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2019 DIGILAW 341 (JK)

B. G. Mandanaik v. CBI Jammu

2019-07-19

SANJEEV KUMAR

body2019
JUDGEMENT : Sanjeev Kumar, J.—The petitioners invoke the extra ordinary jurisdiction of this Court vested under Article 226 of the Constitution of India read with Section 103 of the Constitution of State of Jammu and Kashmir for issuing, inter alia following writs:— (i) Certiorari quashing FIR No. RC0042012A0003 of 2012 dated 23.02.2012 registered with the CBI, ACB, Jammu for alleged commission of offence under Sections 120-B of the RPC read with Section 5(2) and 5(1)(e) of the J&K Prevention of Corruption Act, 2006 (for short ‘the Act of 2006’); (ii) Certiorari for quashing order dated 26.09.2013 passed by the learned Special Judge (CBI Cases), J&K, Jammu (hereinafter referred to as the ‘trial Court’) whereby the closure report submitted by the CBI, Jammu in the FIR has not been accepted and a direction has been issued to the CBI to obtain sanction for the prosecution against both the petitioners and then produce the final report in terms of the Section 173 of Cr.PC in proper procedure; (iii) Certiorari for quashing sanction order No.CEO/BG-1/CBI-B/01-2013 BS dated 13.12.2013 issued by the respondent No.5; and (iv) Certiorari for quashing final report/charge sheet submitted by the CBI ACB under Section 173 of the Code of Criminal Procedure before the trial Court. 2.Briefly stated the facts leading to the filing of the petition are; An FIR against the petitioners came to be registered with the CBI, ACB on the basis of source information that the petitioner No.1, the then Deputy Chief Engineer, Konkan Railway Corporation Limited (‘KRCL’ for short) Sangaldhan, Reasi, J&K in conspiracy with his wife, the petitioner No.2, amassed assets and made investments disproportionate to their known source of income by abusing the official position by the petitioner No.1 while he was working with KRCL at Sangaldhan, Reasi, J&K and other places during the period from January, 2001 to May, 2011. It was alleged that Rs.10.00 lakh in cash was found concealed in the self-stitched pockets of petticoat of the petitioner No.2. This was stated to have been found in the possession of the petitioner No.2 during her frisking at JammuAirport while she was boarding flight for Delhi-Bangalore along with petitioner No.1. The aforesaid amount was allegedly seized by the Income Tax Authorities at Bangalore. This was stated to have been found in the possession of the petitioner No.2 during her frisking at JammuAirport while she was boarding flight for Delhi-Bangalore along with petitioner No.1. The aforesaid amount was allegedly seized by the Income Tax Authorities at Bangalore. It has further come out that out of the said seized amount of Rs.10.00 lakh, Rs.1,00,000 was returned to the petitioner No.2 while as the rest was seized as the petitioners could not explain the possession of such amount to the satisfaction of the Income Tax Authorities. 3. That after the registration of the FIR, the matter was investigated by the CBI, which submitted the closure report before the trial Court. The closure report appears to have been submitted by the CBI on the ground that during investigation they did not find it a fit case for launching criminal prosecution against the petitioners as they could not find the evidence to conclude that the assets and investments made by the petitioners were disproportionate to their known source of income. The trial Court, however, did not accept the closure report and came to the conclusion that on the basis of the facts and evidence collected by the Investigating Officer during investigation, it was prima-facie demonstrable that the petitioners had committed offence under Section 120-B RPC read with Section 5(2), 5(1) (e) of the Jammu and Kashmir Prevention of Corruption Act, 2006. The trial Court, however, could not take the cognizance for the reason that the CBI had not obtained previous sanction from the competent authority in terms of the Section 6 of the Jammu and Kashmir Prevention of Corruption Act, 2006. The trial Court, accordingly, retained the closure report and directed the CBI to obtain necessary sanction against the petitioners and file final report under section 173 of the J&K Cr.PC in the shape of the charge sheet/police challan in a proper format with all relied upon oral and documentary evidence as per the list already annexed with the closure report. Two months period was granted to the CBI to do the needful. 4. Acting in compliance to the order of the trial Court, the matter was considered by the respondent No.5, who upon consideration of the material placed before him, came to the conclusion that both the petitioners deserve to be prosecuted in the court of law for the offences alleged against them. 4. Acting in compliance to the order of the trial Court, the matter was considered by the respondent No.5, who upon consideration of the material placed before him, came to the conclusion that both the petitioners deserve to be prosecuted in the court of law for the offences alleged against them. The respondent No.5, therefore, vide its sanction order dated 13.12.2013, being the competent authority to remove/dismiss the petitioner No.1 from the service, accorded sanction for prosecution of the petitioners. As a consequence of grant of sanction by the respondent No.4, the CBI, ACB, Jammu presented a challan against both the petitioners in the trial Court in terms of Section 173 of the Code of Criminal Procedure. 