Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 280 (HP)

Sanjay Gupta v. State Of Himachal Pradesh

2012-05-14

KULDIP SINGH

body2012
JUDGMENT : Kuldip Singh, J. This revision has been filed against order dated 13.12.2011 passed by learned Special Judge, Kinnaur Sessions Division at Rampur Bushahr in case No. 44-K/4 of 2007. 2. The facts according to the petitioner are that a case under Sections 465, 467 and 471 IPC and Section 13 (2) of the Prevention of Corruption Act, 1988 (for short Act) has been registered at the Police Station Anti-Corruption Zone, Shimla vide FIR No. 2 of 1996 dated 1.7.1996. The State Vigilance Department had submitted a final report under Section 173 Code of Criminal Procedure, 1973 (for short Code) in February, 2002 in the Court of learned Special Judge, Rampur. It was stated that the competent authority after examining the matter had declined to grant sanction for prosecution and as such, untraced report was filed. 3. The State vigilance Department after about 15 days of the filing of the report under Section 173 of the Code, filed an application under Section 173 (8) of the Code to further investigate the matter. The High Court on 12.12.2003 held that the State is at liberty to re-investigate the matter. 4. The petitioner filed CWP No. 279 of 2004 praying investigation by C.B.I. The State during the pendency of the writ petition, handed over the investigation to State Crime Investigation Department (C.I.D.) on 24.12.2005. In view of this development, the petitioner had withdrawn the writ petition. 5. The case was investigated by the C.I.D. and after conclusion of investigation, the C.I.D. found that there was no case made out against the petitioner, a cancellation report dated 4.5.2007 was filed in the Court of learned Special Judge. 6. The petitioner had been issued charge sheet under Rule 8 of All India Services (Discipline & Appeal) Rules, 1969 on 14.8.2003. The charge sheet was on the same allegations as contained in FIR No. 2 of 1996 dated 1.7.1996. The said charge sheet was later-on withdrawn vide order dated 15.5.2007. 7. On 29.8.2007 the statement of complainant Sunder Lal, the then Deputy Superintendent of Police (Vigilance), who investigated the case, was recorded before the learned Special Judge. He had no objection if FIR No. 2 of 1996 was cancelled. The said charge sheet was later-on withdrawn vide order dated 15.5.2007. 7. On 29.8.2007 the statement of complainant Sunder Lal, the then Deputy Superintendent of Police (Vigilance), who investigated the case, was recorded before the learned Special Judge. He had no objection if FIR No. 2 of 1996 was cancelled. On 12.11.2008 the Vigilance Department of the State moved an application through the Superintendent of Police, State Vigilance and Anti-Corruption Bureau, Shimla for returning the cancellation report on the ground that the authorities had inadvertently put up the cancellation report and the same be allowed to be withdrawn for seeking prosecution sanction. 8. The aforesaid application was allowed by the learned Special Judge on 7.8.2009 by treating the application under Section 173 (8) of the Code. The petitioner assailed the order dated 7.8.2009 in Criminal Revision No. 147 of 2009, the High Court set-aside the order dated 7.8.2009 and remanded the case to learned Special Judge for decision afresh in accordance with law. 9. The State Vigilance and Anti Corruption Bureau filed another application dated 11.3.2011 in the Court of learned Special Judge, Rampur, purportedly under Section 173 (8) of the Code with a limited purpose for obtaining prosecution sanction. The learned Special Judge on 13.12.2011 has allowed the application dated 11.3.2011. The order dated 13.12.2011 has been assailed by the petitioner in revision. 10. It has been stated that order dated 13.12.2011 is in violation of order dated 9.3.2010 passed in Criminal Revision No. 147 of 2009. The prayer in both the applications dated 12.11.2008 and 11.3.2011 are same. The learned Special Judge has erred in holding that the prayer seeking prosecution sanction in application dated 11.3.2011 to be an application under Section 173 (8) of the Code, which is contrary to judgment dated 9.3.2010. 11. The discovery of new fact oral or documentary is a sine qua non for application under Section 173 (8) of the Code. The application dated 11.3.2011 does not disclose any such ingredient as required under Section 173 (8) of the Code. The order dated 13.12.2011 holding the application dated 11.3.2011 to be an application under Section 173 (8) of the Code is wrong and illegal. 12. The learned Special Judge has wrongly held that seeking of prosecution sanction is part of investigation. The prosecution sanction is not required when closure report is to be filed. The order dated 13.12.2011 holding the application dated 11.3.2011 to be an application under Section 173 (8) of the Code is wrong and illegal. 12. The learned Special Judge has wrongly held that seeking of prosecution sanction is part of investigation. The prosecution sanction is not required when closure report is to be filed. The investigation rested with the State C.I.D. and not State Vigilance Bureau. The application dated 11.3.2011 filed by Anti Corruption Zone, Shimla is not maintainable. The learned Special Judge had no jurisdiction to allow the application dated 11.3.2011. 