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2014 DIGILAW 425 (ORI)

Rama Chandra Rath v. State of Orissa

2014-07-16

S.K.MISHRA

body2014
JUDGMENT S.K. MISHRA, J. 1. The petitioner being the accused in V.G.R. No. 13 of 2007 of the Court of Special Judge (Vigilance), Balasore assails the order dated 15.4.2010 passed by that Court taking cognizance of the offence under Section 13(1)(d) read with Section 13(2) and Section 7 of the Prevention of Corruption Act, 1988 (for short the P.C. Act) and issuing process against the petitioner. 2. The facts are not in dispute. It may be summarized as follows:- On 27.4.2007, Balasore Vigilance P.S. Case No. 13 of 2007 was registered under Section 7 of the P.C. Act on the information of One Rounak Bibi against the petitioner Ram Chandra Rath, ASI of Police, Permitghat Outpost, Balasore for demanding illegal gratification of Rs. 500. The informant has stated that she had lodged FIR and Balasore P.S. Case No. 40 of 2007 has been registered. Investigation of the case was entrusted to the accused-petitioner. The petitioner demanded bribe to make a strong against the accused persons in the case. H.K. Behera, DSP of Vigilance, Balasore was directed to take up investigation. On 27.4.2007, a trap was laid and in presence of overhearing witness, the petitioner accepted bribe from the complainant. Thereafter, the Vigilance Police arrested him and on 28.4.2007, the accused was forwarded to the Court. On 3.5.2007, he was released on bail. On 29.8.2007, statement of overhearing witness Puma Chandra Sethi was recorded under Section 164 of Cr. P.C. by the learned JMFC, Balasore. On 20.9.2007, the Investigating Officer submitted DR recommending case for charge-sheet against the accused for the offence under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C. Act. On 22.9.2007, Special Public Prosecutor gave opinion for filing of charge-sheet. On 29.9.2007, order was received from the Directorate, Vigilance for returning the case as FRT and to move the authority for initiation of departmental action against the accused. On 29.9.2007, FRT No. 37 dated 29.9.2007 under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C. Act was filed. On 8.11.2007, the said FRT was received in the Court of CJM. Case record was sent to the Court of Special Judge (Vigilance), Balasore for action. On 8.11.2007 itself, notice was issued to the complainant by the learned Special Judge for filing protest petition. On 19.1.2008, protest petition was filed by Rounak Bibi. The learned Special Judge held that sanction has not been obtained. Case record was sent to the Court of Special Judge (Vigilance), Balasore for action. On 8.11.2007 itself, notice was issued to the complainant by the learned Special Judge for filing protest petition. On 19.1.2008, protest petition was filed by Rounak Bibi. The learned Special Judge held that sanction has not been obtained. So, he directed for investigation and to obtain sanction from the competent authority. On 26.2.2009, the learned Special Judge wrote a letter to the Superintendent of Police (Vigilance), Balasore for submission of sanction order in the case. 3. For better appreciation of the case, the entire letter issued by the learned Special Judge is quoted hereunder. "OFFICE OF THE SPECIAL JUDGE (VIGILANCE) – BALASORE No. 115 Date – 26.2.2009 From: Sri B.S. Mohapatra, Special Judge, (Vigilance) Balasore To, The Superintendent of Police, (Vigilance), Balasore Subject – Submission of sanction order in V.G.R. Case No. 13 of 2007 Sir, I am to state that in the aforesaid case, final report has been submitted against which the informant has filed protest petition. On perusal of the case record, it reveals that there are materials against the accused person who is a government servant. Therefore, I would like to request you to obtain sanction order from the competent authority and send the same to this Court by 19.3.2009 in absence of which progress in the case cannot be achieved. Treat it as most urgent. Yours faithfully Special Judge (Vigilance), Balasore" 4. On 13.11.2009, the DCP, Vigilance, Bhubaneswar sent a telegram to the SP, Vigilance for deputing I.O. to the office on 16.11.2009 for discussion of pre-sanction. On 16.11.2009, sanction was accorded for prosecuting the petitioner. On 17.11.2009 sanction order was sent to the Court. On 6.2.2010, sanction order was received in the Court of Special Judge (Vigilance) and the case stood adjourned to 15.4.2010. On that date, the learned Special Judge after perusing the FIR, case diary, sanction order and other relevant papers including the protest petition found a prima facie case under Section 13(1)(d) read with Sections 13(2) and 7 of the P.C. Act against the accused and took cognizance and issued summons. This order is assailed in this revision. 5. In course of hearing, the learned counsel for the petitioner relying upon the case of Krishandutt Sharma vs. State of Rajasthan, 1998 Cri. This order is assailed in this revision. 