(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 State 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."
We now feel called to delve into the case of Prakash Singh Badal in which it is substantially observed in para 44 and 47 that "mere non description of the offences in detail is not material. At the stage of framing of charge, it can be urged that no offence is made out...."
In para 47 , it has been observed that "Law requires that before the sanctioning authority material must be placed so that the sanctioning authority can apply his mind and take a decision."
In the case of Hardeep Singh Vs. State of Panjab reported in (2009) vol.60 SCC page 785, it has been held that the report contemplated by Section 173 should contain information required by the said provision. The Investigating Officer is neither expected to record findings of fact nor to give clean chit by exercising power of a court or judicial authority.
In the case of Fakhruddin Ahmad Vs. State of Uttranchal(2008) vol. 17 SCC 157, the Apex Court has held that it is trite that the Magistrate is not bound by the opinion of the Investigating Officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and to decide whether an offence has been made out or not. It was further mentioned that the purpose of the police report under Section 173 (2) of the court, which will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom is primarily to enable the Magistrate to satisfy himself whether on the basis of the report and the material referred therein, a case for cognizance is made out or not. (Emphasis supplied.
In the case of M.C. Mehta (Taj Corridor Scam) v. Union of India, (2007) 1 SCC 110, ''Lastly, the term "investigation" under Section 173(2) of the Criminal Procedure Code includes opinion of the officer in charge of the police station as to whether there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the case to the court concerned or not. This opinion is not legal evidence. At the stage of Section 173(2) the question of interpretation of legal evidence does not arise. In any event, that function is that of the courts.'' (Emphasis supplied.) In K. Veeraswami v. Union of India reported in (1991 SCC (Cri) 734), it has been held in para 76 as under;
"76. The charge-sheet is nothing but a final report of police officer under Section 173(2) of the Criminal Procedure Code. Section 173(2) provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (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 had been released on his bond and, if so, whether with or without sureties; and (g) whether he has been forwarded in custody under Section 170. As observed by this Court in Satya Narain Musadi v. State of Bihar (1980) SCC (Cri.) 660 that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the Magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the court to inquire into the offence and the necessary information is being sent to the court. In fact, the report under Section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report of the investigating officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt of the accused at a later stage i.e. in the course of the trial of the case by adducing acceptable evidence." (Emphasis supplied) Section 173 (2) (1) (d) Cr.P.C. postulates that whether any offence appears to have been committed and, if so, by whom. It is clear from punctilious reading of the provision of Section 173 Cr.P.C that after completing the investigation, he has to submit only a report to the Magistrate and in accordance with Section 173 (2) (1)(d), he has to mention the offences which may appear to have been committed. The very nature of the police report as provided under Section 173 is the satisfaction of the Investigating Officer. The value of the police report has been considered by the Apex Court in catena of decisions. In India Carat (P) Ltd v State of Karnataka, (1989) 2 SCC 132 at page 137, the Apex Court in para 13 observed 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. 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)(b) and issue process straightway 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 unearthed 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 complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued." (Emphasis supplied.) In Minu Kumari v State of Bihar, (2006) 4 SCC 359, the Apex Court in para 11 observed as under:
"When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations 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 either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take cognizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. [See M/s. India Carat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885)]. (Emphasis supplied).
In Uma Shanker Singh v State of Bihar (2010) 9 SCC 479, the Apex Court in para 19 observed as under:
"19. The law is well settled that even if the investigating authority is of the view that no case has been made out against an accused, the Magistrate can apply his mind independently to the materials contained in the police report and take cognizance thereupon in exercise of his powers under section 190 (1) (b) Cr.P.C." (Emphasis supplied.) In Nupur Talwar v C.B.I (2012) 2 SCC 188, the Apex Court held as under:
"16.Section 190 of the Code lays down the conditions which are requisite for the initiation of a criminal proceeding. At this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion irrespective of the views expressed by the police in its report and may prima facie find out whether an offence has been made out or not. (Emphasis supplied.) In view of the decisions mentioned herein above, it would transpire that the police report carries the complexion of only an opinion of the Investigating Officer. Therefore, at this stage it cannot be said that offence under Section 420, 467 and 468 etc or offences under the P.C. Act have been committed by the respondents. The Magistrate under Section 190 Cr.P.C takes cognizance of the offence and not of the offenders. At this stage, if the sanction is requisite, in the absence of sanction, cognizance cannot be taken by the Magistrate as the Sections in which offences have been committed are to be considered at the time of framing of charge. The magistrate can disagree with the opinion of the Investigating Officer. He has to exercise his discretion irrespective of the views expressed by the police in its report.