5. The petitioners are aggrieved of the manner they allege to have been treated by the Investigating Agency and, thus, challenge all the proceedings taken against them viz: (i) FIR registered with the CBI ACB, Jammu against the petitioners; (ii) The order dated 26.09.2013 passed by the trial Court in accepting the closure report filed by the CBI (iii) Sanction order issued by the respondent No.5 dated 13.12.2013, according sanction for the prosecution of the petitioners; and (iv) Final report submitted by the CBI before the trial Court for prosecution of the petitioners. 6. Before I take up the consideration the grounds of challenge urged on behalf of the petitioners to assail the impugned orders/proceedings, it would be appropriate to note that this petition was filed at a time when CBI had only produced the challan before the trial Court and the matter was yet to be considered for framing of charge. The learned Senior counsel appearing for the petitioners fairly submits that the issue as to whether on the basis of the facts and evidence collected during investigation prima-facie the case against the petitioners is not made out can be debated before the trial Court when it takes up the matter for framing of charges. The learned Senior counsel appearing for the petitioners fairly submits that the issue as to whether on the basis of the facts and evidence collected during investigation prima-facie the case against the petitioners is not made out can be debated before the trial Court when it takes up the matter for framing of charges. He, however, enters a caveat that if this Court finds favour with his arguments that non-acceptance of the closure report by the trial Court in terms of the order dated 26.09.2013, was not in consonance with law, all the proceedings taken subsequent thereto would vitiate and in such eventuality, the petitioners may not have to argue before the trial Court for discharge of the accused at the time when the matter is taken up for framing of charge. He, therefore, fairly submits that this Court may not delve deep into the merits of the charge and avoid returning a finding as to whether a prima facie case for prosecution of the petitioners is made out or not, but, insists that other issues raised by him touching upon the legality of the order of the trial Court dated 26.09.2013 and the accord of sanction by the respondent No.5 be considered in the light of his submissions made in support of the grounds of challenge specifically taken in this petition. 7. Per contra, learned counsel appearing for the respondents does not dispute or oppose the course of action suggested by the learned counsel for the petitioners. That apart, I am also of the considered view that touching upon the merits of the charge, in these proceedings may adversely affect either side and would also have the affect of taking away one remedy from the aggrieved party. In this backdrop, I have considered the rival contention with regard to the sustainability of the order of the trial Court dated 26.09.2013 and order of sanction passed by the respondent No.5 for prosecution of the petitioners. On behalf of the petitioners, Mr. K.S.Johal, Sr. Advocate vehemently argues that non-acceptance of the closure report by the trial Court vide its order dated 26.09.2013, has adversely affected the petitioners and therefore, the same could not have been done by the trial Court without first affording an opportunity of hearing to the petitioners. On behalf of the petitioners, Mr. K.S.Johal, Sr. Advocate vehemently argues that non-acceptance of the closure report by the trial Court vide its order dated 26.09.2013, has adversely affected the petitioners and therefore, the same could not have been done by the trial Court without first affording an opportunity of hearing to the petitioners. Learned Senior counsel argues that submission of a closure report by the Investigating Agency, created a vital right in the petitioners to claim before the trial court that they were not prima-facie guilty of the commission of the offences alleged against them, but the trial Court unilaterally rejected the closure report and directed Investigating Agency to seek sanction from the competent authority and produce the final report with charge sheet against the petitioners and, thus, acted to the serious prejudice of the petitioners. Their right of being heard before such order was passed was denied to the petitioners. He also assails the order of sanction granted by the respondent No.5 for prosecution of the petitioners on the ground that the same is without an application of mind and therefore, cannot sustain. He, therefore, claims that the challan presented on the basis of invalid sanction could not have been taken cognizance of by the trial Court. 