13. Heard. The learned counsel for the petitioner has submitted that the learned Special Judge has not complied the judgment dated 9.3.2010 of the High Court in Criminal Revision No. 147 of 2009. It has been argued that the State C.I.D. has submitted cancellation report dated 4.5.2007. On 29.8.2007 the statement of complainant Sunder Lal, the then Deputy Superintendent of Police (Vigilance), who investigated the case, was recorded before the learned Special Judge. He had no objection for cancellation of FIR No. 2 of 1996 dated 1.7.1996. The sanction is not part of further investigation for purposes of Section 173 of the Code and, therefore, no permission can be granted seeking permission for further investigation. 14. It has been contended that the application filed by the Superintendent of Police, Vigilance and Anti Corruption Bureau (SR), Shimla on 12.11.2008 for return of cancellation report for seeking prosecution sanction is without jurisdiction. The application dated 11.3.2011 filed by the SHO, SV & ACB, Police Station, Shimla under Section 173 (8) of the Code for further investigation for obtaining prosecution sanction is also without jurisdiction. The learned counsel for the petitioner has prayed for setting aside the impugned order. 15. On behalf of the respondent, it has been submitted that the petitioner has no right to challenge the impugned order. It has been contended that permission to obtain sanction is part of investigation. The report is under Section 173 of the Code. The sanction to prosecute the accused is generally filed alongwith charge sheet. The prosecution has simply sought the permission for further investigation for obtaining prosecution sanction to prosecute the petitioner. 16. It has been contended that permission to obtain sanction is part of investigation. The report is under Section 173 of the Code. The sanction to prosecute the accused is generally filed alongwith charge sheet. The prosecution has simply sought the permission for further investigation for obtaining prosecution sanction to prosecute the petitioner. 16. The Supreme Court in Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. and others, (1999) 5 SCC 740 , has held that power of the police to conduct further investigation, after laying final report, is recognised under Section 173 (8) of the Code. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation. In such a situation the power of the Court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173 (8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. 17. In Narender G. Goel v. State of Maharashtra and another, (2009) 6 SCC 65 , the Supreme Court has held that it is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. The application filed on 12.11.2008 is for return of cancellation report so that prosecution sanction is obtained. The application dated 11.3.2011 is under Section 173 (8) of the Code seeking permission to conduct further investigation for obtaining prosecution sanction. The cancellation report is to be considered by the Court, similarly, further investigation, if any, under Section 173 (8) of the Code is to be ordered by the Court. The accused does not come into picture for returning the cancellation report and also for ordering further investigation under Section 173 (8) of the Code. The cancellation report is to be considered by the Court, similarly, further investigation, if any, under Section 173 (8) of the Code is to be ordered by the Court. The accused does not come into picture for returning the cancellation report and also for ordering further investigation under Section 173 (8) of the Code. It is between the Court and the investigating agency to return the cancellation report or allow further investigation. The petitioner, therefore, has no locus-standi to oppose both the applications. 18. The stand of the petitioner is that on 12.11.2008 the application has been filed by the Superintendent of Police, Vigilance and Anti Corruption Bureau (SR), Shimla and application dated 11.3.2011 filed by the SHO, SV & ACB, Police Station, Shimla are without jurisdiction. The application filed on 12.11.2008 cannot be considered an application under Section 173 (8) of the Code in view of judgment dated 9.3.2010 in Criminal Revision No. 147 of 2009. The application filed on 12.11.2008 and application filed on 11.3.2011 under Section 173 (8) of the Code have been filed by the agencies other than investigating agency which are not competent to file such applications. The further investigation on the basis of application dated 11.3.2011 cannot be made. The learned counsel for the petitioner has relied K. Chandrasekhar v. State of Kerala and others, AIR 1998 SC 2001 . 19. The application filed on 12.11.2008 has been reproduced in the judgment dated 9.3.2010 in Criminal Revision No. 147 of 2009. The learned Single Judge has held that Section 173 of the Code does not contemplate the kind of application which has been moved by the prosecution and which has been dubbed to be one under Section 173 (8) of the Code. The learned Single Judge on 9.3.2010 has set-aside the order dated 7.8.2009 of the Special Judge when he treated the application filed on 12.11.2008 an application under Section 173 (8) of the Code and remanded the case. It was submitted on behalf of the State before the learned Single Judge that the challan was ready and only sanction of the appropriate authority was required. On receipt of sanction further proceedings will commence against the petitioner. The learned Single Judge observed that it will be open to the prosecution to take any such or further steps in accordance with law as may be permissible. 