ISSUING PROCESS UNDER SECTION 204 Cr P.C.
Now we come to deal with the stage for section 204 Cr.P.C. We have also to consider what is the precise test to be applied in relation to section 204 Cr.P.C. Section 204 Cr.P.C being relevant is quoted below.
"204.Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be -
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
Having delved into the provisions of section 204, now It would be useful to delve into decisions of the Apex Court on the point and the first decision on the point is Helios & Matheson Information Technology Ltd v Rajeev Sawhney (2012) 1 SCC 699 at page 703 which is excerpted below.
"12. We have gone through the averments made in the complaint and are of the view that the complaint does contain assertions with sufficient amount of clarity on facts and events which if taken as proved can culminate in an order of conviction against the accused persons. That is precisely the test to be applied while determining whether the court taking cognizance and issuing process was justified in doing so. The legal position in this regard is much too well settled to require any reiteration." (Emphasis supplied.) The next case on the point is Shivjee Singh v Nagenda Tiwary, (2010) 7 SCC 578 at page 585. The Observation of the Apex Court is quoted below.
"18. The expression " Sufficient ground" used in Sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction. This interpretation of the provisions contained in Chapters XV and XVI Cr.P.C finds adequate support from the judgments of this Court in Ramgopal Ganpatrai Ruia V State of Bombay (AIR 1958 SC 97): 1958 Cri LJ 244: 1958 SCR 618., Vadilal Panchal v Dattatraya Dulaji Ghadigaonkar AIR 1960 SC 1113: 1960 Cri LJ 1499: (1961) 1 sCR 1, Chandra Deo Singh v Prakash Chandra Bose AIR 1963 SC 1430: (1963) 2 Cri LJ 307: (1964) 1 SCR 639. Mor,a;kot Somgj Jppm v State pf W.B (1973) 3 SCC 753: 1973 SCC (Cri) 521, Kewal Krishan v. Suraj Bhan 1980 Supp SCC 499: 1981 SCC (Cri) 438, Mohinder Singh v. Gulwant Singh (1992) 2 SCC 213: 1992 SCC (Cri) 361 and Chief Enforcement officer v Videocon International Ltd (2008) 2 SCC 492: (2008) 1 SCC (Cri) 471." (Emphasis supplied.) Thus, at the stage of section 204 Cr.P.C. Magistrate applies his judicial mind to find out whether prima facie case is made out against the person accused. At the stage of cognizance under section 190 Cr. P.C. Magistrate takes the cognizance of the offence and not of an offender.
PRE AND POST COGNIZANCE STAGE.
In connection with the above, we would like to refer the case of Prakash Singh Badal and Bholu Ram (supra), all over again. In the case of Prakash Singh Badal, learned Magistrate had taken cognizance of the offence and summoned the accused persons. Thereafter, an objection was raised by the accused that the offence has been committed in discharge of the official duty. The Apex Court rejected the submission of learned counsel for the petitioner in view of the fact that the offences under Sections 420, 467 and 468 could not be said to have been committed in the discharge of official duty. In the case of Bholu Ram (supra) the magistrate had summoned the accused under section 319 Cr.P.C.In this conspectus, the case of Prakash Singh Badal (supra) and Bholu Ram (supra) cannot be imported for application to the present case inasmuch as the Magistrate had not taken cognizance of the offence in this case and therefore, it cannot be said with certainty that ex-facie offences under section 420 etc were made out against the respondents at this stage. The submission of learned counsel for the petitioners that the sanction is not required, hinges only on the opinion verbalized by the investigating officer at the time of submission of police report.