8. Per contra, submission of learned counsel appearing for the respondents is that although after investigation, the CBI had initially submitted a closure report, but, the same was rejected by the trial Court, which upon appreciation of evidence and the material on record had come to the conclusion that there was enough evidence to charge sheet the petitioners for the offences alleged against them. She, therefore, submits that compliance to the order of the trial Court, the matter was placed before the respondent No.5, who after going through the whole record and taking note of the observations made by the trial Court in its order dated 26.09.2013 and after due application of mind, accorded sanction for the prosecution of the petitioners. She further submits that it is well settled legal position that before the Court takes the cognizance of the case, prospective accused has no right to be heard in the matter. She further submits that it is well settled legal position that before the Court takes the cognizance of the case, prospective accused has no right to be heard in the matter. Elaborating her argument, learned counsel appearing for the respondents urges that on presentation of the report including the closure report in terms of Section 173 of Cr.P.C, three courses are opened before the trial Court; it can either accept the closure report and close the FIR; It can also take the cognizance and issue process to the accused even if the Investigating Agency has submitted the closure report; The trial Court has third option of directing the Investigating Agency to further investigate the matter. 9. Having heard, learned counsel for the parties and perused the record, I am of the view that the questions that beg determination in this petition are as under:— (i) Whether the prospective accused is entitled to hearing by the trial Court if it does not accept the closure report and instead decides to take cognizance or without taking cognizance directs further investigation by the Investigating Agency? (ii) Whether in the facts and circumstances of this case, the order according sanction to the prosecution of the petitioner No.1 suffers from non-application of mind and, therefore, not sustainable in law? 10. If the answer to the question No.(i) is in the affirmative, the whole proceedings taken by the CBI including presentation of the challan before the Court below will have to go and the matter has to be sent back and the position, as was obtaining before 26.09.2013, has to be relegated. In such event, the trial Court may have to be called upon to consider the matter afresh after affording an opportunity of hearing to the petitioners. The position, however, would be different if the answer to the aforesaid question is in the negative. In that eventuality, the matter has to go back before the trial Court for framing of charge, where the petitioners would have ample opportunity to urge on merits that on the basis of the evidence collected during investigation, no case for their prosecution has been made out. Similar, if the grant of sanction for prosecution of the petitioners is held to be bad then the order of taking cognizance by the trial Court will not sustain and the proceedings in the challan pending before the trial court shall vitiate. Similar, if the grant of sanction for prosecution of the petitioners is held to be bad then the order of taking cognizance by the trial Court will not sustain and the proceedings in the challan pending before the trial court shall vitiate. Question No.(i) 11. Mr. K.S.Johal, learned Senior counsel appearing for the petitioners strenuously urges that submission of closure report by the CBI in favour of the petitioners created a valuable right in their favour of which they could not have been deprived of by the trial Court without first complying with the principles of natural justice. Elaborating his arguments, learned Senior counsel submits that if the Magistrate wishes to accept the closure report, as authoritatively held by the Hon’ble Supreme Court, right of hearing is required to be provided to the complainant on whose instance FIR has been registered, and on the same analogy if the Magistrate decides not to accept the closure report and takes cognizance or directs further investigation in the matter, the similar right of hearing deserves to be provided to the accused as well. He draws analogy of the similar right provided to the accused under Section 401(2) of the Code of Criminal Procedure. The reliance in this regard is placed by the learned counsel on the judgment of the Supreme Court rendered in the case of Manharibhai Muljibhai Kakadia and others Vs. Shaileshbhai Mohanbhai Patel and others, reported in 2012(10) SCC 517 . 12. Per contra, the learned counsel appearing for the respondent No.1 urges that mere filing of closure report by the police before the Magistrate does not confer any right on the accused to claim that the same should, in all eventuality, be accepted by the Magistrate. She, therefore, submits that no right of hearing is envisaged during the course of investigation or at any time prior to the taking of the cognizance and issuance of the process to the accused for appearance in the trial. She places reliance upon the judgment of the three judge bench of the Supreme Court in the case of India Carat Pvt. Ltd. Vs. State of Karanataka and another reported in 1989 (2) SCC 132 . 13. For better appreciation of the rival contentions, some salient provisions of the code relevant to the controversy in hand deserves to be noticed. She places reliance upon the judgment of the three judge bench of the Supreme Court in the case of India Carat Pvt. Ltd. Vs. State of Karanataka and another reported in 1989 (2) SCC 132 . 13. For better appreciation of the rival contentions, some salient provisions of the code relevant to the controversy in hand deserves to be noticed. Section 156 of the Code deals with the powers of the Police Officer to investigate the cognizable offences. The section reads thus:— 156. Investigation into cognizable cases. —(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the local limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.