TaxTMI 
TaxTMI 
2025 (11) TMI 2078
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.......................................................... 14 Conclusion and Directions ....................................................... 43 SANJAY KAROL J., Leave granted. THE APPEAL 2. The Appellant is aggrieved by the High Court of Judicature at Patna's refusal in exercising its inherent powers under Section 482 of the Code of Criminal Procedure, 1973 [Hereinafter referred to as 'CrPC] in terms of judgment and order dated 9th May 2025 [Impugned judgement] passed in Criminal Miscellaneous No. 62048 of 2023, wherein the prayer was to quash and order taking cognizance dated 1st June 2022 passed by the learned Chief Judicial Magistrate, Sahasra in connection with Sahasra Sadar P.S Case No. 112 of 2005 dated 24th April 2005. FACTUAL ASPECTS 3. As can be seen, the genesis of this case is over twenty years old. It is necessary to recapitulate past events in order to appreciate the context in which the impugned judgement is under challenge before us. I. The Appellant is an officer of the Indian Administrative Services, Bihar Cadre. He was posted as District Magistrate-cum-Licensing Authority, Sahasra, Bihar, on 24 December 2002 and remained in the pos....
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....e for early warning wherever there is an unprecedent spur in issue of arms license in a particular district. Action taken in the matters may kindly be intimated to the Ministry. Yours Faithfully Director, Security." III. For compliance of the directions issued in the above quoted extract, one Bal Krishna Jha, ASI was deputed to collect information and during such gathering of information, it was found that 7 persons to whom arms licences had been issued were unverified. The details of these persons as given in the FIR, lodged upon the statement of the Station House Officer, PS Saharsa, are as under: 1. Omprakash Tiwari S/o Jagtanand Tiwari, R/o patna, presently R/o Chitragupt Nagar, Kayasth Tola, Saharsa. 2. Smt. Rani Durgawati, W/o OmprakashTiwari, R/o Patna, presently R/o Chitragupt Nagar, Kayasth Tola, Saharsa. 3. Hariom Kumar S/o Jago Singh, Ward No. 15, Bokaro Shankarwar Tola, P.S. Mokama, District- Patna, presently at Shankar Chowk, Saharsa. 4. Abhishek Tripathi, S/o Vishwajeevan Tripathi, Village- Rajendra Tola, Balwa Tal, Motihari, at present Kayasth Tola. 5. Uday Shankar Tiwari S/o Jagtanand T....
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....alua Taal, Motihari, District - Champaran. The enquiry of name and permanent address of Abhishek Tripathi was conducted through Superintendent of Police, Motihari. After enquiry, it was found no person in the name of Abhishek Tripathi resides on this address, in whose favour Arms License was issued by the then District Magistrate Sh. Chongthu. Meaning thereby is that the matter of issuing Arms License in favour of a fake person in deliberate manner and by hatching criminal conspiracy without getting done the verification of temporary/ permanent address, has come into the light, in which, the criminal involvement of the then District Magistrate, Saharsa Sh. Chongthu clearly appears. 2. The then Superintendent of Police, Saharsa in his Report No. 3 issued vide his Office Memorandum No. 920/ C.R. dated 11.04.2005, has found the allegation against the then District Magistrate Sh. Chongthu to be false, whereas, in the same Report, it is mentioned to not to verify the alleged Licensee Abhishek Tripathi. 3. Also in Report-3, the Investigating Officer has been ordered to submit chargesheet also against those named accused persons, whose' permanent/ temporary addresses....
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....ted to the sanctioning of arms licenses to these 16 persons. It would be really helpful if the above said documents are supplied to me so that I can explain things in proper manner otherwise in absence of these required documents, my explanation would not be proper and complete. 2. That as regards to the earlier papers supplied to me and after perusing the same, it seems to me that various office orders issued from the Ministry of Home Affairs, Government of India are meant for streamlining the procedure of issuing arms licenses which inter alia, state that a decision has been taken to take steps, such as, all arms licenses issued for a period in Jammu Kashmir and Punjab be verified, the District Magistrate should delegate his powers of issuance of license to another officer, the licensing authority be advised to furnish Return on the licenses issues on quarterly basis, the records of licenses should be computerized, licensing authority is required to obtain report from the officer in charge of the nearest police station and if lapses took place then strict departmental proceeding should be taken. 3. That another office order talks about scam occurred in the State....