At this risk of repetition, we may mention that the case of Prakash Singh Badal (supra) and Bholu Ram were on different stage of the trial. In the instant case, the stage is pre-cognizance while the ratio laid down in Prakash Singh Badal and Bholu Ram relates to post cognizance stage. In Prakash Singh Badal's case the court had summoned the accused under Section 204 Cr.P.C and in Bholu Ram's case, summons were issued under Section 319 Cr.P.C which provides that where, in the course of any inquiry into, or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed and by this reckoning, the above case has got no application to the facts of the present case regard being had to the fact that the Magistrate in the instant case had not taken cognizance of the offence. It is for this reason that it cannot be said that prima-facie offences under Section 420, 467 and 468 etc are made out against the respondents because at this stage, there was no application of judicial mind.
It may be noted that in Prakash Singh Badal's case, proceedings were challenged for want of sanction after cognizance was taken by the court and accused were summoned under section 204 Cr.P.C, while in the case of Bholu Ram, summoning order under Section 319 Cr.P.C was challenged. The stage of summoning is after cognizance of the offence by the magistrate; therefore, there is application of mind by the magistrate. Section 204 Cr.P.C says that if in the opinion of the magistrate, while taking cognizance of an offence, there is sufficient ground for proceeding, he can issue process. The language used in the section itself shows that stage of Section 204 Cr.P.C comes after Section 190 Cr.P.C when the magistrate takes cognizance of an offence and when in his opinion, there is sufficient ground for proceeding, then he issues summons under Section 204 Cr.P.C. The submission of charge-sheet is merely an opinion verbalized by the investigating officer that any offence appears to have been committed. In our firm view, the opinion of the Investigating Officer cannot be equated with the satisfaction of the magistrate; and by this reckoning, at this stage, it cannot be said with certainty that the offences under Sections 420, 467, 468, 471 IPC and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act prima facie have been committed. The duty of the investigating officer is to collect the material and place the same before the magistrate in a form prescribed under Section 173 Cr.P.C. The decisions cited across the bar by the learned counsel for the petitioner, in our opinion, pertain to a different stage i.e. the post cognizance stage. We have scrutinised the decisions in all its ramifications and we find that none of the decisions cited by the counsel for the petitioner is of pre-cognizance stage when only police report has been submitted on the basis of investigation conducted by the investigating officer.
SATISFACTION OF SANCTIONING AUTHORITY The power of granting sanction for the prosecution or refusing sanction for the prosecution is in the exclusive domain of the sanctioning authority.
The submission of the counsel for the petitioner substantially is that no sanction is required for offences under Sections 467, 468, 471 and 120-B IPC and 19 of the Prevention of Corruption Act when the public servant ceases to hold the office which he is alleged to have misused, in view of the law laid down by the Apex Court in the cases of Prakash Singh Badal and Bholu Ram. The submission has been considered extensively supra. It may be noted here that If the offence has been committed by a public servant in the discharge of official duty, for a certain class of public servants obtaining sanction from competent authority is a pre-requisite. It is a sine qua non before taking cognizance. In connection with the above submission, we feel called to refer to a decision of the Apex Court in Matajog Dube's case,(1956Crl.L.J.140) in which it was observed ''that the absolute power to accord or withhold sanction conferred on the Government is irrelevant and foreign to the duty cast on the court, which is the ascertainment of the true nature of the act.'' (Emphasis supplied.) The counsel for the petitioner again placed reliance on the decisions of the Apex Court in Baijnath versus State of MP reported in AIR 1966 SC 220, wherein it was held, ''It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.'' In the case of Rajkishore Roy versus Kamlesh Pandey reported in (2002) 45 ACC 788, it has been held as under:
"7. The law on the subject is well settled. It has been held by this Court in the case of P.P. Unnikrishnan v. Puttiyottil Alikutty (2000 SCC (Cri) 1460) that under Section 197 of the Criminal Procedure Code no protection has been granted to the public servant if the act complained of is not in connection with the discharge of his duty or in exercise of his duty.