5. In course of hearing, the learned counsel for the petitioner relying upon the case of Krishandutt Sharma vs. State of Rajasthan, 1998 Cri. L.J. 3520 has contended that when the Investigating Officer has filed final report against the petitioner, the order passed by the learned Magistrate for further investigation and getting sanction is not proper. On the other hand, the learned Standing Counsel for the Vigilance Department submitted that issuing of letter is not proper but the competent authority has accorded sanction after perusal of the record and it reveals that a prima facie case against the accused and informant has filed the protest petition and not agreed with the final report. In the interest of justice, the order of cognizance should not be inferred with. Alternatively, it is submitted by her that the accused is still in service and the police can still direct to further investigation of the case after obtaining the sanction and ignoring the letter of the learned Special Judge in that regard. She further submitted that the Hon'ble Supreme Court in a number of decisions has interfered where the Court tried to control the manner of investigation and set aside the portion of the direction but allowed further investigation to be conducted. 6. In the case of Abhinanadna Jha vs. Dinesh Mishra, AIR 1968 SC 177, the Apex Court held that the protest petition of the complainant could have been treated as complaint and the direction of the Magistrate to file charge-sheet was set aside. In the reported case, the final report was submitted and the complainant filed (in two cases) protest petitions and it was not clear whether the Magistrate had adopted suitable procedure indicated in the Code when he takes cognizance of offence on a complaint made to him. Therefore, the Apex Court held that the order of the Magistrate in each of the cases directing the police to file charge-sheet is without jurisdiction. It was made clear that it is open to the Magistrate to treat the protest petition as complaint and take further proceeding according to law and in the light of the views expressed by the Supreme Court in the reported case. 7. It was made clear that it is open to the Magistrate to treat the protest petition as complaint and take further proceeding according to law and in the light of the views expressed by the Supreme Court in the reported case. 7. In the case of India Carat Pvt. Ltd. vs. State of Karnataka, 1989 (2) SCC 132 , the Investigating Officer took up investigation and submitted report that further investigation was not required as the case was of a civil nature. When the Magistrate was approached to set aside the said report, he directed for registering a case and issue summons. The aggrieved parties approached the High Court, which set aside the order of Magistrate. The order of the High Court was challenged in the Apex Court. The Apex Court in the aforesaid case has held as follows:- The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer, and independently apply his mind to the facts emerging from the investigation and. take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(b) though it is open to him to act and under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him. The fact that this case the investigation had not originated from a complaint preferred to the Magistrate but had been made pursuant to a report given to the police would not alter the situation in any manner. Even if the appellant had preferred a complaint before the learned Magistrate and the Magistrate had ordered investigation under Section 156(3), the police would have had to submit a report under Section 173(2). It has been held in Tula Ram and Others vs. Kishore Singh, (1978) 1 SCR 615 , that if the police, after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process or in the alternative he can take cognizance of the original complaint and examine the complainant and his witnesses and thereafter issue process to the accused, if he is of opinion that the case should be proceeded with. In the light of our conclusion, the appeal succeeds and the order of the High Court is set aside. The order of the Second Additional Chief Metropolitan Magistrate, Bangalore will stand restored and the case against the second respondent will be proceeded further in accordance with law." 8. In UPSC vs. S. Papiah, 1997 (7) SCC 614 , the Hon'ble Supreme Court held that the procedure adopted by the Magistrate in accepting the final report of the CBI and closing the case without any notice to the appellant (informant) and behind its back is irregular and the order was set aside. 9. In the case of Vinay Tyagi vs. Irshad Ali @ Deepak and Others, 2013 (54) OCR (SC) 561: 2013 (I) OLR (SC) 953, the Hon'ble Supreme Court analyzed the provisions of the Code and various judgments and has come to the following conclusions in regard to the powers of the Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Cr. P.C. "1. The Magistrate has no power to direct reinvestigation or fresh investigation (de novo) in the case initiated on the basis of a police report. P.C. "1. The Magistrate has no power to direct reinvestigation or fresh investigation (de novo) in the case initiated on the basis of a police report. 2. A Magistrate has the power to direct further investigation and after filing of a police report in terms of Section 173(6) of the Code. 3. The view expressed in (2) above is in conformity with the principle of law stated in Bhagwant Singh's case (supra) by a three Judge Bench and thus in conformity with the doctrine of precedence. 4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8). 