CRLMP/357/1998 of LADU RAM VERMA Vs STATE AND ANOR on 20 December 2007

SB CRIMINAL MISC. PETITION NO.357/1998.

Ladu Ram Verma Vs. The State of Raj. & Anr.

Date of order:- 20[th] December, 2007

HON'BLE MR. JUSTICE RAGHUVENDRA SINGH RATHORE.

Mr. Rinesh Gupta, for the petitioner.Mr. Jainendra Jain, Public Prosecutor.

This Criminal Misc. Petition under

Section 482 Cr.P.C. is directed against the orderdated 17.01.1998 passed by the learned SpecialJudge, Anti corruption Cases, Jaipur in FirstInformation Report No.129/1995, whereby it has directed the prosecution to put up the filebefore the concerning authority to decide thematter to grant sanction or otherwise forprosecutionagainstthepetitionerandthereafter, to place the result of the investigation before him.

2. In brief, the facts of the case arethat the petitioner, at the relevant time, wasworking as Chief Depot Manager, Rajasthan StateRoad Transport Corporation, Ajmer Depot, Ajmer.

The complainant non-petitioner No.2 had submitteda complaint on 21.9.1995 to the AdditionalSuperintendent of Police, Rajasthan State Bureauof Investigation, Ajmer, alleging a demand ofRs.1,000/- by the petitioner for passing anorder in favour of the complainant in respect ofthe case where the he remained absent for threedays from duty, about 14 year back. Thereafter,a trap is said to have been arranged by the Addl.S.P. and he along with the complainant came tothe house of the petitioner.

3. The alleged amount was recovered by theMembers of the State Bureau of Investigation fromBalu Ram, a driver. When the hands of thepetitioner were washed, no phenolphthalein wasfound on it.

4. Thereafter, the Bureau of Investigation,Ajmer, investigated the matter and came to theconclusion that no case was made out against thepetitioner and the allegation levelled by thecomplainant was with the malafide intention.

After holding that no case under the Preventionof Corruption Act was made out against thepetitioner, the Investigating Officer submitted afinal report in the matter on 30.12.1996 beforethe trial Court (Annexure-1). A notice was thenissued to the complainant non-petitioner No.2,who appeared before the Court-below, through hiscounsel, and contested the case. The learnedtrial Court after hearing both the parties, onthe question of final report, did not pass anyorder on it and directed the InvestigatingOfficer to place the matter before the concerningauthority for the purpose of granting sanction orotherwise for prosecuting the petitioner. Furtherit was ordered that thereafter, the result of theinvestigation be again placed before it.

5. It is against the order, passed by theCourt-below, on 17.1.1998 that the accusedpetitioner has preferred this Misc. Petitionbefore this Court. Learned counsel for thepetitioner has seriously contested the matter onvarious grounds and submitted that the order

passed by the Court-below, is illegal, withoutjurisdiction and contrary to the establishedprocedure of law. Learned counsel for thepetitioner has invited my attention to thevarious reasons as given in ground (c) of hispetition, given by the Investigating Officer forarriving at a conclusion that no case is made outagainst the accused petitioner. Therefore, he hasfurther submitted that the final report submittedafter investigation ought to have been acceptedby the learned trial Court. It has also beensubmitted that a bare reading of the impugnedorder goes to show that the learned trial Courthas indirectly given its mind for not acceptingthe final report. It seems that the Court-belowwas not satisfied with the final report,otherwise, there was no occasion for it forissuing a direction as mentioned above, to theInvestigating Agency. In this view of the matter,the learned counsel for the petitioner hassubmitted that the learned trial Court hasexceeded it jurisdiction and passing of theimpugned order certainly amounts to abuse of the

process of the Court. Learned counsel for thepetitioner has urged that there is no procedurefor the trial Court to direct the InvestigatingOfficer, to first place the file before theconcerning authority with regard to sanction forprosecution, before deciding, accepting orotherwise of the final report.

6. Learned Public Prosecutor has supportedthe impugned order passed by the Court-below. Hehas submitted that under the relevant law, asanction for prosecution against the delinquentofficer is a condition precedent beforeinitiating the prosecution against him. He hasalso submitted that the matter would still beplaced before the trial Court and further orderswould be passed by it, in accordance with law.

7. Before going to the jurisdictionalpowers of the trial Court and legality of theimpugned order dated 17.1.1998, I consider itproper to first deal with the question withregard to locus-standi of the accused petitioner in filing the present petition. This is relevantin view of the fact that prior to the stage oftaking cognizance by a Court, the accusedpetitioner does not come into picture at all. Inthe instant case, the final report had beensubmitted by the Investigating Agency and therequirement of law has been fulfilled by issuingnotice to the complainant who had appeared beforethe Court, through his counsel and contested thecase. Admittedly, no cognizance has been takennor any process has been issued so far againstthe accused petitioner by the trial Court.