20. On receipt of sanction further proceedings will commence against the petitioner. The learned Single Judge observed that it will be open to the prosecution to take any such or further steps in accordance with law as may be permissible. 20. The Supreme Court in K. Chandrasekhar (supra) has held that investigation undertaken by C.B.I. pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that further investigation is a continuation of such investigation which culminates in a further police report under sub-section (8) of Section 173. It necessarily means that withdrawal of consent in the instant case would not entitle the State Police, to further investigate the case. To put it differently, if any further investigation is to be made it is the CBI alone which can do so, for it was entrusted to investigate into the case by the State Government. Resultantly, the notification issued withdrawing the consent to enable the State Police to further investigate the case is patently invalid and unsustainable in law. 21. In the present case, the investigation remained with the State. The investigation in the case was conducted by the State C.I.D. The application filed on 12.11.2008 has been held in the judgment dated 9.3.2010 not to be an application under Section 173 (8) of the Code. The application dated 11.3.2011 has been filed by the SHO, SV & ACB, Police Station, Shimla. The State Vigilance and Anti Corruption Bureau is also an agency of the State for investigation. 22. The judgment dated 9.3.2010 indicates that it was never the stand of the petitioner that application filed on 12.11.2008 was filed by an investigating agency other than the State C.I.D. In the context of application filed on 12.11.2008, in the judgment dated 9.3.2008 it has been stated that State has moved an application for recalling the cancellation report. In other words, application filed on 12.11.2008 by the Superintendent of Police, State Vigilance and Anti Corruption Bureau (SR), Shimla has been treated to be an application filed by the State. The application dated 11.3.2011 under Section 173 (8) of the Code has been filed by SHO, SV & ACB, Police Station, Shimla, an officer of the State, therefore, this application will be deemed to have been filed by the State. The application dated 11.3.2011 under Section 173 (8) of the Code has been filed by SHO, SV & ACB, Police Station, Shimla, an officer of the State, therefore, this application will be deemed to have been filed by the State. The State C.I.D. has never disputed or contested the application filed on 12.11.2008 and application dated 11.3.2011. In these circumstances, the application filed on 12.11.2008 and application dated 11.3.2011 can be safely to be taken filed by the competent investigating agency and no fault can be found with the filing of these two applications. 23. It is common knowledge that invariably sanction to prosecute the public servant is filed on completion of investigation along with charge sheet. Section 19 of the Act provides that no Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 except with the previous sanction. In the present case, admittedly there is no sanction under Section 19 to prosecute the petitioner though sanction to prosecute co-accused has been given. At one stage of the case untraced report was filed. On 12.12.2003 in Criminal Revision No. 52 of 2003 the High Court allowed re-investigation of the case. After re-investigation, cancellation report dated 4.5.2007 was filed in the trial Court. As noticed above, thereafter, application was filed on 12.11.2008 for return of final report and another application dated 11.3.2011 under Section 173 (8) of the Code was filed for further investigation. 24. There is no force in the contention of learned counsel for the petitioner that obtaining of sanction by the investigating agency is not part of investigation. At the end of investigation, the papers are placed by the Investigating Officer before the authority competent to give sanction and thereafter competent authority either gives or refuses to give sanction to prosecute public servant. Therefore, it cannot be said that obtaining of sanction by Investigating Officer from the competent authority to prosecute a public servant is not part of investigation. There is no sanction of the competent authority to prosecute the petitioner under Section 13 of the Act. The respondent, therefore, has filed the applications before the Court below for returning of final report and permission to further investigate under Section 173 (8) Cr.P.C. for obtaining sanction. 25. In Abhinandan Jha and others v. Dinesh Mishra, AIR 1968 SC 117 , the Supreme Court has held as follows:- "15. The respondent, therefore, has filed the applications before the Court below for returning of final report and permission to further investigate under Section 173 (8) Cr.P.C. for obtaining sanction. 25. In Abhinandan Jha and others v. Dinesh Mishra, AIR 1968 SC 117 , the Supreme Court has held as follows:- "15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report as we have already indicated, is called, in the area in question, as a final report? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under Section 156 (3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156 (3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190 (1) (b), notwithstanding the contrary opinion of the police, expressed in the final report". "18. We have already pointed out that the investigation, under the Code, takes in several aspects, and 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 dependent 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. 