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2011 DIGILAW 1643 (RAJ)

Bhanwar Singh Shekhawat v. State of Rajasthan

2011-08-08

SANGEET LODHA

body2011
Hon'ble LODHA, J.—This criminal miscellaneous petition u/Sec. 482 Cr.P.C. is directed against order dated 3.10.2007 passed by the Special Judge, Anti Corruption, Jodhpur whereby the complaint filed by the respondents alleging commission of offences u/Secs. 420, 467, 468, 471 and 120 IPC read with section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 (in short, "the Act") has been referred for investigation to the Additional Superintendent of Police, Anti Corruption bureau (ACB), Jodhpur u/Sec. 156(3) of Cr.P.C. 2. Learned counsel for the petitioner contended that Section 156 relates to investigation into cognizance offences and the Magistrate empowered u/Sec. 190 can only direct investigation u/Sec. 156(3) Cr.P.C. on being satisfied that the complaint filed prima facie discloses commission of a cognizable offence. It is submitted that a Court of Special Judge cannot be termed to be a Magistrate so as to exercise the power u/Sec. 156(3) Cr.P.C. In this regard, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "Moly & Anr. vs. State of Kerala", (2004) 4 SCC 584. 3. Learned counsel urged that the offence u/Sec. 13(1)(d)(ii) is not a cognizance offence and therefore, the Special Judge had no jurisdiction to refer the matter for investigation u/Sec. 156(3) to the Additional Superintendent of Police, A.C.B. 4. It is next contended that the investigation ordered by the Special Judge is of no consequence inasmuch as, the Special Judge can take cognizance of the offence only if a sanction is granted by the appropriate authority u/Sec. 19 of the Act. It is submitted that in the instant case, the Court has initiated the proceedings at the instance of a private party by way of complaint filed which is politically motivated. Learned counsel urged that before registering the crime, there must be suitable preliminary inquiry by a responsible officer and the crime should be registered only if the preliminary inquiry prima facie reveals the commission of the offence by the public servant. In support of his contention, learned counsel has relied upon a decision of the Kerala High Court in the matter of "Biju C. Vallavanadan vs. State of Kerala", (2004) 4 Criminal Court Cases 651. 5. Learned counsel contended that learned Special Judge has mecha-nically directed the Additional S.P., A.C.B. to register a case, hold investigation and submit a report. In support of his contention, learned counsel has relied upon a decision of the Kerala High Court in the matter of "Biju C. Vallavanadan vs. State of Kerala", (2004) 4 Criminal Court Cases 651. 5. Learned counsel contended that learned Special Judge has mecha-nically directed the Additional S.P., A.C.B. to register a case, hold investigation and submit a report. It is submitted that a bare perusal of the order reveals that there is no application of mind on the part of the Special Judge. Learned counsel further submitted that even the allegations contained in the complaint reveals that it does not contain allegations constituting the offence u/Sec. 7 or Sec. 13(1)(d) of the Act. Accordingly, it is submitted that the order impugned deserves to be quashed and set aside for this reason alone. 6. Lastly, learned counsel contended that the revision petitions preferred by the complainants for cancellation of pattas issued by the UIT, Jodhpur which are subject matter of the complaint referred u/Sec. 156(3) Cr.P.C. have already been dismissed by the revisional authority, the Divisional Commissioner, Jodhpur, vide order dated 18.10.2010 passed in UIT Revision Petitions No. 9/2007 and other connected revision petitions and therefore, now any further investigation by the police in pursuance of the order impugned would be an exercise in futility. 7. On the other hand, learned Public Prosecutor submitted that the Court of Special Judge under the Act is a Court of original criminal jurisdiction and therefore, it is empowered to direct the investigation into cognizable offences in terms of provisions of Section 156(3) Cr.P.C. It is submitted that the investigation in terms of Section 156(3) Cr.P.C. is permissible only at the pre-cognizance stage and therefore, the contentions raised on behalf of the petitioner at this stage that the Special Judge cannot take cognizance of the offence without prior sanction u/Sec. 19 of the Act does not require consideration of this Court. 8. Learned Public Prosecutor submitted that the offence u/Sec. 13(d) of the Act is a cognizable offence and therefore, the directions issued by the Special Judge in terms of provisions of Section 156(3) cannot be faulted with. That apart, it is submitted that the complaint filed alleges commission of the offence not only 13(1)(d)(ii) of the act but also u/Secs. 8. Learned Public Prosecutor submitted that the offence u/Sec. 13(d) of the Act is a cognizable offence and therefore, the directions issued by the Special Judge in terms of provisions of Section 156(3) cannot be faulted with. That apart, it is submitted that the complaint filed alleges commission of the offence not only 13(1)(d)(ii) of the act but also u/Secs. 420, 467, 468, 471 and 120-B IPC and therefore, viewed from any angle, the order impugned passed by the Special Judge does not suffer from any infirmity or illegality. 