8. A bare perusal of the provisions

incorporated in Chapter XV (Sections 200 to204) of the Code of Criminal Procedure, whichprescribe the procedure of private complaint,goes to show that the entire scheme is that theaccused person does not come in the picture atall till a process is issued against him. It is asettled principle of law that the accused may bepresent in person or through his counsel or agentwith a view to inform the proceedings but he has no right to take part in it nor the Magistratehas the jurisdiction to permit him to do so. Thelearned Magistrate cannot put any question to thewitnesses at the instance of the accused nor canhe examine any witness in his defence, though thelearned Magistrate himself is free to put suchquestion to the complainant or his witnesses ashe may think proper. But nothing more than thiscan be done by the learned Magistrate. The rightof the accused to be heard in person is inexistence only when the process is issued underSection 204 of the Code of Criminal Procedure.

9. Likewise, when a first informationreport is filed before the police Officer, theinvestigation commences from the recording of thereport under Section 154 Cr.P.C. and ends withthe submission of the report under Section 173(2) Cr.P.C. The law does not require that thePolice Officer should hear the accused during theinvestigation or when the report is submitted onthe conclusion of it.

10. But, in the facts and circumstances ofthe present case, the question which crops upconsideration is that when the learned SpecialJudge has neither accepted the final report norhad rejected the same and he had issueddirections to place the file before theconcerning authority for grant of sanction orotherwise, then in that situation can thepetitioner challenge such an order by filing apetition before this Court.

11. The nature of order passed by thelearned Special Judge in the present case, in myopinion, is an implied direction to thesanctioning authority to grant sanction forprosecuting the petitioner. In other words, itis by implication that the learned Judge hadrejected the negative report. Such an ordercertainly effects the rights of the petitioner.Apart from implied rejection of the negativereport, the directions to the sanctioningauthority to grant sanction furthermore entitlesthe petitioner to challenge such an order before

this Court. Moreover, the principle of naturaljustice demands that if an order adverse to thepetitioner is passed without giving him anopportunity of hearing, then he may seek redressunder the inherent powers of this Court. I am ofthe considered opinion that this Court, in anorder of present nature passed by the learnedJudge, in order to secure ends of justice and toprevent the abuse of the process of the court canentertain a petition filed by the petitioner.

12. Now coming to the merits of the case,as stated above, the direction issued by thelearned Judge to put the papers before thesanctioning authority for considering the grantof sanction of prosecution of the petitioner,carries with it implied direction to thesanctioning authority to grant sanction.Therefore, the question which arises forconsideration in this case is whether thesanction from the sanctioning authority is a pre-requisite for filing a final report under Section173 Cr.P.C, even when the prosecution on account

of lack of evidence is not in a position tocharge the petitioner with the offences? In otherwords, can the learned Judge, compel theInvestigating Agency, to obtain sanctionparticularly when it is not asking the Court totake cognizance of the offence as there is nosufficient material to link the petitioner withthe offecne.

13. In order to appreciate the saidquestion, it would be worthwhile, to refer someof the relevant provisions. The Prevention ofCorruption Act,1947 had been amended by the actNo. 49/1988. The act was amended to make it moreeffective by widening the coverage and bystrengthening the object. But so far as thescheme of the Act is concerned, there appears tobe no substantial change and that has almostremained the same. Under the Act of 1947 Section6(1) related to sanction for prosecution againstthe public servant which reads as under : - Section 6(1) : - “ No court shall take cognizance of an offence punishable under Section 161 (or Section 164) or Section 165 of the IndianPenal Code or under sub-section (2) (or sub-section 3(A)) of Section 5 of this Act, allegedto have been committed by a public servant exceptwith the previous sanction.”

14. In the act of 1988, Section 19(1) also provides previous sanction for prosecution in thecase of a person, employed in connection with theaffairs of the Union, State Government or otherauthorities. Therefore, this provision isanalogous to Section 6(1) of the Act of 1947except clause 19(3) which provides that on theground of irregularity of sanction, no finding ofthe court can be reversed. The underlying policyto such provisions is that a public servantshould not be unnecessarily harassed and to savehim from malicious prosecution. 15.Now, coming back to the facts of thepresent case, and the aforesaid intention of thelegislatureforobtainingsanctionforprosecution from the competent authority toprotect the public servant against the malicious

prosecution, the question is when the prosecutingagency finds that there is no material, even thenasking it to approach the sanctioning authorityis nothing but an effort in futility. Therefore,in my opinion a bare reading of the aforesaidrelevant provisions of the law makes it clearthat for final report to close the case, nosanction is required. 16.The relevant law does not provide thatthe police was not competent to submit the finalreport in the matter in the absence of previoussanction. The provisions under Section 6 of theAct of 1947 as well as the section 19 of the Actof 1988 only provides that no court shall takecognizance for an offence punishable under, thespecific offences provided therein of the IPC andthe one Prevention of Corruption Act, alleged tohave been committed by a public servant, exceptwith the previous sanction of the authority.Therefore, provision contained in these sectionsis to the taking of cognizance of an offence by acourt and not to the institution of a police caseor the submission of the final report by the police under Section 173 of the code of CriminalProcedure. In other words, the previous sanctionis necessary for the purposes of prosecuting orfiling a charge sheet but is not necessary forthe purposes of filing a final report by theinvestigating agency, as in this case.

17. For the above reasons I set-aside the impugned order dated 17.01.1998, passed by thelearned Special Judge Anti Corruption Cases,Jaipur and remand the case back to the courtbelow to reconsider the final report Bhatt.