19. The question can also be considered from another point of view. Supposing the police send a report, viz., a charge-sheet, under Section 170 of the Code. As we have already pointed out the Magistrate is not bound to accept that report, when he considers the matter judicially. But can he differ from the police and call upon them to submit a final report, under Section 169? In our opinion, the Magistrate has no such power. If he has no such power, in law, it also follows that the Magistrate has no power to direct the police to submit a charge-sheet, when the police have 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. 20. Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial". It thus follows that under Section 173 (8) investigating agency can be permitted to further investigate the matter. The investigating agency cannot be directed to submit a charge-sheet. The filing of the final report/ charge-sheet in the Court is within the domain of the investigating agency. The Court is not bound by the opinion of the investigating agency in final report. The Court is competent to proceed on the basis of the material on record and take cognizance or proceed further in accordance with law. It is premature for the trial Court to consider the closure report in absence of sanction to prosecute the petitioner. 26. The Court is not bound by the opinion of the investigating agency in final report. The Court is competent to proceed on the basis of the material on record and take cognizance or proceed further in accordance with law. It is premature for the trial Court to consider the closure report in absence of sanction to prosecute the petitioner. 26. At one stage of this case on 12.12.2003 in Criminal Revision No. 52 of 2003 the request of State under Section 173 (8) of the Code for further investigation was refused by the Court below, the High Court has held as follows:- "A simple request of the Investigating Agency for permission to reinvestigate the case in terms of Section 173 (8) of the Code has unnecessarily been dragged on, time and again, and this unnecessary postponement of that consideration of the request has resulted in the State filing the present Revision in this Court against the order dated 29th March, 2003. Actually I wish to go as far as to say that in considering the aforesaid request of the State for reinvestigation, the learned Court below wrongly issued notices to the respondents-accused persons because it is the admitted legal position that at that stage of the investigation they had no right of being heard, nor of being issued any notices from the Court. Under sub-section (8) of Section 173 of the Code, the State has the power to re-investigate. That was the only request the State was making. In my considered opinion, the learned Court below should have straightway allowed the application filed by the Investigating Agency. Once the re-investigation is done and a fresh report under Section 173 (2) is filed, how would the Court proceed thereafter is a matter which cannot presently fall for consideration nor did it fall for the consideration of the Court below at the relevant time". 27. In State of Goa v. Babu Thomas, (2005) 8 SCC 130 , it has been held that when the Special Judge took cognizance on 29.5.1995 there was no sanction order under the law authorising him to take cognizance. This is a fundamental error which invalidates the cognizance as without jurisdiction. In the present case also, the trial Court as against the petitioner in absence of sanction under Section 19 of the Act, has no jurisdiction to take cognizance under Section 13 of the Act. This is a fundamental error which invalidates the cognizance as without jurisdiction. In the present case also, the trial Court as against the petitioner in absence of sanction under Section 19 of the Act, has no jurisdiction to take cognizance under Section 13 of the Act. The application filed on 12.11.2008 before the trial Court for return of cancellation report has become infructuous in view of filing of application dated 11.3.2011 under Section 173 (8) of the Code. Thus, State is allowed to further investigate the case under Section 173 of the Code for obtaining prosecution sanction for prosecuting the petitioner in accordance with law. If for the purposes of further investigation the State needs any particular documents which it might have filed along with the earlier final report, it shall be open to the State to apply to the Court for return of such documents. On such application filed, the trial Court shall return the documents to the State after retaining photocopies of such documents. The matter cannot be allowed to remain in limbo for indefinite period. The case started in the year 1996 and already 16 years are over and case is tossing from one place to another place. The time has come to expeditiously conclude the matter this way or that way in accordance with law. 28. In view of above discussion, the petition is dismissed. The parties through their counsel are directed to appear before the trial Court on 29.5.2012. The record of the case be returned to the trial Court immediately, so as to reach before the date fixed. The pending application, if any, is also disposed of.