Research › Search › Judgment

Himachal Pradesh High Court · body

2023 DIGILAW 470 (HP)

Rakesh Kumar v. State of H. P.

2023-11-22

RAKESH KAINTHLA

body2023
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking direction to the respondents to conduct a swift and fair preliminary inquiry as per the Vigilance Manual and register the FIR against the culprits. 2. It has been asserted that the petitioner made a complaint to DGP, Himachal and S.P, State Vigilance and Anti-Corruption Bureau in April 2022 to conduct an inquiry regarding the non-deposit of Rs. 10,00,000/- stated to have been donated by one Sandeep Kumar Sharma, Principal Government Senior Secondary School, Cheog for the construction of school building at Cheog. The petitioner found from the media reports that one Sandeep Kumar Sharma Principal, had donated Rs.10,00,000/- to the Government Senior Secondary School, Cheog for the construction of the school building. The petitioner sought the information under RTI Act, 2005 and found that no amount was deposited by Sandeep Kumar Sharma in the School Welfare Fund. The petitioner made a complaint to the Director General of Police Superintendent of Police and State Vigilance Corruption Bureau to initiate the inquiry. The Investigating Officer associated the petitioner in the inquiry and recorded his statement, however, no progress was made thereafter. Hence, the petition. 3. The respondents filed a reply making the preliminary submission regarding lack of maintainability. It was asserted that a Source Information Report made by the petitioner was received in the office, which was entrusted to respondent no. 5 for verification. The suspect is a Gazetted Officer and a regular inquiry has been recommended. The regular inquiry can be conducted only after the receipt of permission from the Competent Authority as per Para 4.1 of Chapter II of the H.P. Vigilance Manual. The matter has been submitted to respondent no.3 with all the details. However, the permission has not been received; therefore, it was prayed that the petition be dismissed. 4. I have heard Mr. D.S. Nainta, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondents/State. 5. Mr. D.S. Nainta, learned counsel for the petitioner submitted that the police is not conducting the investigation and not registering the FIR; therefore, the present petition be allowed and a direction be issued to the Police to register the FIR and carry out the investigation expeditiously. 6. Mr. Prashant Sen, learned Deputy Advocate General, submitted that the Police conducted the preliminary inquiry and sought permission as per the Vigilance Manual. 6. Mr. Prashant Sen, learned Deputy Advocate General, submitted that the Police conducted the preliminary inquiry and sought permission as per the Vigilance Manual. The permission has not yet been received and the Police cannot proceed further. The present petition is not maintainable. Hence, he prayed that the present petition be dismissed. 7. I considered the rival submissions at the bar and have gone through the records carefully. 8. It was held by Kerala High Court in Vasanthi Devi versus S.I. of Police and anr., 2008 SCC online Kerala 47 that the Magistrate has the power to order the registration of the FIR and monitor the investigation under Section 156(3) of Cr.P.C.; therefore, the petition under Section 482 of Cr.P.C. for such directions is not maintainable. It was observed: “11. Later, after adverting to the principle that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective, the learned Judges construed the power under Section 156(3) Cr. P.C to include an implied power to direct a proper investigation. In para.24 the principle is stated with precision in the following words "In view of the above-mentioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the magistrate under Section 156(3) Cr. P.C to order registration of a criminal offence and/or to direct the officer-in-charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr. P.C., we are of the opinion that they are implied in the above provision." 12. The learned Judges elaborated on the above matter with a specific purpose. Their Lordships were aware of the practice of persons rushing to the High Court with Writ Petitions or petitions under Section 482 Cr.P.C. The learned Judges want to make it clear that ordinarily such a practice should not be encouraged and the High Courts must refuse to interfere with such matters. In para.25 the following lines appear. Their Lordships were aware of the practice of persons rushing to the High Court with Writ Petitions or petitions under Section 482 Cr.P.C. The learned Judges want to make it clear that ordinarily such a practice should not be encouraged and the High Courts must refuse to interfere with such matters. In para.25 the following lines appear. "We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternative remedy." 