(2)No proceeding of police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3)Any Magistrate empowered under section 190 may order such an investigation as above-mentioned. 14. The next relevant Section in the context of the controversy raised in this petition is Section 173 which reads thus:— [173. Report of police officer on completion of investigation. —(1) Every investigation under this Chapter shall be completed without unnecessary delay: 2[Provided that investigation into offences under sections 152, 153-A, 295,295-A, 296, 297, 298, 435, 436 and 505 of the State Ranbir Penal Code shall be completed within two weeks, and if the investigation is not so completed the investigating officer shall report the causes of the delay to the District Superintendent of Police who shall issue necessary instructions for completion of the investigation]. (2)(i) As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Government stating– (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the Government the action taken by him, to the person if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158,the report shall, in any case in which the Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate direct the officer-in-charge of the police station to make further investigation. (4) Wherever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report— (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witness. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). (8) Nothing is this shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed ; and the provisions of sub-sections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).] 15. The other relevant section dealing with the cognizance by the Magistrate is Section 190 which falls in the Chapter XV and the same, for expediency, is also reproduced here under:— 190. Cognizance of offence by Magistrates. —(1) Except as hereinafter provided, 2[any Chief Judicial Magistrate and any other Judicial Magistrate]specially empowered in this behalf, may take cognizance of any offence– (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. (2) The 2[High Court may empower any Judicial Magistrate] to take cognizance under sub-section (1), clause (a) or clause (b), of offences for which he may try or commit for trail. (3) The 2[High Court may empower any Judicial Magistrate] of the first or second class to take cognizance under sub-section (1), clause (c), of offences for which he may try or commit for trial. 16. (3) The 2[High Court may empower any Judicial Magistrate] of the first or second class to take cognizance under sub-section (1), clause (c), of offences for which he may try or commit for trial. 16. From the conjoint reading of the sections reproduced above, it is clear that the officer Incharge of the Police Station is empowered to investigate any cognizable case falling in his jurisdiction even without order of Magistrate. Under Sub Section 3 of the Section 156, any Magistrate who is empowered under Section 190 can also order such an investigation. If the information received by an officer Incharge of Police Station discloses commission of cognizable offence, such information is required to be reduced in writing by the officer Incharge of the police station or under his directions. It is required to be read over to the Informant. The information whether given in writing or reduce in writing as aforesaid shall be signed by the person giving it and the substance thereof is to be entered in the book to be kept by such an officer in such form as the government may prescribe in this behalf. This is evident from Section 154 of the code. The information so recorded in proper form is styled as ‘First Information Report’ (FIR). Upon the registration of an FIR, the Officer Incharge of the Police Station under Section 156(1) is under an obligation to set the investigation in motion. In case of refusal by the Officer Incharge of Police Station to register the FIR under Section 154, the person aggrieved may approach the Superintendent of Police, who if satisfied that such information discloses the commission of cognizable offence shall either investigate the case himself or direct an investigation to be made by any officer subordinate to him in the manner provided by the code. Such officer entering investigation shall have all the powers of Officer Inccharge of Police Station in relation to that offence. Section 156(3) of the Code empowers the Magistrate to order such investigation provided such Magistrate is otherwise empowered to take the cognizance under Section 190 of the Code. As soon as the investigation is completed by the officer incharge of the Police Station, a report in the prescribed form shall be prepared and presented to the Magistrate empowered to take cognizance of the offence on a police report. As soon as the investigation is completed by the officer incharge of the Police Station, a report in the prescribed form shall be prepared and presented to the Magistrate empowered to take cognizance of the offence on a police report. The police report submitted in terms of Section 173(2) of the Code when comes up for consideration before the Magistrate, one of the two different situations may arise. The report may conclude that offence appears to have been committed by a particular person or persons and in