8. In the case of P.K. Pradhan v. State of Sikkim (2001 SCC (Cri) 1234 ) it has been held that the legislative mandate engrafted in sub-section (1) of Section 197 is a prohibition imposed by the statute from taking cognizance. It has been held that the offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. It has been held that the only point for determination is whether the act was committed in discharge of official duty. It has been held that there must be a reasonable connection between the act and the official duty. It has been held that for invoking protection under Section 197 of the Code, the acts of the accused, complained of, must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, and the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. It has been held that if the case as put forth by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is held that the question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. It is held that there can be cases when it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. It has been held that the claim of the accused, that the act that he did was in course of the performance of his duty, was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. It has been held that in such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.'' (emphasis supplied) For granting or withholding the sanction, the satisfaction of the sanctioning authority is sufficient. In the case of Subramanian Swami versus Manmohan Singh, reported in (2012) 3 S.C.C 64, para 44, the Apex Court held as under.
"44. We may also observe that grant or refusal of sanction is not a quasi judicial function and the person for whose prosecution the sanction is sought is not required to be heard by the competent authority before it takes a decision in the matter. What is required to be seen by the competent authority is whether the facts placed before it which, in a given case, may include the material collected by the complainant or the investigating agency prima facie disclose commission of an offence by a public servant. If the competent authority is satisfied that the material placed before it is sufficient for prosecution of the public servant, then it is required to grant sanction. If the satisfaction of the competent authority is otherwise, then it can refuse sanction. In either case, the decision taken on the complaint made by a citizen is required to be communicated to him and if he feels aggrieved by such decision, then he can avail of appropriate legal remedy."(emphasis supplied) In the case of Matajog Dobey vs H.C Bhari (1956 Cri L J 140 = AIR 1956 SC 44, the Apex Court observed as under:
"Whether sanction is to be accorded or not is a matter for the government to consider. The absolute power to accord or withhold sanction and foreign to the duty cast one the Court, which is the ascertainment of the true nature of the act."
In Army Headquarters v CBI (2012) 6 SCC 228, the Apex Court in para 83 observed as under:
"If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab initio for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. The question as to whether the act complained of , is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the court. The legislature has conferred "absolute power" on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority." (Emphasis supplied.) Now we have to consider the question whether sanction can be considered at any later stage.
Another submission of the counsel for the petitioner is that it is not necessary to obtain sanction for the prosecution at the initial stage. The question of sanction can be decided at a later stage. In support of his submissions, the counsel for the petitioner has placed reliance on the decision of Suresh Kumar Bhikachand Jain versus Pandey Ajai Bhushan, (1998)1SCC205,wherein, it has been held that accused after appearing before the magistrate raised an objection or produced some documents to show that sanction was necessary. The Apex Court has held, "The question of sanction can be considered at any stage of proceedings." In the case of Matajog Dube, it has been held that the necessity for sanction may surface during the course of trial and it would be open to the accused to place the material on record for showing what his duty was and also the acts complained of were so inter-related or inseparably connected with his official duty so as to attract the protection accorded by law.
The Sanction of the appropriate authority, as discussed above, is necessary to protect a public servant from unnecessary harassment or prosecution. The prosecution starts when the cognizance of offence is taken. It is also to be borne in mind that the cognizance is taken of the offence and not of the offender. After taking cognizance of the offence, the magistrate under section 204 Cr.P.C. is empowered to issue process. This is to save the public servant from the harassment which may be caused to him if each and every aggrieved or disgruntled person is allowed to institute a criminal complaint against him. The protection is extended against prosecution by State agency but the protection is not absolute or unqualified. If the authority competent to remove such public servant accords previous sanction, such prosecution can be instituted and proceeded with. Sometimes complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty but facts subsequently coming to light may establish the necessity of sanction. The necessity may reveal itself in the course of the progress of the case. In the case of Suresh Kumar Bhikamchand Jain v. Pandey Ajay Bhushan, reported in (1998) 1 SCC 205, it has been held as under:
"The legislative mandate engrafted in sub-section (1) of Section 197 debarring a court from taking cognizance of an offence except with a previous sanction of the Government concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from his office save by or with the sanction of the Government touches the jurisdiction of the court itself. It is a prohibition imposed by the statute from taking cognizance, the accused after appearing before the court on process being issued, by an application indicating that Section 197(1) is attracted merely assists the court to rectify its error where jurisdiction has been exercised which it does not possess. In such a case there should not be any bar for the accused producing the relevant documents and materials which will be ipso facto admissible, for adjudication of the question as to whether in fact Section 197 has any application in the case in hand. It is no longer in dispute and has been indicated by this Court in several cases that the question of sanction can be considered at any stage of the proceedings." (Emphasis supplied.) In the case of Matajog Dobey v. H.C. Bhari, (1955) 2 SCR 925 decided by the constitutional Bench of Apex Court it has been held as under:
''The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.'' (Emphasis supplied.) In the case of Prakash Singh Badal Apex Court has held as under:
'' The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.'' (Emphasis supplied.) In the case of P.K.Pradhan Vs State of Sikkim (supra) it has been held that'' It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well.