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....3 & 14 of the Arms Act, 1959 and Rules 51,51-A, 52 and 53 of the Arms Rules, 1962 which deal with grant of arms licenses and police verification is not since qua non for issuance of license. 11. That it is pertinent to mention here that owing to many a reasons, it necessitated the Ministry of Home Affairs to issue circular/office order for streamlining the procedure of issuing arms Licenses vide letter dated 29.10.2004. It is mentioned therein that in order to plug the loopholes in the existing procedure of issuing arms licenses, it has been decided to take steps indicated in the succeeding paragraphs and thereafter, few steps and guidelines have been provided. The humble submission is that the guidelines contained in the said circular would be prospectively used and there cannot be any retrospective effect of the said guidelines. Therefore, the very seeking of explanation on the basis of the guidelines which call for taking strict departmental proceeding would not be applicable in the present case as the licenses have been issued before the issuance of the guidelines. 12. That it is humbly requested to kindly provide the documents related to all 15 persons so tha....
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....ion and all that he did was exercise such discretion in a bona fide manner. Secondly, it is submitted that none of the chargesheets even as much as remotely suggest, conspiracy between the appellant and the licensees or any act of corruption on part of the former. This reinforces the bona fide exercise of power. Since the alleged misuse of this power under the Arms Act is the standalone charge against the appellant, the fact that he has been discharged in the departmental proceedings acquires importance, as the same is fatal to criminal prosecution on the same facts, is the third limb of the submissions. Fourthly, it is submitted that the chargesheet in which the appellant has eventually been named has been submitted after an inordinate delay of 15 years that too in the absence of any fresh material/evidence. Fifthly, some of the accused licensees have been acquitted by the High Court by orders dated 5th February 2020 and 23rd February 2024 passed in Criminal Misc No.5536 of 2016, Criminal Misc No. 29456 of 2016 and Criminal Misc No. 63786 of 2021. Next it is urged that the order granting sanction against the appellant is a non- speaking order and defeats the object of Section 197 ....
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....ied) It flows from the above that calling for a police verification report is mandatory and the same is to be sent to the licensing authority within a prescribed time. What is meant by prescribed has been clarified by Section 2 (g) which defines prescribed to be that which has been described in the rules made under the Arms Act. The rules in vogue at the relevant point in time i.e., 2002-2004 were the Arms Rules 1962. A perusal thereof reveals that the rules did not prescribe a timeline within which the police was to submit a report or the licensing authority is to either grant or deny a license. 8. It is a generally understood position in law that when a legislation or a rule does not provide for limitation/time limit for a particular aspect, the same is to be governed by the standard of reasonable time. [See: Collector v. D. Narsing Rao [(2015) 3 SCC 695].] We may also refer to an earlier decision given by this Court in Collector v. P. Mangamma [(2003) 4 SCC 488], as follows: 5. A reasonable period would depend upon the factual circumstances of the case concerned. There cannot be any empirical formula to determine that question. The court/authority considering the ....
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....to 'prescribed time' can be the time specified by the authority seeking the police report in such letter itself. This too, is absent from the record before us. The State and the learned Single Judge have chosen to focus on only one instance. Be whatsoever the contours of the application of doctrine of reasonable time, it only stands to reason that when no time stands clarified it is expected that the Authority may act appropriately within a logically sound period of time. In question are the appellant's actions in so far as 16 licenses are concerned. However, the record only speaks, to perhaps one instance, where a mere two days after the request for the report of police was made, that the license was issued, and the papers in that regard and do not specify the time granted by the appellant/the appellant's office to furnish the report. It cannot be doubted that the particular instance of application by Kanhaiya Kumar Singh and Chandan Kumar Singh would not be justified as a proper exercise of discretion when licenses have been granted after only two days, but given that the State has remained silent as to the timeline in other cases, we close consideration of this i....
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.... 11. Section 197 which mandates the grant of sanction before commencement of prosecution for public servants, reads: "197. Prosecution of Judges and public servants .- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction 6 [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of 2014)]- (a) in the case of a person who 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 time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government :... " The ambit of this Section has been discussed in various judgments of this Court. It will be necessary to refer to them as under: 11....
