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Gauhati High Court · body

2015 DIGILAW 784 (GAU)

Pronab Baruah v. State of Assam and Ors.

2015-06-19

C.R.SARMA

body2015
1. The complainant filed a private complaint, being complaint case No. 14 of 2013 against the accused petitioner, who was a public servant, bringing allegations of corruption. On receipt of the said complaint, the learned Special Judge, Assam, by order, dated 20.11.2013, exercising power conferred by Section 156(3) Cr.P.C. directed the Superintendent of Police, Vigilance and Anti-Corruption, Assam, to register a case under appropriate provision of Prevention and Corruption Act, 1988, and investigate into the matter. Direction was also made to submit a report within one month, fixing the matter for report on 26.09.2012. 2. Aggrieved by the said order and the proceeding in Complaint case No. 14/2013, the petitioner aforesaid has come up with this quashing proceeding on the ground that jurisdiction under Section 156(3) Cr.P.C. could not have been exercised, without obtaining prior sanction under Section 19(3) of the Prevention of Corruption Act, 1988 (hereinafter called the P.C. Act.), inasmuch as, the petitioner (accused person) was a public servant. 3. I have heard the learned counsel appearing for both the parties. It is submitted that the present case is covered by order dated 13.05.2015, passed by this Court in Criminal petition No. 76/2014 (Rajib Kumar Bhuyan Vs. The State of Assam and another). On behalf of the petitioner, it has been submitted that, in view of statutory provision provided by section 19 of the P.C. Act, taking of cognizance without previous sanction is unlawful and the learned Special Judge ought not to have taken notice of the private complaint, without prior sanction. It is also submitted that for passing a direction under Section 156(3) Cr.P.C. also, 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. In view of above, it is submitted that the impugned order dated 20.11.2013, is liable to be set aside and the proceeding arising thereof, are liable to be quashed. 4. The Supreme Court in the Case of Anil Kumar & Ors. Vs. M.K. Aiyappa & Another , reported in (2013) 10 SCC 705 , discussing the scope of Section 156(3) Cr.P.C. observed :- “The scope of the above mentioned provision came up for consideration before this Court in several cases. 4. The Supreme Court in the Case of Anil Kumar & Ors. Vs. M.K. Aiyappa & Another , reported in (2013) 10 SCC 705 , discussing the scope of Section 156(3) Cr.P.C. observed :- “The scope of the 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 N.B. Maksud Saiyed Vs. State of Gujarat and antoher, (2008) 5 SCC 668 Section 156(3) or 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 application of mind by 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 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.” 5. 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 preceeded 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, has the 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 pre-requisite even in the case of a definite complaint against an erring servant. 6. In the case of Rajib Kumar Bhuyan (Supra), 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. 6. In the case of Rajib Kumar Bhuyan (Supra), 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. 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 the 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 dated 17.06.2013, by which the learned Special Judge directed the police to register a case and investigate into the matter. 7. In view of above, considering entire facts and circumstances of this case, it is found that the impugned order, dated 20.11.2013, cannot be maintained for want of sanction under Section 19 of the P.C. Act. That apart, the sending of the said complaint to police for registration and investigation without recording the necessity of sending the case under Section 156(3) Cr.P.C. is bad in the eye of law. Hence, the impugned order is liable to be set aside. Consequently, the impugned order dated 20.11.2013 is set aside and the proceeding there of is also quashed. No costs. __________