9. Counsel appearing for the complainant submitted that the Special Judge passing an order directing investigation in terms of provisions of Section 156(3) is a pre-cognizance stage and therefore, question of obtaining the sanction does not arise. In this regard, learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the matter of "Rameshwar Pandurao Hedau vs. State of Gujarat" (2010) 4 SCC 185 and "Mohd. Yousuf vs. Afaq Jahan (Smt.) & Anr. (2006) 1 SCC 627 . Learned counsel submitted that offence u/Sec. 13(1)(d)(ii) of the Act is punishable by imprisonment to the extent of 7 years and therefore, by virtue of the classification of the offences as set out in Part II of First Schedule of Cr.P.C. It is a cognizable offence. Learned counsel submitted that the Special Judge having directed investigation u/Sec. 156(3), the officer in charge of the police station is under an obligation to register an FIR and investigate the matter. Relying upon a decision of the Hon'ble Supreme Court in the matter of "Satya Narayan Sharma vs. State of Rajasthan (2001) 8 SCC 607 , learned counsel submitted that in view of the bar contained u/Sec. 19(3)(c) of the Act, this Court cannot stay the proceedings under the Act on any ground. 10. I have considered the rival submissions, perused the proceedings of the case produced by the learned Public Prosecutor and other material on record. 11. Indisputably, the complaint filed by the private respondents contains allegations constituting offences u/Sec. 420, 467, 468, 471, 120-B IPC read with Section 13(1(d)(ii) of the Act. 10. I have considered the rival submissions, perused the proceedings of the case produced by the learned Public Prosecutor and other material on record. 11. Indisputably, the complaint filed by the private respondents contains allegations constituting offences u/Sec. 420, 467, 468, 471, 120-B IPC read with Section 13(1(d)(ii) of the Act. As per the provisions of Section 4(1) of the Act, the offences specified in sub-section (1) of Section 3 i.e. (i) any offence punishable under the Act and (ii) any conspiracy to commit or any attempt to commit or any abatement of any offences specified under the act, are exclusively triable by the Special Judge appointed under the Act. Further, sub-section (3) of Section 4 makes it abundantly clear that the Special Judge may also try offence, other than an offence specified in Section 3 with which the accused may under the Cr.P.C. be charged at the same time. Section 22 of the act provide that the provisions of Cr.P.C. shall apply to the proceedings in relation to an offence punishable under the Act of course, subject to certain modification as specified. 12. As laid down by the Hon'ble Supreme Court in the matter of A.R. Antulay vs. R.S. Nayar, AIR 1984 SC 718 , the Court of Special Judge is a court of original criminal jurisdiction and therefore, it has to function as a Court of original criminal jurisdiction and not being hide bound by terminological status description of Magistrate or Court of session. The Court specifically observed that the Special Court shall enjoy all powers which court of original criminal jurisdiction enjoy save and except the ones specifically denied. The Court further observed that it is well recognized principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting an offence indicates to the contrary. It is not the case of the petitioner that there is a provision incorporated in the Act, denying the exercise of the power by the Special Judge directing investigation in terms of provisions of Section 156(3) Cr.P.C. In this view of the matter, in considered opinion of this Court, the court of Special Judge being Court of original criminal jurisdiction is empowered to forward even a private complaint for investigation to the police u/Sec. 156(3) Cr.P.C. 13. In Moly's case (supra) relied upon by the learned counsel for the petitioner, the Hon'ble Supreme Court opined that the special court constituted under the provisions of Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot take cognizance directly as a Court of original jurisdiction without the case being committed to it by a Magistrate inasmuch as, no provision contrary to the provisions of Section 193 Cr.P.C. is incorporated under the said Act. 14. Suffice it to say that the Court of the Special Judge constituted under the Act enjoy all powers which court of original criminal jurisdiction enjoy except those which are specifically denied to it under the Act whereas, the Special Court constituted under the SC/ST Act does not enjoy the same status and powers. Thus, the decision of the Hon'ble Apex Court in Moly's case (supra) does not help the petitioner in any manner. 