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.... of official duties, sanction would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 CrPC would apply. 39.5. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The court is not to be a sanctioning authority. 39.6. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of court at a later stage, finding to that effect is permissible and such a plea can be taken first time before the appellate court. It may arise at inception itself. There is no requirement that the accused must wait till charges are framed. 39.7. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is ope....
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.... of criminal prosecution does not hang over the heads of the officials in discharge of their public duty. At the same time, it is not intended to protect officers who have transgressed the boundaries of their duty for some act/benefit which otherwise would not be termed acceptable. An aspect connected with this object, is that the authority granting sanction does not do so mechanically. This is a layer of protection envisioned by this Section. In other words, when allegations are made, it is not for the authorities to grant sanction simply on the basis of the allegations but it is also that they should examine the materials placed by the investigating agency and come to a prima facie satisfaction thereon, about the officer having some or the other involvement in the alleged offence/crime. In Mansukhlal Vitthaldas Chauhan v. State of Gujarat [(1997) 7 SCC 622], this Court held that the order of granting or refusing sanction must show application of mind. The relevant paragraphs thereof are extracted hereunder: "17. Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords p....
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....t is a public servant who would be covered thereby. The substance of why a sanction is required was however entirely missed by the sanctioning authority. The same is bad in law and must be, set aside. All consequential actions including the order taking cognizance, therefore would be quashed. 13. There is another ground which needs detailed consideration. The permission for further investigation was given in 2009 and the chargesheet that was submitted as a result thereof was dated 31st August 2020 that is after a period of 11 years. This is after the fact that in the second chargesheet, the investigating authorities have concluded the charges against the appellant to be false. In 2024, the impugned judgment records that even after the cognizance was taken nearly two years ago in 2022, the trial had not moved forward. As we approach the end of 2025, the question to be considered is as to how long this can continue. 14. Various judgments of this Court have emphasised the right to speedy trial as being an important facet of Article 21 of the Constitution. Timely completion of investigation is inherent thereto. 14.1 A Constitution Bench of this Court in Abdul Rehman Antu....
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....ollowed in their letter and spirit, there would be little room for any grievance. The fact however, remains unpleasant as it is, that in many cases, these provisions are honoured more in breach. Be that as it may, it is sufficient to say that the constitutional guarantee of speedy trial emanating from Article 21 is properly reflected in the provisions of the Code." The Court laid down guidelines regarding fair trial. Regarding investigation, which is the relevant facet here, the direction issued is as under: " ... (2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view. (3) The concerns underlying the right to speedy trial from the point of view of the accused are: (a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) the worry, anxiety, expense and disturbance to his vocatio....
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....in Article 21 of the Constitution of India. The first written articulation of the right to speedy trial appeared in 1215 in the Magna Carta: "We will sell to no man, we will not deny or defer to any man either justice or right." Article 21 of the Indian constitution declares that "no person shall be deprived of his life or personal liberty except according to the procedure laid by law." Justice V.R. Krishna Iyer in Babu Singh v. State of U.P., (1978) 1 SCC 579 : AIR 1978 SC 527 remarked, "Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to "fair trial" whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings." In the case of Sheela Barse v. Union of India, (1986) 3 SCC 632 : (1986) 3 SCR 562, this Court has held that the right to speedy trial is a fundamental right. Further it was stated by this Court that the consequence of violation of the fundamental right to speedy trial would be that the prosecution itself woul....
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....of 1973 - that the architecture of criminal procedure began to incorporate judicial control and procedural accountability, through provisions such as Sections 61, 167 and 173(1) of the 1898 Code and 156(3), 167, and 173(1), 173(2) of the 1973 Code, which introduced oversight mechanisms (in Section 156(3) and 167) and prescribed reasonable limits (in Section 173(1), 173(2)) for the duration of investigations. In its latest avatar, the legislation codifying criminal procedure i.e. BNSS 2023, also provides similar timelines under Sections 187, 193, 230, 250, 251,262, 263 etc. 16. At this juncture, we would not be out of place to refer as to how other jurisdictions provide for and deal with speedy trial, in same and similar terms as has been held by this Court. 16.1 In the United States of America, the Sixth Amendment to the Constitution [https://constitution.congress.gov/constitution/amendment-6/], introduced by the Bill of Rights, 1791 provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been pre....