13. To dispel, any impression that the Magistrate does not have powers to ensure a proper investigation, their Lordships proceeded further and stated so in para 27 in the following words. "As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for his purpose, he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr. P.C before the Magistrate or by filing a criminal complaint under Section 200 Cr. P.C, and not by filing a writ petition or a petition under Section 482 Cr.P.C." 14. After observing that such an alternate remedy is available to such a petitioner, the learned Judges in para.28 stated thus: "It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere." XXXXXXXX 29. After observing that such an alternate remedy is available to such a petitioner, the learned Judges in para.28 stated thus: "It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere." XXXXXXXX 29. Having said so, it has to be considered as to whether this writ petition filed by the petitioner deserves to be entertained. Even following the decision in Sakiri Vasu as already noted in paragraph 25, the mandate is only that this court should not encourage the practice and should ordinarily refuse to interfere when applications are filed under Section 482 Cr. P.C and Article 226 of the Constitution complaining about the inadequate quality of investigation. Jurisdiction is not taken away. The question is not one of lack of jurisdictional competence. The challenge is only one of identifying the fit case where notwithstanding the existence of powers for the Magistrate under Section 156(3) Cr.P.C, this court should invoke the powers under Section 482 Cr.P.C and Article 226 of the Constitution. 30. Having considered all the relevant aspects in this case, I am certainly of the view that this is a fit case where the petitioner must be left to seek appropriate directions from the learned Magistrate under Section 156(3) Cr.P.C. She must air her grievance that a proper investigation is not being conducted before the learned Magistrate concerned. The learned Magistrate, needless to say, must pass appropriate orders.” 9. This judgment is based upon the judgment of the Hon’ble Supreme Court, therefore, there is force in the submission of Mr. Prashant Sen, learned Deputy Advocate General that the present petition is not maintainable under Section 482 of Cr.P.C. and the remedy of the petitioner was to approach the concerned Magistrate. 10. The petitioner asserted in the petition that the respondents ordered the investigation and associated the petitioner. The respondents stated that a preliminary investigation was conducted but permission is required from the Competent Authority as per the Vigilance Manual, which is still awaited. This Court cannot direct the Competent Authority to exercise its discretion in a particular manner and it is for the Competent Authority to decide the matter as per the material placed before it. The respondents stated that a preliminary investigation was conducted but permission is required from the Competent Authority as per the Vigilance Manual, which is still awaited. This Court cannot direct the Competent Authority to exercise its discretion in a particular manner and it is for the Competent Authority to decide the matter as per the material placed before it. This Court would be usurping the jurisdiction of the Competent Authority by issuing a direction to grant permission, which is not permissible in the exercise of Power under Section 482 of Cr.P.C. It was laid down by the Gujarat High Court in Gaurishankar Purshottamdas Joshi v. State of Gujarat, 2016 SCC OnLine Guj 9141 that the Court cannot issue a direction to the sanctioning authority even to consider the grant of sanction. It was observed: “19. Over and above the issue of sanction under Section 19 of the Act of 1988, I take notice of the last part of the impugned order. It appears that the learned Judge, after taking cognizance, without sanction, directed the authority concerned to reconsider the issue of grant of sanction. Of course, on a plain reading of the order, it appears that there is no direction to accord sanction, but having regard to the language used the direction is to reconsider the question of sanction. In my view, such an order should not have been passed by the Court concerned. There was no reason for the Special Judge to be so anxious to prosecute the petitioner. Pursuant to the order or rather the direction passed by the Special Judge, if ultimately sanction is accorded, there would be the effect of the same. The Supreme Court in Mansukhlal Vithaldas Chauhan v. State of Gujarat [1997 (4) R.C.R.(Criminal) 236: 1997 Cr. L.J. 4059] held that a sanction granted by the Sanctioning Authority mechanically was not valid. It has been observed in the said judgment that the validity of sanction depends on the applicability of mind by the Sanctioning Authority to the facts of the case as well as the materials and evidence collected during the investigation. It necessarily follows that the Sanctioning Authority has to apply its own individual mind for the generation of genuine satisfaction whether the prosecution has to be sanctioned or not. It necessarily follows that the Sanctioning Authority has to apply its own individual mind for the generation of genuine satisfaction whether the 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 to take a decision one way or the other. Since the discretion to grant or not to grant the sanction vests absolutely in the Sanctioning Authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the Sanctioning Authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, 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. 20. The case in hand is one in which the learned Judge was anxious to prosecute the petitioner. But his anxiety cannot help as he could not legally pass such an order to reconsider the question of grant of sanction. I am of the view that it was beyond his jurisdiction. Even if there is no direction, still by passing such an order, he was himself compelling the Sanctioning Authority to accord sanction under compulsion.” 11. Therefore, the direction sought by the petitioner cannot be issued. Final Order: 12. In view of the above, the petition fails and the same is dismissed.