Thus, it brooks no dispute that the requirement of sanction can be considered at any stage of the trial or even thereafter. The counsel for petitioner relied upon those cases to buttress his submission that cognizance can be taken at a later stage of the trial in which after summoning accused appeared before the magistrate and placed material to show that the act in question was in the discharge of official duty and without a valid sanction for the prosecution case can not proceed against him. The Apex Court in the case of Abdul Wahab Ansari Vs State of Bihar and others, reported in (2000) 8 SCC 500, considered the question as to when the plea that sanction was required to be obtained under section 197(1) of Code can be raised. It is held that previous sanction of the competent authority being a pre-condition for the court in taking cognizance of the offence if the offence alleged to have been committed by the accused can be said to be an act in discharge of his official duty, the question touches the jurisdiction of the Magistrate in the matter of taking cognizance and, therefore, there is no requirement that an accused should wait for taking such plea till the charges are framed.
In a recent decision of the Apex Court in Crl. Appeal No. 1491 of 2012, Om Prakash and others Vs State of Jharkhand decided on 26.9.2012, it has been held in paragraph 37 that ''The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into documents produced by the accused or the concerned public servant at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea.''(emphasis supplied) The counsel for the petitioner could not cite a single decision where sanction for the prosecution was refused by the competent authority and trial proceeded. In the instant case, the competent sanctioning authority has already declined to grant the sanction for the prosecution. The refusal to grant sanction for the prosecution means that the act was done by the public servant in the discharge of official duty or in the exercise of purported discharge of official duty. When the Government refused sanction, Section 114(e) of the Evidence Act raises presumption that the official acts have been regularly performed.
In the case of Prakash Singh Badal, the Apex Court has held that the sanctioning authority is not required to separately specify each of the offences 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 can not be any generalized guidelines in that regard.
In the case of Rambhai Nathabhai Gadhvi Vs State of Gujrat reported in 1997 SCC (Crl.)1169, it was observed as under:
"Taking cognizance is the act which the Designated Court has to perform and granting sanction is an act which the sanctioning authority has to perform. Latter is a condition precedent for the former. Sanction contemplated in the sub-section is the permission to prosecute a particular person for the offence or offences under TADA. We must bear in mind that sanction is not granted to the Designated Court to take cognizance of the offence, but it is granted to the prosecuting agency to approach the court concerned for enabling it to take cognizance of the offence and to proceed to trial against the persons arraigned in the report. Thus a valid sanction is sine qua non for enabling the prosecuting agency to approach the court in order to enable the court to take cognizance of the offence under TADA as disclosed in the report. The corollary is that, if there was no valid sanction the Designated Court gets no jurisdiction to try a case against any person mentioned in the report as the court is forbidden from taking cognizance of the offence without such sanction. If the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction.(emphasis supplied).
Thus,we are of the view that in the instant case sanctioning authority has already refused to grant sanction for the prosecution, therefore, the magistrate is barred from taking cognizance in the matter.
Sri C.B .Pandey, counsel for the petitioners further placed reliance upon a decision of this Court in the case of Vishwanath Chaturvedi versus State of U.P. reported in 2011 (29) LCD 454, and submitted that in those cases where the trial has been monitored by the court or are of great public importance, sanction is not required. Reliance was placed on paragraph 137 where it is held that in every case, sanction for prosecution is not necessary. Cases where investigation is done under the supervision of High Court or Supreme Court and report is prepared and investigating agency records a finding with regard to abuse of public office in a planned, deliberate manner, then sanction under section 19 of the Prevention of Corruption Act or Section 197 of the Cr.P.C shall not be required. The courts may proceed with the trial expeditiously in accordance with statutory provisions after receipt of charge sheet.