such situation, the Magistrate has three option; one he may accept the report and take cognizance of the offence and issue process to the person/persons accused; or (2) he may not accept the report and drop the proceedings; or (3) he may direct further investigation under Sub Section 3 of Section 156 of the Code and call upon the police to make a further report. It may be noted that the Magistrate empowered to take the cognizance is not bound to accept the conclusion arrived at by the Investigating Officer. It can apply its mind to the evidence and the material collected during investigation by the Investigating Officer and decide an appropriate course of action to be taken in the matter. In the case of Bhagwant Singh V. Commissioner of Police, reported in 1985 (2) SCC 537 , the Supreme Court in paragraph No.4 held thus:— “4. Now, when the report forwarded by the officer-in charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognized by the provisions contained in sub-section (2) of Section 154, sub- section (2) of Section 157 and sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub-section (2) (i) of Section 173 if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.” 17. From the perusal of Sections 173 and 156 reproduced above and as held by the Supreme Court in the case of Bhagwant Singh (supra), it is abundantly clear that the Magistrate, which receives a closure report from the Investigating Officer is not bound to accept it and may decide to take the cognizance of the offence and issue process. In that event, neither Informant nor the person accused of committing the offence is prejudiously affected. In that event, neither Informant nor the person accused of committing the offence is prejudiously affected. In short, neither under expressed provisions of Sections 156, 173 or Section 190 of the Code or any other provision of the Code nor under any judgment of the Supreme Court a right is vested in the accused to be heard before the Magistrate declines to accept the closure report and instead proceeds to take the cognizance or direct further investigation in terms of Section 156(3) of the Code. It is only where the Magistrate decides to accept the closure report and drop the proceedings, a right of prior hearing in favour of the Informant has been recognized through judicial precedents. The raison detre for creating such right of hearing in favour of the Informant is that the Informant, who sets the investigation in motion, is interested in seeing that the Magistrate takes the cognizance of the offence and issues process. The culmination of the FIR lodged by the Informant is the presentation of challan/police report by the Officer Incharge of the Police Station and taking the cognizance thereof by the Magistrate. It is in that context, the Supreme Court has held that when on consideration of the report made by the Officer Incharge of Police Station under Section 173(2) of Cr.P.C, the Magistrate is not inclined to take the cognizance of the offence and issue process, the Informant must be given an opportunity of being heard so that he can make his submission and pursuade the Magistrate to take cognizance of the offence and issue process. But, the similar right is not vested in the accused where the Magistrate decides not to accept the closure report submitted by the officer incharge of the police station and decides either to take the cognizance or direct further investigation under Section 156(3) of the Code. This right of hearing to the Informant when the Magistrate decides to accept the closure report is implicit in Section 173(2)(ii) of Cr.P.C. which castes an obligation on the officer incharge of the police station to communicate the action taken by him to the Informant. This right of hearing to the Informant when the Magistrate decides to accept the closure report is implicit in Section 173(2)(ii) of Cr.P.C. which castes an obligation on the officer incharge of the police station to communicate the action taken by him to the Informant. It may be noted that during the course of investigation, the role of the Investigating Officer is not only to collect the material in favour of the complainant version, but, he is under an obligation to collect the entire evidence whether in favour or against the complainant and in favour or against the accused. It is only on the collection of the entire material/evidence, the Investigating Officer would form final opinion as to whether a final report under Section 173 Cr.PC is to be filed for putting the accused to trial or to submit a closure report. The Investigator is free to form his opinion on the basis of the material collected by him during investigation, but, this opinion of the Investigating Officer is not binding on the Magistrate taking cognizance under Section 190(1)(b) of the code. As held by the Supreme Court in the case of H.S. Bains Director Small Saving-cum-Deputy Secretary, Finance v. State of (UT Chandigarh) reported in (1980) 4 SCC 631 and M/s India Carat Pvt. Ltd. v. State of Karnataka and another (supra) relied upon by the learned counsel appearing for the respondents, on receipt of final report from the Police, the Magistrate has three options. It is very aptly explained in paragraph no.6 of the judgment of HS Bains (supra), which for facility of reference is reproduced here under:— “6. It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Sec. 