JUDGMENT 1. - An extremely interesting question has been raised in this case which though has been concluded by the decision of their Lordship of the Hon'ble Supreme Court, in the case of Abhinandan Jha and ors. v. Dinesh Mishra, 1968 AIR (S.C.) 117 yet requires to be decided for further clarification of the Sub-ordinate Court, in such circumstances, which are not wholly covered by the aforesaid decision of their Lordships. 2. Briefly stating the facts leading to this petition are that a report was lodged on 21st September, 1982, by one Mahadev Gujar, with the Anti Corruption Department, that for de-marcating the boundary of an agricultural land, bribe is demanded jointly by the Girdavar, who was petitioner at that time and the Patwari, was co-accused. A trap was arranged and tainted money was recovered. Patwari Moolchand, co-accused had accepted the amount and thus, he was arrested. Since the money was recovered from the plastic bag which was containing shaving material and was belonging to the petitioner, he too was arrested and investigation commenced against both the persons. The Investigation Officer the ACD did not find any case against the petitioner as in his opinion, there was no evidence regarding passing of the currency notes to him or over hear any such dialogues between the decoy and the co-accused that the petitioner was also to share the bribe money and, therefore, a report under Section 169 Cr.P.C. reporting to be a final report was submitted before the learned Judge, of the A.C.D. The learned Judge, did not agree with the final report submitted by the A.I.I. and passed an order that the final report cannot be accepted under the circumstances of the case and the file may be placed before the Competent Officer, for granting sanction to prosecute the accused and on receipt of the sanction, a charge-sheet should be submitted. There-after, a charge-sheet was submitted against the accused by the police after obtaining the sanction which is challenged in this court by way of this petition, precisely on the ground that no jurisdiction is vested in the Court, express or implied to direct the police to submit the charge-sheet as information of the opinion by the police is the final investigation and it cannot be by any other authority. 3. Learned counsel for the petitioner, in support of his petition has relied on the case of Jauharimal & anr. 3. Learned counsel for the petitioner, in support of his petition has relied on the case of Jauharimal & anr. v. The State of U.P. 1969 AIR (All) 241 , and also the case of Abhinandan Jha v. Dinesh Mishra 1968 AIR S.C. 117 . In the case from Allahabad, in a case of theft if telegraph wife, a report was lodged on which investigation was made by the police. Police, however, after investigation came to the conclusion that the time could not be worked-out and, therefore, submitted a final report. When the final report was placed before the learned Magistrate, he did not agree with the investigation & directed the police to do a fresh investigation and to submit a charge-sheet. As such the charge-sheet was subsequently submitted and on the basis of the charge-sheet, the Superintendent of Police also submitted a complainant as required under S. 7 of the Telegraph Wires (Un-lawful Possession) Act. A question was raised before the High Court, as to whether the Magistrate, had the jurisdiction to direct not only the re-investigation but to file a charge-sheet and what would be the position of the complainant submitted by the Superintendent of Police. The learned Judge, held that the Supdt. of Police, undoubtedly, had the authority to make the complainant of an offence committed within the meaning of Telegraph Wires (Un-lawful Possession) Act, but then he had to file the complainant on his own initiative. It may be that before filing the complainant the S.P. could have validly required an investigation to be made by the police and to act upon that investigation and to proceed with the complainant filed on the basis there-of. 4. "In the instant case, it is obvious that the S.P. did not take any initiative in the matter and nor did he require any investigation to be made by the police. It was the Magistrate, who commanded the police to submit the charge-sheet after dis-agreeing with the final report, which was the basis even for filing the complainant and thus, the urgent thrash to the order of the learned Magistrate, which was wholly illegal". The learned Judge, in course of discussion was of the opinion that initiation in filing the case against the accused was on the part of the Court and therefore, it was bond to influence the authority for filing the complainant. The learned Judge, in course of discussion was of the opinion that initiation in filing the case against the accused was on the part of the Court and therefore, it was bond to influence the authority for filing the complainant. In the case of Abhinandan Jha v. Dinesh Mishra (Supra), Their Lordships, however, resolved the conflicts of opinion between various High Courts on a question as to whether the Magistrate, can direct the police to submit the charge-sheet when the police after investigation entered into a cognizable offence had submitted the final report under S. 183 Cr.P.C. Their Lordships also considered the various provision of Chapter-14 and 15 of the Cr.P.C. and discussed the previous cases decided by different Courts, concluded that:- We have to approach the question arising for consideration in this case, in the light of the circumstances, pointed out above. We have already referred to the scheme of Chapter XIV as well as the observations of this Court in Rishbud and Inder Singh's Case AIR 1955 SC 196 that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is left to the officer-in-charge of the police station. There is no express power so far as we can use which gives jurisdiction to pass an order of the nature under attack nor can any such powers be implied. There is certainly no obligation on the Magistrate, to accept the report,if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance under S. 190(1)(c) of the Code. That provisions in our opinion, is obviously intended to secure that offences need not go un-punished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either want only or through bona fide error, fail to submit a report setting-out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate, to take cognizanee of an offence not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicious that the offence has been committed. Therefore, a very wide power is conferred on the Magistrate, to take cognizanee of an offence not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicious that the offence has been committed. It is open to the Magistrate, to take cognizance of the offence under S. 190 (1)(c), on the ground that, after having due regard to the final report and the police records placed before him he has reason to suspect that an offence has been committed. Therefore, these circumstances will also clearly negative the power of a Magistrates to call for a charge-sheet from the police when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to place the accused for tail, is that of the officer-incharge of the police station and that opinion determines whether the report is to be under S. 170, being a "Charge-sheet", or under S. 169. "A final report". It is no doubt, open to the Magistrate, as we have already pointed out to accept dis-agree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet because the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate, cannot compel the police to form a particular opinion on the investigation and to submit a report, according to such opinion. That will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report either u/S. 169 under S. 170, depending upon the nature of the decision. Such a function has been left to the police under the Code. That will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report either u/S. 169 under S. 170, depending upon the nature of the decision. Such a function has been left to the police under the Code. We have already pointed out that the investigation under the Code, takes in several aspects, the stages ending ultimately with the formation of an opinion by the police as to whether on the material, covered and collected a case is made-out to place the accused before the Magistrate, for trial, and the submission of either a charge-sheet or a final report is depend on the nature of the opinion, so formed. The formation of the said opinion by the police as pointed-out earlier, is the final step in the investigation and that final step is to be taken only by the police and by no other authority. The question came also be considered from another point of view supposing the police send a report viz, a charge-sheet under S. 270 of the Code. As we have already pointed out the Magistrate is not bond to accept that report, when he considered the matter judicially but can he differ from the police and call upon them to submit a final report under S. 169? In our opinion, the Magistrate, has no such power. If he has no such powers, in law, it also follows that the Magistrate, has no power to direct the police to submit a charge-sheet, when the police has submitted a final report that no case is made-out for sending the accused for trial. The functions of the Magistracy and the police, are entirely different and though in the circumstances mentioned earlier, the Magistrate may, or may not accept the report and take suitable action according to law, he cannot certainly infringe (sic Impinge?) upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. Therefore, to conclude, there is no power expressly or impliedly conferred, under the Code, on a Magistrate call upon the police to submit a charge-sheet, when they have send a report under S. 169 of the Code, that there is no case made-out for sending up an accused for trial. Therefore, to conclude, there is no power expressly or impliedly conferred, under the Code, on a Magistrate call upon the police to submit a charge-sheet, when they have send a report under S. 169 of the Code, that there is no case made-out for sending up an accused for trial. It is, therefore, clear that the learned Magistrate, has no jurisdiction express or implied to call-upon the police to submit the charge-sheet. 5. This preposition concludes a part of this case to the extent that the direction given by the Court to file the charge-sheet is bad in law and the proceedings require to be quashed on that count yet it leaves an interesting question that in cases where the sanction to prosecute is required as in the instant case which would be the proper order which can be construed by the Court, when the papers are submitted before the learned Magistrate, under Section 169 Cr.P.C. In cases, where the Courts jurisdiction to take cognizance under S. 190 Cr.P.C. is barred by statute for want of sanction. When there is a provision in the Cr.P.C. or for that any special statute, wherein the bar is that no Court shall take cognizance of offence say, without the sanction of the competent authority. The stage of obtaining the sanction does not arise in cases, where the Investigating Officer, on merits did not find a case for placing it before the Court and when such a final report is studied by the Court for the purpose of passing an order. He has 3 options open or he can direct the investigation or he may take cognizance but the last part he cannot perform as there is a legal bar and not a bar of consideration of facts. In such circumstances, anamolus situation arises that in case, the Court applies its mind that it is a mind that it is a fit case for taking cognizance, but he is unable to take cognizance as there is no sanction. He directs the police to obtain the sanction as is happened in this case then obviously, to that extent he would be (illegible) the discretion or atleast influence the mind of the sanctioning authority and his order virtually is a mandate for grant of sanction and in that eventuality there being no application of mind by the Sanctioning Authority, the prosecution otherwise would become invalid. Yet the Court cannot remain as a silent spectrator if it is of the opinion that it is a fit case, which requires the consideration of the Court, after taking cognizance. It is in this type of cases, the difficulty arises and the situation has not been visualised either by the framers of the Code or in the decision of. Their Lordships of the Hon'ble Supreme Court, in the case of Abhinandan Jha v. Dinesh Mishra (Supra), in this later situation, the question of passing the order in the later situation is bound to arise even in the instant case, where something has to be written after the proceedings are quashed qua the accused. 6. In my opinion, there is only one option before the Court, in the circumstances, that without expressing his opinion for taking cognizance, he such direct the Investigating Officer, to place the papers before the sanctioning authority, for application of it's mind and while passings such an order, he has to keep a judicial restrain and only issue a direction that the papers should be placed before the sanctioning authority, for granting sanction being a stage earlier to take cognizance, the jurisdiction of the Court to reject the final report and to take cognizance only after the papers passes through the sanctioning authority. Obviously in a case of positive report, papers are bound to go to the sanctioning authority, but the situation only arises in the case when final report is given. Therefore, the learned Court should not express any opinion on the merits of the case, so as to influence the mind of the sanctioning authority and should clearly observe that the Investigating Officer, should place the matter before the sanctioning authority, for application of it's mind without being influenced by his order. 7. Coming to the present case, the learned Magistrate, has clearly given the direction to the post for obtaining the sanction for filing the charge-sheet which order is patently illegal in view of the decision mentioned aforesaid and there is on hesitation in accepting this petition. The petition is, therefore, allowed and the proceedings qua the petitioner are quashed. It would be open to the Investigating Officer, to proceed with the case in accordance with the law. The petition is, therefore, allowed and the proceedings qua the petitioner are quashed. It would be open to the Investigating Officer, to proceed with the case in accordance with the law. The Investigating Agency may place the papers before the Sanctioning Authority, or the Court, as it deems proper and the authority, shall take independent decision without being influenced on the merits by the earlier order of the Court. 8. The record of the case be remitted forthwith to the trial-court, as the proceedings are likely to be continued against the co-accused.As this was not done the proceedings were quashed.. *******