Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 780 (GAU)

Archana Varma v. State of Assam

2015-06-19

C.R.SARMA

body2015
JUDGMENT : C.R. Sarma, J. 1. As the above cited criminal petitions have arisen out of the common order, dated 21.08.2013, involving the same questions of law, based on similar facts, for the sake of convenience and as agreed to by the learned counsel, appearing for the parties. I have heard the said criminal petitions together and propose to dispose of this set of six criminal petitions, by this common order. Smti. Renu Dutta Baruah and Smti. Asomee Dutta Baruah, as complainants, filed a complaint case being complaint case No. 02 of 2012 before the learned Special Judge, Assam, Guwahati bringing certain allegations relating to corruption against the petitioners, who were the public servants at the relevant time. On receipt of the said complaint, the learned Special Judge, Assam, Guwahati, by order, dated 21.08.2012, passed in complaint case No. 2 of 2012 came to the findings that the accusation made against the accused persons i.e. the petitioners indicated commission of the offences under the Indian Penal Code and the Prevention of Corruption Act, 1988 (for short P.C. Act) and the learned Special Judge, exercising jurisdiction under Section 156(3) Cr.P.C., forwarded the complaint petition to the Superintendent of Police, Anti-Corruption Bureau (for short 'ACB') P.S. to register a case under appropriate provision of Indian Penal Code and the provision of P.C. Act, 1988, for investigation and fixed the matter for report on 26.09.2012. 2. Aggrieved by the said order, the petitioners aforesaid have come up with the present quashing proceedings under Section 482 Cr.P.C. on the grounds that the impugned order dated 21.08.2012 cannot be maintained for want of sanction as required under Section 19(3) of the RC. Act, 1988, inasmuch as, the petitioners (accused persons) are public servants. 3. I have heard the learned counsel appearing for both the parties and perused the impugned order. Mr. N. Duta, learned Senior Counsel assisted by Mr. N.N.B. Choudhury, learned counsel for the petitioner, in criminal petition No. 578/2012, referring to the order, dated 13.05.2015, passed by this Court in Criminal petition No. 76/2014, has submitted that the present petitions are covered by the said order. Mr. N. Duta, learned Senior Counsel assisted by Mr. N.N.B. Choudhury, learned counsel for the petitioner, in criminal petition No. 578/2012, referring to the order, dated 13.05.2015, passed by this Court in Criminal petition No. 76/2014, has submitted that the present petitions are covered by the said order. On behalf of the petitioners it has been submitted that, in view of requirement of sanction, as provided by section 19 of the P.C. Act, 1988, taking of cognizance without previous sanction is unlawful and that the learned Special Judge ought not to have taken note of the private complaint without prior sanction order. It is also submitted that for passing a direction under Section 156(3) Cr.P.C., for causing investigation in respect of an offence under the P.C. Act, prior sanction is necessary and that the said requirement cannot be dispensed with even at the pre cognizance stage. The learned senior counsel has submitted that the order passed under section 156(3) Cr.P.C. without recording the reasons warranting an order under Section 156(3) Cr.P.C. is bad in law. In view of above, the learned senior counsel has submitted that the impugned order dated 21.08.2012, is liable to be set aside and the proceedings arising thereof, are also liable to be quashed. The learned senior counsel, in support of his contention, has referred to the decisions held in the cases of (1) Criminal Appeal Nos. 1590-1591 of 2013 (Anil Kumar & Ors. Vs. M.K. Aiyappa & Anr.), reported in (2013) 10 SCC 705 , (2) (Ramdev Food Production Private Limited Vs. State of Gujarat), (3) SC, Criminal Appeal No. 781/2012 (Mrs. Priyanka Srivastava & Anr. Vs. State of Uttar Pradesh & Ors., (Harshendra Kumar D. Vs. Rebatilata Koley Etc. 4. Mr. S. Sarma, learned Additional Advocate General, Assam, appearing on behalf of the State, referring to the Government Affidavit dated 6.10.2012, filed in criminal petition No. 578/2012, has submitted that continuation of the investigation without following due procedure of law is not permissible and that in order to protect the honest and sincere public servants, government sanction under Section 19 of the P.C. Act, prior to taking any action against public servant, is necessary and that the present proceeding is bad for want of said sanction. 5. The learned counsel, appearing for the petitioners in the other criminal petitions aforesaid, while adopting the argument advance by Mr. 5. The learned counsel, appearing for the petitioners in the other criminal petitions aforesaid, while adopting the argument advance by Mr. N. Dutta, learned senior counsel have submitted that the order is hit by Section 19 of the P.C. Act, 1988 and Section 156(3) Cr.P.C. and as such the same is liable to be set aside. Mr. K. Munir, learned Addl. P.P. has fairly submitted that, for initiating a proceeding under the P.C. Act sanction under section 19 of the P.C. Act is mandatory and the order passed under Section 156(3) Cr.P.C. should indicate the reasons for passing such direction. 