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2018 (3) TMI 1434
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....inal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.'). 3. In Criminal Appeal No.............of 2018 (arising out of SLP (Crl.) No.5838 of 2014), the appellant submitted a complaint before the Special Judge (Prevention of Corruption Act, Jaipur Metropolitan City, Jaipur) under Sections 7 & 13 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'PC Act') and Sections 420, 467, 468 & 471 read with Section 120B of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC'). The appellant sought investigation of offences and registration of an FIR against the accused persons. The first respondent arrayed as an accused before the Special Judge as "Principal Secretary to the Government P.H.E.D. Chief Minister" is the first respondent before us, the other persons arrayed as accused before the Special Judge, being the Superintending Engineer, Chief Engineer, ex Chief Minister (as she then was), ex Minister of P.H.E.D., Finance Secretary, Deputy Accountant General and P.S.L. Company through its Managing Director are also before us, as the Respondents. It is alleged in the complaint that in the drinking water project Nos.1 to 8, a conspiracy was hatch....
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....also the revision petition being directed against an interlocutory order, the petition was not maintainable. Thereafter the present Special Leave Petition has been filed. 7. We have heard learned counsel for the parties. 8. Mr. Prashant Bhushan, learned counsel appearing for the appellant sought to question the view taken in Anil Kumar (supra) and in L. Narayana Swamy v. State of Karnataka (2016) 9 SCC 598 following the earlier judgment. The sub-stratum of the argument is that the requirement of prior sanction for prosecution against the public servant would arise only when cognizance is taken, while no such sanction was required at the stage of setting into motion an investigation under Section 156(3) of the Cr.P.C.. It was, thus, contended that the observations in these two judgments are per incuriam or in conflict with the long line of earlier judgments on the question as to when the cognizance can be stated to have be taken. Mr. Bhushan drew our attention to Section 19(1) of the PC Act, which reads as under: "19. Previous sanction necessary for prosecution - (1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and15 ....
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....ho is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the lime of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted." 12. Once cognizance is taken the procedure is triggered off under Chapter XV with the heading "Complaints to Magistrates". It would be suffice to reproduce Section 200 as under: "200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the com....
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....e on an officer in charge of a police station except the power to arrest without warrant." 14. Keeping in mind the aforesaid provisions, we now turn to Chapter XII with the heading "Information to the Police and their powers to investigate". Section 156 forms a part of this Chapter and reads as under: "156. Police officer's power to investigate 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 limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a 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." 15. The relevant provision is Section 156(3) of the Cr.P.C. where a Magistrate is empowered to make an order of investigation in terms of sub-sections (1) & (2). 16. It is, thus, the submission of ....
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....SCR 37 (three Judges Bench),the decision in R.R. Chari (supra) was followed. 21. In Nirmaljit Singh Hoon v. State of W.B. (1973) 3 SCC 753 (three Judges Bench), it was sought to be canvassed that the investigation by the police being one ordered by the Chief Presidency Magistrate under Section 156(3) of the Cr.P.C., that investigation was part of the proceedings of the Court. This plea was rejected inter alia on the ground that the police authorities have, under Sections 154 & 156 of the Cr.P.C., a statutory right to investigate into a cognizable offence without requiring any sanction from a judicial authority. Secondly, for taking cognizance under Section190(1)(a) of the Cr.P.C., a Magistrate must not only have applied his mind but must have done so for purposes of proceeding under Section 200 and the provisions following that Section. The application of mind only for ordering investigation under Section 156(3) or issuing a warrant for purposes of investigation could not be said to have taken cognizance of the offence. 22. Devarapally Lakshminarayana Reddy v. V. Narayana Reddy (1976) 3 SCC 252 (three Judges Bench) - Mr. Prashant Bhushan referred to the aforesaid judgment for....
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....; .... .... .... "17. Section 156(3) occurs in Chapter XII, under the caption : "Information to the Police and their powers to investigate"; while Section 202 is in Chapter XV which bears the heading: "Of complaints to Magistrates". The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the postcognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to s....
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....e along with its annexure for investigation by the police officer and that was held not to have amounted to having taken cognizance. 25. Subramanian Swamy v. CBI (2014) 8 SCC 682 (five Judges Bench) - It was observed that Section 156 of the Cr.P.C. enables an officer in charge of a police station to investigate a cognizable offence. Insofar as noncognizable offences are concerned, it was found that the police officer by virtue of Section 155 Cr.P.C. can investigate it after obtaining appropriate orders from the Magistrate having power to try such case or commit the case for trial regardless of the status of the officer concerned. In view thereof, the scheme of Sections 155 and 156 of the Cr.P.C. was held to indicate that the local police may investigate a senior government officer without previous approval of the Central Government. The Constitution Bench while dealing with the inquiry and investigation under the P.C. Act held that there was no basis to classify the two sets of public servants differently on the ground that one set of officers is decision-making officers and not the other set of officers. 26. Despite the aforesaid catena of judgments, a different path has ....
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....sp; .... .... .... .... (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby; (b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision i....
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....ns and do find a divergence of opinion, which ought to be settled by a larger Bench. There is no doubt that even at the stage of 156(3), while directing an investigation, there has to be an application of mind by the Magistrate. Thus, it may not be an acceptable proposition to contend that there would be some consequences to follow were the Magistrate to act in a mechanical and mindless manner. That cannot be the test. 34. The catena of judgments on the issue as to the scope and power of direction by a Magistrate under Chapters 12 & 14 is well established. Thus, the question would be whether in cases of the P.C. Act, a different import has to be read qua the power to be exercised under Section 156(3) of the Cr.P.C., i.e., can it be said that on account of Section 19(1) of the P.C. Act, the scope of inquiry under Section 156(3) of the Cr.P.C. can be said to be one of taking 'cognizance' thereby requiring the prior sanction in case of a public servant? It is trite to say that prior sanction to prosecute a public servant for offences under the P.C. Act is a provision contained under Chapter 14 of the Cr.P.C. . Thus, whether such a purport can be imported into Chapter 12 of th....
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.... as Principal Secretary, PHED. In fact, the officer working as the Principal Secretary, PHED has not been arrayed as a respondent. There is no allegation made against the Secretary/Principal Secretary to the Chief Minister. The allegation is of collusion of the respondents. 40. In terms of the averments in the application, respondent No.1 sought to point out that there are only two references to him as accused No.1 - Para 4(iv) and Para 8. These are in the context of inviting tenders, shortage of budget for running the current projects and the report of stated accused No.1 as the Principal Secretary. The second reference is to the stated accused No.1 as the Chief Secretary, who wrote a proposal to the Finance Department whereupon the Finance Secretary expressed his inability for making available such a huge amount. Once again, respondent No.1 was not holding the post of the Chief Secretary nor is the Chief Secretary then arrayed as a party. 41. Our attention was also drawn to the notings file, which are of the Chief Engineer (SP) and approved by the Secretary, PHED and the Hon'ble Minister, PHED. It is, thus, alleged that respondent No.1 was neither involved with the decis....