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Sec. 203. If in his opinion there is sufficient ground for proceeding he may issue process under Sec. 204. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Sec. 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Sec. 203. If in his opinion there is sufficient ground for proceeding he may issue process under Sec. 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Sec. 156(3). The police will then investigate and submit a report under Sec. 173(1). On receiving the police report the Magistrate may take cognizance of the offence under Sec. 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Sec. 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Sec. 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Sec. 156(3) and received a report under Sec. 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. The mere fact that he had earlier ordered an investigation under Sec. 156(3) and received a report under Sec. 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Sec. 156(3) and receives a police report under Sec. 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Sec. 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report: (3) he may take cognizance of the offence under Sec. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Sec. 200 If he adopts the third alternative, he may hold or direct an inquiry under Sec. 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.” 18. Similar view is taken by the Supreme Court in M/s India Carat Pvt. Ltd. Para No.(13) where of is noteworthy and is reproduced as under:— “13. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under Section 200. After recording those statements, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203. On the other hand if in his opinion there is sufficient ground for proceeding he may issue process under Section 204. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(c) and issue process straightaway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or un-earthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.” 19. From the scheme of Sections 154, 156, 173 and Section 190 of the Code, it is evident that there is no provision, explicitor implicit, that at the stage of accepting or rejecting the final report, either the prospective accused or the complainant is required to be heard. However, in view of the decision of the Supreme Court in the case of Bhagwant Singh (supra), it has been held that where the Magistrate proceeds to accept the closure report or an untraced report, the complainant/informant has a right to be heard. No such right, however, has been conferred upon the accused to be heard at such stage. The accused comes into picture only when the Court takes cognizance and issue process. The right of hearing given to the accused under Sub Section (2) of Section 439 of the Code, which is parimateria of Sub Section (2) of Section 401 of the Central Code of Criminal Procedure is only when the High Court intends to pass an order in the Revision Petition to the prejudice of the accused. This right of hearing given to the accused is statutory in nature. No analogy can be drawn from the aforesaid right statutorily created in favour of the accused to contend that the similar right is implicit when the Magistrate empowers to take cognizance under Section 190 and decides not to accept the closure report. The reliance by the learned Senior counsel on the judgment of the Supreme Court rendered in the case of Manharibhai Muljibhai Kakadia and others (supra) is totally misplaced. In the aforesaid case, the Supreme Court has held that the accused or a person, who is suspected to have committed the crime is entitled to hearing by the Revisional Court, hearing a Revision against the order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the code. But, in the same judgment the Hon’ble Supreme Court has clarified that the accused or a person, who is suspected to have committed the crime (prospective accused) has no right to participate in the proceedings nor are they entitled to any hearing of any sort whatever by the Magistrate until the consideration of the matter by the Magistrate for issuance of the process. Para No.53 of the judgment is noteworthy and reads thus:— “53. Para No.53 of the judgment is noteworthy and reads thus:— “53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan1, Raghu Raj Singh Rousha2 and A. N. Santhanam3. We hold, as it must be, that in a revision petition preferred by complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed crime is entitled to hearing by the revisional court. In other words, where complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the revisional court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed crime have, however, no right to participate in the proceedings nor they are entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled.” 20. From bare reading of paragraph No.53 of the judgment, it becomes abundantly clear that no right of hearing is vested in the accused or the person, who is suspected to have committed the crime till the Court takes cognizance and issues process against the accused. The plea of the petitioners that since the accused has been given the right of hearing in the Revision Petition under Section 439(2), as such, the similar right must, necessarily be conceded in favour of the accused, even at the stage when the Magistrate, on presentation of the closure report, decides not to accept the same and directs further investigation in the matter is bereft of any merit. 