaint in order to proceed and refer the matter to the police for investigation under Section 156(3) of the Cr.P.C. or to take any other step as contemplated under Section 200 of Cr.P.C., it is deemed that he has taken cognizance of the contents of the complaint and came to the conclusion that it is a fit case either to refer it to the police for investigation or to be inquired into by the Court itself. Thus, even for the purpose of lodging a private complaint, order of sanction is an absolute legal requirement to prosecute under Section 19(1) of the P.C. Act. It is rightly held by the Special (A.C.B.) Judge, Palanpur that a trial without a R/CR.RA/624/2020 JUDGMENT sanction renders the proceedings ab initio void. There is no irregularity or infirmity in the order by the Special (A.C.B.) Judge.