5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own. 6. It has been a procedure of proprietary that the police as to seek permission of the Court to continue further investigation and file supplementary charge-sheet. This approach has been approved by this Court in a number of judgments. This as such would support the view that we are taking in the present case." 10. Thus, it is abundantly clear from the aforesaid cases that the Magistrate or the Court taking cognizance of the offence has no power to take cognizance of offence as well as the jurisdiction to direct further investigation. Now, the question remains whether the Court can specifically direct the investigating agency by writing a letter to it to obtain sanction in the case and file charge-sheet. This question has been answered by the Single Judge of Rajasthan High Court in the case of Krishandutt Sharma (supra). In that reported case, a trap was laid by Dy. Now, the question remains whether the Court can specifically direct the investigating agency by writing a letter to it to obtain sanction in the case and file charge-sheet. This question has been answered by the Single Judge of Rajasthan High Court in the case of Krishandutt Sharma (supra). In that reported case, a trap was laid by Dy. S.P. & A.C.O.P. Nagaur while the petitioner was posted as B.D.O. in Panchayat Samiti, Ladnu in the district of Nagpur. Investigation of the case was subsequently handed over to the Additional S.P. & A.C.D. Ajmer under the direction of D.G.P. Jaipur. After investigation, a final report was submitted before the trial Court. The final report was duly endorsed by D.G.P. & A.C.D. Jaipur. The trial Court without discussing the material on record returned the final report to the investigating officer for prosecution against the petitioner. Hence, the order was challenged before the Rajasthan High Court and came for disposal before the Single Judge. The only question was required to determine 'in that case is whether the Court could have asked the Investigating Agency to get the sanction for prosecution. Relying upon the case of Mansukhlal Vithaldas Chauhan vs. State of Gujarat, AIR 1997 SC 3400 , the Court came to the conclusion that giving sanction for prosecution is exclusive domain of the authority. The Court cannot issue mandatory direction for according sanction. In the case of Mansukhlal Vithaldas Chauhan case (supra), the Apex Court held .that the sanctioning authority is to apply its own independent mind for the generation of genuine satisfaction and whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it for taking a decision one way or other. The Apex Court further held that such discretion to grant or not to grant sanction vests absolutely in the sanctioning authority and discretion should be shown to have not been affected by extraneous consideration. The Apex Court further held that such discretion to grant or not to grant sanction vests absolutely in the sanctioning authority and discretion should be shown to have not been affected by extraneous consideration. The Apex Court in the case of Mansukhlal Vithaldas (supra) further held that if sanctioning authority was unable to apply its independent mind for reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, then the order will be bad for the reason that the discretion of the authority (not to sanction) was taken away and it was compelled to act mechanically to sanction the prosecution. 11. In the case of Abhinandan Jha (supra), the Apex Court has held that 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 a final report has been submitted. The Magistrate mayor may not accept the report and take suitable action according to law. However, he cannot impinge upon jurisdiction of the police, by compelling them to change the opinion so as to accord with his view. The Hon'ble Supreme Court further observed that the information of the opinion by the police, is the final step in the investigation and that final step is to be taken by the police and no other authority. 12. In the present case, after going through the investigation, the materials were placed before the sanctioning authority by the Directorate of Vigilance. The Directorate of Vigilance has taken a decision that the final report should be submitted and due enquiry should be initiated against the petitioner. Therefore, the conduct of the learned Special Judge (Vigilance) in directing to obtain sanction and letter written to the S.P. of Vigilance to obtain sanction has put pressure on the sanctioning authority and therefore, the discretion of the sanctioning authority not to sanction was taken away and it was compelled to act mechanically to sanction the prosecution. In that view of the matter, this Court comes to the conclusion that the order impugned cannot be sustained and the revision has to be allowed. In the result, the revision is allowed. The order dated 15.4.2010 passed by the learned Special Judge (Vigilance), Balasore in V.G.R. No. 13 of 2007 is set aside and the petitioner is discharged from the charge for the aforesaid offence. In the result, the revision is allowed. The order dated 15.4.2010 passed by the learned Special Judge (Vigilance), Balasore in V.G.R. No. 13 of 2007 is set aside and the petitioner is discharged from the charge for the aforesaid offence. The revision application is disposed of accordingly. Revision disposed of.