We have considered the submission and there is no dispute that if the offence has been committed by a public servant and not connected with the discharge of official duty no sanction is required. It is also relevant to point out that in para 155 of the decision Vishwanath Chaturvedi, certain directions were issued and direction No. (iii) of para 155 is relevant, which is quoted hereinbelow:
"(iii) It shall not be necessary for the CBI or State Agencies to obtain sanction under the statutory provisions with regard to present controversy where from initial stage, prima facie intentionally, deliberately and in a planned manner, the foodgrains were lifted from godown for sale either in open market or to smuggle outside the State of U.P. or to other countries.'' The said decision was challenged in Apex Court in Civil Appeal No.___________ of 2011, cc 5927 of 2011, where at ad interim stay of the direction no. 3 in para 155 and the second part of direction no. (viii) in para 155 requiring the reports to be submitted to the High Court in regard to every investigation at intervals of two months. In regard to direction no. (iv) in para 155 of the impugned order, the period of three months mentioned therein was substituted by the period of six months."
Sri C.B.Pandey further submitted that it is settled law that where allegations contain commission of various offences, in which one requires sanction and others not, then "The court can take cognizance of all the offences" and in support of his submission, he placed reliance upon a decision (2012) 6 SCC 353. We have delved into the ratiocination of the said decision and we are afraid, the said case is not attracted for application to the present case, because that case was related to Sections 498-A and 494 IPC. It may be explained here that section 494 provides for taking cognizance on the basis of complaint and in that respect, the Court had held that where there are two offences, one requiring cognizance on the basis of police report and the other requiring cognizance on the basis of complaint, then cognizance can be taken on the basis of charge-sheet.
Per contra, learned counsel for the respondent submitted that the said decision has no application in this case. The Apex court had considered the explanation of section 2(d) of Cr. P.C. which provides that if after investigation of a cognizable offence police finds that non cognizable offence is found to have been committed and in that event said police report shall be treated as complaint. It is further submitted that under section 198 Cr. PC there is a bar in taking cognizance of offence under Chapter XX of the Code. The cognizance can be taken on the basis of a complaint filed by an aggrieved person and further submitted that police officer can not be treated as an aggrieved person under section 198 Cr.P.C.
We are not deciding the controversy as supra as we have already stated in earlier part of the judgment that the sanctioning authority considers the facts and materials of the case which are collected by the investigating officer during investigation. In this case, sanctioning authority has already refused to accord sanction for the prosecution and the order of sanctioning authority is not challenged before us.
Next submission of the counsel for the petitioners is that this court should direct the CBI to challenge the order of the magistrate of refusal to take cognizance or direct the designated court to proceed in accordance with law. In connection with this submission, it is necessary to point out that in the absence of sanction for the prosecution magistrate or designated court can not proceed in accordance with law. Therefore, this court can not issue any such direction which is not in accordance with law. The protection given under section 197 Cr.P.C is to protect responsible public servants against the institution of possible vexatious criminal proceedings for offenses alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servant to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause and power to grant or refuse sanction is the exclusive jurisdiction of the sanctioning authority. As observed by the Apex Court in the case of Army Head quarter Vs CBI (supra) ''the legislature has conferred "absolute power" on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority." In the case of Rambhai Nathabhai Gadhvi Vs State of Gujrat (supra) it has been held, "If the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction.'' In view of the above, there can not be any such direction to trial court to proceed after refusal of sanction for the prosecution.