15 . Coming to the contention of the learned counsel that no crime should have been registered by the police on the complaint being forwarded without preliminary inquiry into the allegations by a responsible officer, is also devoid of any merit. In Biju C. Vallavanandan's case (supra), relied upon by the learned counsel for the petitioner, the Kerala High Court has specifically observed that a Court of Special Judge being a Court of original jurisdiction can forward a complaint to the police for investigation u/Sec. 156(3) Cr.P.C. and when a complaint is forwarded to the police u/Sec. 156(3) Cr.P.C. for investigation, the police is bound to register a crime and investigate the case. However, the Court observed that when compliant against public servant alleging commission of the offences under the Act is forwarded to Vigilance Officer, he is not bound to register a crime immediately on the receipt of a complaint. Thus, in considered opinion of this Court, the complaint having been forwarded by the Special Judge to the Additional Superintendent of Police, A.C.B., he is bound to register the crime and investigate the same. 16. A bare perusal of the order impugned reveals that while directing the investigation in terms of provisions of Section 156(3), the Special Judge has not taken cognizance of the offences as alleged by the complainant as yet. 16. A bare perusal of the order impugned reveals that while directing the investigation in terms of provisions of Section 156(3), the Special Judge has not taken cognizance of the offences as alleged by the complainant as yet. Indisputably, the bar contained u/Sec. 19(1)(c) of the Act which deals with previous sanction necessary for prosecution of the public servant operates at the stage of Court taking cognizance of the offence punishable u/Secs. 7, 10, 11, 13 and 15 of the Act and not prior to it. As laid down by the Hon'ble Supreme Court in the matter of "Devarapalli Lakshminarayana Reddy & Ors. vs. V. Narayana Reddy & Ors.", AIR 1976 SC 1672 , "The power to order police investigation u/Sec. 156(3) Cr.P.C. is different from the power to investigation referred u/Sec. 202(1) Cr.P.C. The two operates in distinct sphere at different stages, the first is exercisable at the pre-cognizance stage and second at post cognizance stage when the Magistrate is in seisin of the case." Similar is the view taken by the Hon'ble Supreme Court in Rameshbhai Pandurao Hedau's case (supra). 17. Undoubtedly, the previous sanction of the State Government in terms of provisions of Section 19 of the Act is required at the stage of taking cognizance of the offences punishable u/Secs. 7, 10, 11 and 15 of the Act and not while directing the investigation at pre-cognizance stage in terms of provisions of Section 156(3) Cr.P.C. Thus, the contention of the petitioner that the order impugned passed by the special Judge directing investigation in terms of provisions of Section 156(3) Cr.P.C. without sanction of the State Government is without jurisdiction, also falls through. 18. It is true that while passing the order directing investigation on a complaint being filed by the private respondents, the Court has to apply its mind as to whether the prima facie case for investigation is made out or not but then, the Court is not required to record the reasons in this regard in details. 18. It is true that while passing the order directing investigation on a complaint being filed by the private respondents, the Court has to apply its mind as to whether the prima facie case for investigation is made out or not but then, the Court is not required to record the reasons in this regard in details. Having gone through the complaint and material on record and taking into consideration the totality of the facts and in the circumstances of the case, this Court is of the considered opinion that the allegations contained in the complaint filed by the respondents do prima facie discloses the commission of inter alia the offence u/Sec. 13(1)(d) of the Act and therefore, the Special Judge has committed no error in forwarding the complaint for investigation in terms of provisions of Sec. 156(3) Cr.P.C. and the investigation by the police does not warrant any interference by this Court at this stage. 19. Lastly, coming to the contention of the learned counsel for the petitioner that in view of the order passed by the revisional authority, any further investigation by the A.C.B. shall be an exercise in futility, suffice it to say that the matter already stands referred by the Special Judge for investigation to the police and therefore, the effect of the order dated 18.10.2010 passed by the revisional authority, if any, shall obviously be looked into by the investigating officer and therefore, at this stage, this Court is not required to enter into a roving inquiry to find out as to whether after passing of the order by the revisional authority as aforesaid, the investigation should proceed further or not. 20. In view of the discussion above, no case for interference by this Court in exercise of its inherent powers u/Sec. 482 Cr.P.C. is made out. 21. In the result, the criminal miscellaneous petition is hereby dismissed.