21. 21. In the case in hand, admittedly the CBI upon investigation produced a closure report. The trial Court i.e. Special judge, Anti-Corruption, Jammu which under the J&K Prevention of Corruption Act, 2006 is also a Magistrate empowered to take the cognizance of the offences under the Act, considered the closure report submitted by the CBI and on the basis of the material collected found that prima-facie case for taking cognizance was made out. However, the trial Court could not take the cognizance against the petitioner in view of the bar created by Section 6 of the Act of 2006, which provides for previous sanction by the competent authority necessary for prosecution and taking of cognizance by the Court. The trial Court, therefore, directed the CBI to seek necessary sanction for prosecution from the competent authority and then produce the final report under Section 173 of the Cr.P.C. The CBI, accordingly, pursued the matter with the competent authority, which after considering the material submitted by the Investigating Officer during investigation and taking note of the observations of the trial Court, which had found a prima-facie case against the petitioners for taking cognizance, accorded sanction for prosecution of the petitioners vide its order dated 13.12.2013, which is also impugned in this petition. After obtaining requisite sanction for prosecution from the competent authority, the final report was laid by the CBI before the trial Court. The trial Court took cognizance and issued the process. The petitioners, instead of appearing before the trial Court, chose to challenge the same in this petition. This Court vide its order dated 11.04.2014 stayed the proceedings before the trial Court. 22. Be that as it may, in view of the preceding analysis of different provisions of the Code and the law on the subject laid down by the Supreme Court, I have no hesitation to hold that the petitioners had no right to be heard by the trial Court when it decided not to accept the closure report and directed the CBI to seek sanction and present the final report after doing the needful. The trial Court was not bound by the closure report submitted by the CBI and therefore, the submission of the closure report in favour of the petitioners did not confer any right on the petitioners nor were they required to be heard before taking any decision on the report submitted by the CBI in terms of Section 173 of the Code. Question No.(ii). 23. The challenge to sanction order by the Chairman-cum-Managing Director of KRCL, respondent No.5, is primarily predicated on the plea of non-application of mind. It is urged on behalf of the petitioners that the respondent No.5, without going through the relevant material and record mechanically accorded sanction for prosecution of the petitioners. 24. Per contra, learned counsel appearing for the respondents argues that since the trial Court has already taken the cognizance of the offence against the petitioners, as such, it is best to leave the question of validity of the sanction open for consideration by the trial judge. The stage for examining the validity of the sanction is during trial where the petitioners will be at liberty to raise the objection to the validity of the sanction for prosecution granted by the respondent No.5. 25. I have given my thoughtful consideration to the rival contentions on the point in issue and am persuaded to accept the contention of learned counsel appearing for the respondents that since the trial Court has already taken the cognizance against the petitioners, as such, it would be appropriate to leave the question of validity of sanction open for consideration by the trial Court and in that event, it shall be open to the petitioners to raise the issue concerning the validity of the sanction order in the course of the trial. The law in this regard is well settled (See-Prakash Singh Badal and another v. State of Punjab, 2007(1) SCC 1 , Ashok Tshering Bhutia v. State of Sikkim, 2011(4) SCC 202). The paragraph No.47 and 48 of the judgment rendered in the case of Parkash Singh Badal (supra) are significant and thus noted herein below”— “47. The sanctioning authority is not required to separately specify each of the offence against the accused public servant. This is required to be done at the stage of framing of charge. The paragraph No.47 and 48 of the judgment rendered in the case of Parkash Singh Badal (supra) are significant and thus noted herein below”— “47. The sanctioning authority is not required to separately specify each of the offence against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalized guidelines in that regard. 48. The sanction in the instant case related to offences relatable to Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non application of mind. The former question can be agitated at the threshold but the latter is a question which has to be raised during trial.” 26. The aforesaid issue also fell for consideration in the case of Dinesh Kumar Vs. Chairman, Airport Authority of India and another, AIR 2012 SC 858 . The Supreme Court after taking note of the judgments rendered in the case of Parkash Singh Badal (supra), State of Karntaka Vs.. Ameerjan 2007(11) SCC 273 , in paragraphs Nos.11, 12 and 13 held thus: “11. The Privy Council as far back in 1948 in Gokulchand Dwarkadas Morarka v. The King [ AIR 1948 PC 82 ] opined that the object of the provision for sanction is that the authority giving it should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden stating: (IA pp. 37-38) “In Their Lordships’ view, to comply with the provisions of clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction.” The said decision has been referred to by this Court, with approval, in Jaswant Singh v. State of Punjab. 