Another submission of the counsel for the appellant is that the designated court should direct the CBI to carry out further investigation. We fail to understand as to why this prayer has been made when the CBI after investigation found sufficient material for prosecution. The counsel for the appellants could not point out any infirmity in the investigation or that it was not done properly. Only grievance of the counsel for the petitioners was that the CBI should not have approached sanctioning authority after submission of the charge sheet in the court on the ground that the Apex court had directed that after the completion of the investigation report shall be placed before the magistrate and he shall proceed in accordance with law. We have considered the submission and from a perusal of the charge sheet quoted in earlier paragraph of the judgement it is clear that the investigating officer was of the opinion that sanction for the prosecution was required in the case and he also applied for the sanction for the prosecution after filing of the report. We are of the opinion that there is no illegality in applying for obtaining sanction for the prosecution when investigating officer was of the opinion that the offence alleged to have been committed are in the discharge of official duty and we are of the view that the action of the investigating officer can not be said to be wrong because the sanctioning authority refused to accord sanction. Another aspect of the matter is that at the stage of conclusion of the investigation, the investigating officer has to apply for sanction in case investigating officer is of opinion that offence has been committed by the accused. However, in case he comes to the conclusion that no offence is made out he need not approach the sanctioning authority to accord sanction for filing the report. It is also necessary to mention the decision of State Vs Raj Kumar Jain, reported in 1998 SCC (Crl) 1485, the Apex Court considered the question whether CBI was required to obtain sanction from the authority before approaching the court for accepting the report under section 173 (2) Cr.P.C. This question was considered in the backdrop of the fact that CBI which had investigated the case registered against the respondent under section 5 (2) read with section 5 (1) (e) of the 1947 Act found that the allegation made against the respondent could not be substantiated. The Special Judge declined to accept the report submitted under section 173 (2) Cr.P.C by observing that CBI was required to place materials collected during investigation before the sanctioning authority and it was for the authority concerned to grant or refuse sanction. The Special Judge opined that only after the decision of the sanctioning authority, CBI could submit the report under Section 173 (2). The High Court dismissed the petition filed by CBI and confirmed the order of the Special Judge. (See para 4 of the decision).
In para 5 of the said decision the Apex Court observed as under:
"5. From a plain reading of the above section, it is evidently clear that a court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above section, the legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions. Viewed in that context, CBI was under no obligation to place the materials collected during investigation before the sanctioning authority, when they found that no case was made out against the respondent. To put it differently, if CBI had found on investigation that a prima facie case was made out against the respondent to place him on trial and accordingly prepared a charge sheet (challan) against him, then only the question of obtaining sanction of the authority under section 6 (1) of the Act would have arisen for without that the court would not be competent to take cognizance of the charge sheet. It must therefore, be said that both the Special Judge and the High Court were patently wrong in observing that CBI was required to obtain sanction from the prosecuting authority before approaching the court for accepting the report under section 173 (2) Cr.P.C...." (Emphasis supplied.) In the case of Matajog Dobey, the Apex Court has held that whether sanction is to be accorded or not is a matter for the government to consider. The absolute power to accord or withhold sanction conferred on the Government is irrelevant and foreign to the duty cast on the court, which is the ascertainment of the true nature of the act.
The counsel for the appellant also challenged the order dated 5.6.07 whereby the designated court refused to proceed against Ms Mayawati and Naseemuddin. It is submitted that the designated court did not pass any order regarding prosecution of Ms Mayawati and Sri Naseemuddin and in consequence, it violated the direction of the Apex court. All that was stated by the Apex Court was that after the conclusion of investigation report shall be placed before the magistrate who shall proceed in accordance with law. The law is well settled that when the police report is placed before the court, the court can accept, reject or direct further or re-investigation but as we have pointed out earlier, such an order can be passed only when magistrate takes cognizance of the case. Section 197 CrPC bars the cognizance in the absence of a valid sanction for the prosecution, if the offence has been committed by the public servant in the discharge or purported discharge of official duty. In the absence of sanction for the prosecution the magistrate had to ignore the police report or reject the police report.
In Nagraj v State of Mysore AIR 1964 SC 269, the Apex Court in para 18 observed as under:
"18. The last question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government, what should be the procedure to be followed by it, i. e., whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the proceedings and pass no formal order of discharge or acquittal as contemplated in the case of a prosecution under the Code. The High Court has said that when the Sessions Judge be satisfied that the facts proved bring the case within the mischief of S. 132 of the Code then he is at liberty to reject the complaint holding that it is barred by that section. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact no such order can be passed. If S. 132 applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void, the Court having no jurisdiction to take those proceedings. When the proceedings be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rejected." (Emphasis supplied.) In view of the discussion made hereinabove, the order passed by the designated court is perfectly in accordance with law. The petitioners are not entitled to any relief as claimed. All the writ petitions being devoid of merit are hereby dismissed.
5.11.2012 MH/LN