6. In the case of Anil Kumar and others, the learned Special Judge, on receipt of a complaint directed the Deputy Superintendent of Police, Karnataka Lok Ayukta, in exercising power under Section 153(3) Cr.P.C., to cause an investigation in respect of allegations of corruption made in the complaint against public servants. The allegations involved offences under the penal code as well as the P.c. Act, 1988. Aggrieved by the order, passed by the Special Judge, under Section 153(3) Cr.P.C., the accused persons approached the High Court by filing a writ petition. The High Court after hearing both the parties held that the learned Special Judge could not have taken notice of the private complaint without sanction irrespective of whether the Court was acting at a pre-cognizance stage or post cognizance stage. Accordingly the High Court quashed the order passed by the learned Special Judge as well as the complaint filed against the appellants. Aggrieved by the said order the matter was taken to the Supreme Court by filing the appeal. While dismissing the appeals the Supreme Court upheld the order passed by the High Court. The Supreme Court while discussing the scope of Section 156(3) Cr.P.C., observed as follows:- "The scope of above mentioned provision came up for consideration before this Court in several cases. This Court in Maksud Saiyed case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) of Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case. The Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind bys the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected N.B. Maksud Saiyed Vs. State of Gujarat and Ors., (2008) 5 SCC 668 in the order will not be sufficient. After going through the complaint documents and hearing the complainant, what weighted with the Magistrate to order investigation under Section 156(3) Cr.P.C. should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation." 7. From the above, there is no difficulty in understanding that an order, passed under Section 156(3) Cr.P.C., for causing investigation in respect of offences under the P.C. Act must be preceded by a sanction order, as required by Section 19 of the P.C. Act. Though the Special Judge or a Magistrate, as the case may be, have power to pass an order for investigation under Section 156 Cr.P.C., the requirement of sanction as provided by Section 19 of the P.C. Act cannot be dispensed with. Therefore, sanction under section 19 of the P.C. Act is a prerequisite, even in the case of a definite complaint against an erring public servant. 8. In the case of Ramdev Food Production, the order of the Magistrate refusing to issue any direction for investigation under Section 156(3) Cr.P.C. was upheld by the High Court and the Supreme Court. In deciding the said case the Supreme Court referred to the decision held in the case of Anil Kumar and Maksud Saiyed (Maksud Saiyed Vs. State of Gujarat & Ors., (2008) 5 SCC 668 ). 9. In the case of Priyanka Srivastava (Supra), the Supreme Court, referring to the case of Anil Kumar (Supra.), the case of Dilwar Singh Vs. State of Delhi, reported in (2007) 12 SCC 496 and the case of Lalita Kumari Vs. Govt. of U.P. reported in (2014) 2 SCC 1 observed that the power under Section 156(3) Cr.P.C. warrants application of judicial mind and that the litigant at his own whim cannot invoke the authority of the Magistrate. State of Delhi, reported in (2007) 12 SCC 496 and the case of Lalita Kumari Vs. Govt. of U.P. reported in (2014) 2 SCC 1 observed that the power under Section 156(3) Cr.P.C. warrants application of judicial mind and that the litigant at his own whim cannot invoke the authority of the Magistrate. The Supreme Court also held that there has to be prior applications under Sections 154(1) and 154(3) Cr.P.C. while filing a petition under 156(3) Cr.P.C. and that the application under Section 156(3) Cr.P.C. is to be supported by an affidavit. 10. In the case of Rajib Kumar Bhuyan, the respondent No. 2, as complainant, filed a complaint before the learned Special Judge, Guwahati, alleging therein that the Executive Engineer, Mongaldoi Water Resources Division demanded money for allotment of work order. On receipt of the said complaint, the learned Special Judge, Assam, exercising jurisdiction under Section 156(3) Cr.P.C. sent the case to the Superintendent of Police, Chief Minister's Vigilance Cell with a direction to register a case under appropriate provision of the P.C. Act, 1988, and submit report within one month after investigation. 11. Aggrieved by the said order the accused petitioner approached this Court by filing an application under Section 482 Cr.P.C. This Court by order, dated 13.05.2015, referring to the decisions held in the case of Anil Kumar (Supra) held that an order passed under Section 156(3) Cr.P.C. for causing investigation in respect of offences under the P.C. Act must be preceded by a sanction order, as required by Section 19 of the P.C. Act and that while passing an order under Section 156(3) Cr.P.C. the requirement of sanction under Section 19 of the P.C. Act cannot be dispensed with. As there was no sanction in the said case, this Court set aside the impugned order, dated 17.06.2013, by which the learned Special Judge directed the police to register a case and investigate into the matter. In view of the above decisions laid down by the Supreme Court and the statutory provision, it is found that the learned Special Judge passed the order under Section 156(3) Cr.P.C. mechanically without applying his mind and without receding the reasons warranting a direction under Section 156(3) Cr.P.C. That apart, the impugned order was passed without prior sanction under Section 19 of the P.C. Act, which was a mandatory statutory requirement in respect of the petitioners, who are public servants. Therefore, I find sufficient merit in the present set of criminal petitions. Accordingly, the impugned order dated 21.08.2013 is set aside. In the result, the proceedings arising out of the said order stand quashed. No order as to costs.