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Allahabad High Court · body

2014 DIGILAW 20 (ALL)

SHAFIQ AHMAD v. STATE OF U. P.

2014-01-03

ADITYA NATH MITTAL

body2014
JUDGMENT Hon’ble Aditya Nath Mittal, J.—Heard learned counsel for the petitioners, learned AGA and perused the record. This writ petition has been filed with the prayer to quash the order dated 17.10.2013 passed by Chief Judicial Magistrate, Allahabad as well as the order dated 13.12.2013 passed by learned Sessions Judge, Allahabad. 2. Learned counsel for the petitioners has submitted that the petitioners are public servant therefore, no First Information Report can be lodged against them without prior sanction of the State Government. It has also been submitted that by U.P. Amendment of Section 197 Cr.P.C., the provisions of Section 197(3) Cr.P.C. are applicable to the U.P. Police Force as well as U.P. Pradeshik Armed Constabulary. Learned counsel for the petitioners has relied upon Anil Kumar and others v. M.K. Aiyappa and another (Criminal Appeal Nos. 1590-1591 of 2013) in which Hon’ble the Apex Court has held as under : “13. 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. Sub-section (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 Judgements referred to herein above, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra). 14. Further, this Court in Criminal Appeal No. 257 of 2011 in the case of General Officer, Commanding v. CBI and opined as follows: “Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him......... If the law requires sanction, and the Court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.” 3. Learned AGA has defended the impugned orders. The opposite party No. 2 moved an application under Section 156(3) Cr.P.C. alleging that Ram Avadh Patel alias Jagga had died while he was in police custody and he was tortured by the police personnels. The said application was allowed by Chief Judicial Magistrate, Allahabad by order dated 17.10.2013. The said order was challenged by the State Government in Criminal Revision No. 398 of 2013. Learned Sessions Judge, Allahabad has rejected the revision at the admission stage on the ground that the revision does not lie because it was an interlocutory order as well as the proposed accused persons had not challenged the said order of the Chief Judicial Magistrate. Learned Sessions Judge, Allahabad also observed that learned DGC (Criminal) could not show any case law on the point that a revision against the application under Section 156(3) Cr.P.C., which has been allowed, is maintainable. 4. In Father Thomas v. State of U.P. and others, 2011 (72) ACC 564, Full Bench of this Court has held as under : “We thus see that orders for investigation are only an ancillary step in aid of the investigation or trial, and are clearly interlocutory in nature, similar to orders granting bail, or calling for records, or issuing search warrants, or summoning witnesses and other like matters which infringe no valuable rights of the prospective accused, and are not amenable to challenge in a criminal revision, in view of the bar contained in Section 397(2) of the Code.” It has been further held as under: “64. In this view of the matter, the opinion of the Full Bench on the three questions posed is: 65. (A) The order of the Magistrate made in exercise of powers under Section 156(3) Cr.P.C. directing the police to register and investigate is not open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued. (A) The order of the Magistrate made in exercise of powers under Section 156(3) Cr.P.C. directing the police to register and investigate is not open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued. (B) An order made under Section 156(3) Cr.P.C. is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of Section 397 of the Code of Criminal Procedure, 1973. (C) The view expressed by a Division Bench of this Court in the case of Ajay Malviya v. State of U.P. and others, that as an order made under Section 156(3) Cr.P.C. is amenable to revision, and no writ petition for quashing an FIR registered on the basis of the order will be maintainable, is not correct.” 5. In CBI v. State of Rajasthan, 2001 (2) JIC 931 (SC), Prof. Ram Naesh Chaudhary v. State of U.P., 2008(1) JIC 31 (All) and Pawan Kumar v. State of U.P., 2009(1) JIC 842 (All) (LB), it has been held that such order cannot be challenged by the prospective accused because the Code of Criminal Procedure no where provides that the Magistrate shall hear the accused before issuing such a direction. 6. Hon’ble Apex Court in Kiran Singh v. State, 1997 JIC 101 SC, has further held that the accused has no right to challenge such order until Court takes cognizance of the offence and issues process and the accused cannot be termed as an aggrieved person for purpose of Section 397 of the Code. 7. The authority relied on by the petitioners was also placed before the Sessions Judge, Allahabad. The said authority is regarding sanction order under Section 19 of Prevention of Corruption Act, 1988. The provisions of Section 19 of the Prevention of Corruption Act, 1988 are different than the provisions of Section 197 of the Code of Criminal Procedure. Under the provisions of Section 197 Cr.P.C., there is bar in taking the cognizance of any offence which has been committed by a public servant while acting or purporting the act in discharge of his official duty. In Prabhat Kumar Srivastava v. State of U.P. and another, 2007 Cri LJ 2228 (All) (LB), it has been held that Section 197 of Cr.P.C. and Section 19 of the Act operate in conceptually different fields. In Prabhat Kumar Srivastava v. State of U.P. and another, 2007 Cri LJ 2228 (All) (LB), it has been held that Section 197 of Cr.P.C. and Section 19 of the Act operate in conceptually different fields. In cases covered under the Act, in respect of public servants, the sanction is of automatic nature and thus factual aspects are of little or no consequence. Conversely, in a case relatable to Section 197 of the Code, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus with the discharge of duties. Position is not so in case of Section 19 of the Act. 8. In the present case, the Court has not taken cognizance of the matter but has simply allowed the application under Section 156(3) Cr.P.C. and the matter is yet to be investigated. Certainly, the said sanction under Section 197 Cr.P.C. may be required if the petitioners are found guilty during the investigation and the charge-sheet is filed against them. The said law relied on by the learned counsel for the petitioners in Anil Kumar and others v. M.K. Aiyappa and another (supra) is not applicable in the present matter because in that matter the Magistrate had referred a private complaint for investigation by Deputy Superintendent of Police and Karnatka Lok Ayukta in exercise of power confers under Section 156(3) Cr.P.C. for production of valid sanction order under Section 19 of the Prevention of Corruption Act, 1988. The present matter is not a matter of Prevention of Corruption Act. It is also settled law that the proposed accused cannot challenge the order by which the case has been registered against him. For the facts and circumstances mentioned above, I do not find any substance in the submission of learned counsel for the petitioners. The petition is dismissed. However, the petitioners shall have the liberty to raise this issue of sanction at the stage of framing of charge.