12. Yet again in Mohd. Iqbal Ahmed v. State of Andhra Pradesh [ (1979) 4 SCC 172 ], this Court opined that the sanctioning authority cannot rely on the statutory presumption contained in Section 4 of the Prevention of Corruption Act, 1947 stating: (SCC P.175, para 4) “4…… In the first place there is no question of the presumption being available to the Sanctioning Authority because at that stage the occasion for drawing a presumption never arises since there is no case in the Court. Secondly, the presumption does not arise automatically but only on proof of certain circumstances, that is to say, where it is proved by evidence in the Court that the money said to have been paid to the accused was actually recovered from his possession. It is only then that the Court may presume the amount received would be deemed to be an illegal gratification. So far as the question of sanction is concerned this arises before the proceedings come to the Court and the question of drawing the presumption, therefore, does not arise at this stage.” 13. In R.S. Nayak v. A.R. Antulay following Mohd. Iqbal Ahmed (supra), the Supreme Court Court held: (SCC pp. 205-06, para 23) “23…..The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office.” 27. The Supreme Court in its later decision rendered in the case of CBI v. Ashok Kumar Aggarwal, reported in 2014(14) SCC 295 surveyed the whole case law on the point and summed up the same in paragraphs No. 46 and 47 in the following manner:— “46. The most relevant issue involved herein is as at what stage the validity of sanction order can be raised. The issue is no more res- integra. In Dinesh Kumar v. Chairman Airport Authority of India & Anr., AIR 2012 SC 858 , this Court dealt with an issue and placing reliance upon the judgment in Parkash Singh Badal & Anr. v. State of Punjab& Ors., AIR 2007 SC 1274 , came to the conclusion as under: “13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the trial court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal…” 47. Such course is in accord with the decision of this Court in Parkash Singh Badal…” 47. Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pretrial stage.” 28. That apart, from the perusal of the impugned sanction order, it is abundantly clear that the sanctioning authority considered all the relevant material and came to the conclusion that the evidence collected by the CBI during investigation was sufficient to put the petitioners to trial. The sanction order is speaking and demonstrates due application of mind by the sanctioning authority. 29. From the aforesaid analysis of the facts and the case law on the subject, it clearly comes out that the sanction order impugned in this petition does not suffer from non-application of mind. It, however, does not mean that the petitioners if aggrieved of the sanction order on some other grounds would be precluded from raising the question of validity of the sanction order during the course of the trial. 30. Before parting with this case, I would like to put down very relevant observations made by the Supreme Court in the case of State of MP v. Ram Singh, 2000 (5) SCC 88 . In paragraph Nos. 10 and 11 of the judgment, the Hon’ble Supreme court made the following observations while dealing with a case under the Prevention of Corruption Act:— “The Act was intended to make effective provision for the prevention of bribe and corruption rampant amongst the public servants. It is a social legislation defined to curb illegal activities of the public servants and is designed to be liberally construed so as to advance its object. Procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and decided cases under it.” 31. Similarly the observations of the Supreme Court in paragraph 8 of the said judgment are also noteworthy and reproduced hereunder:— “Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of country leading to disastrous consequences. Similarly the observations of the Supreme Court in paragraph 8 of the said judgment are also noteworthy and reproduced hereunder:— “Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society. 32. Every judge dealing with the corruption cases needs to be reminded of these observations. 33. Keeping in view the totality of the facts and the case law on the subject as analyzed hereinabove, I am of the considered view that the petitioners have failed to make out any case for indulgence of this Court in exercise of its extraordinary jurisdiction vested with Article 226 read with Section 103 of the Constitution of Jammu and Kashmir State. The writ petition is thus, found to be without any merit and is, accordingly, dismissed along with connected CM(s). It may be clarified that the observations made by this Court in this order are limited to the disposal of this petition and shall not prejudice the petitioners in any manner during the course of the trial. The petitioners shall be at liberty to raise all the available pleas including those, which the petitioners have raised in this petition before the trial Court at the time of framing of charge or thereafter.