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.... lower courts, laid down a four-pronged test, commonly known as the Baker Test. The Court is to consider-the length of the delay, the reason for the delay, when the defendant asserted his right to speedy trial, and the prejudice suffered by the defendant as a result of the delay. 16.1.3 In Doggett v. United States [1992 SCC OnLine US SC 94], the Court was concerned with the case in which an alleged drug peddler was indicted for conspiracy to distribute cocaine. The accused had apparently fled the jurisdiction of the United States. Even though the information of the outstanding arrest warrant had been sent to all posts of the United States Customs, he could only be arrested 6 years after his return to the country, and in total, 8 1/2 years after his indictment. Souter J., for the majority held: " ... We have observed in prior cases that unreasonable delay between formal accusation and trial threatens to produce more than one sort of harm, including "oppressive pretrial incarceration," "anxiety and concern of the accused," and "the possibility that the [accused's] defense will be impaired" by dimming memories and loss of exculpatory evidence. Barker, 407 U. S., ....
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....se acceptable in simple cases. Systemic or institutional delays will also weigh against the Crown. When considering delays occasioned by inadequate institutional resources, the question of how long a delay is too long may be resolved by comparing the questioned jurisdiction to others in the country. The comparison of similar and thus comparable districts must always be made with the better districts, not the worst. The comparison need not be too precise or exact; rather, it should look to the appropriate ranges of delay in determining what is a reasonable limit. In all cases it will be incumbent upon the Crown to show that the institutional delay in question is justifiable. Certain actions of the accused, on the other hand, will justify delays. A waiver by the accused of his rights will justify delay, but the waiver must be informed, unequivocal and freely given to be valid. 16.2.2 Just two years later, the Court in R v. Morin [[1992] 1 SCR 771] in an attempt to refine the holding in Askov, (supra) held that institutional delays would not on their own, constitute a violation of section 11 (b) of the Charter. The factors to be considered were expanded as hereinbelow, and th....
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....(2) they cannot reasonably be remedied. It is obviously impossible to identify in advance all circumstances that may qualify as exceptional for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are exceptional will depend on the trial judge's good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. If the exceptional circumstance relates to a discrete event (such as an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay. If the exceptional circumstance arises from the case's complexity, the delay is reasonable and no further analysis is required. An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay. Most significantly, the absence of prejudice can in no circumstances be used to justify delays after the presumptive ceiling is bre....
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....untries also leads us to a similar conclusion. The Supreme Court of Canada has although given timelines, it has also recognised that the possibility of extension of the said timeline is open. The four- prong test as in Baker, the Askov - Morin framework that we have discussed above, has a subjective element, which keeping in view the realities of the Indian judicial system, is the only option that can be practically applied. Strict timelines, if laid down would be in ignorance of ground realities. 19. Coming back to the present case, why the investigation in this case took more than a decade to be completed is lost on us. Apparently, it was found that the licenses issued by the appellant were also issued to a fictitious person even at the time when the order for further investigation was taken. Out of the 16 accused persons one person stood charge-sheeted in terms of the first chargesheet and the remaining, excluding the appellant and one Abhishek, were charge-sheeted by way of the second chargesheet. When only the actions of the appellant were subject matter of investigation by the time permission was taken as above - 11 years is quite obviously a timeline afflicted by delay. N....
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....r investigation is being made with the leave of the Court, judicial stewardship/control thereof, is a function which the court must perform. (ii) Reasons are indispensable to the proper functioning of the machinery of criminal law. They form the bedrock of fairness, transparency, and accountability in the justice system. If the Court finds or the accused alleges (obviously with proof and reason to substantiate the allegation) that there is a large gap between the first information report and the culminating chargesheet, it is bound to seek an explanation from the investigating agency and satisfy itself to the propriety of the explanation so furnished. The direction above does not come based on this case alone. This Court has noticed on many unfortunate occasions that there is massive delay in filing chargesheet/taking cognizance etc. This Court has time and again, in its pronouncements underscored the necessity of speedy investigation and trial as being important for the accused, victim and the society. However, for a variety of reasons there is still a lag in the translation of this recognition into a reality. (iii) While it is well acknowledged and reco....