THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1894 of 2012 Date:22.01.2014 Between:
Dr.Manmohan Singh . Petitioner.
AND The State of Andhra Pradesh, rep by its Special Public Prosecutor, CBI, High Court of A.P., Hyderabad.
. Respondent.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.1894 of 2012 JUDGMNET:
This revision is preferred against the Judgement dated 13-09-2012 in C.C.No.14 of 2012 on the file of Principal Special Judge for CBI Cases, Red Hills, Nampally, whereunder the Principal Special Judge for C.B.I Cases took cognizance of certain offences against 14 persons and the revision petitioner herein is one among them arrayed as accused No.7.
2. The learned Special Judge took cognizance for the offences under Sections 120-B, 420 & 409 IPC against the revision petitioner herein and directed the investigating officer to obtain sanction orders under Section 19 of Prevention of Corruption Act, 1988 (herein after referred to as ‘P.C. Act, 1988’) in respect of the offences under Section 13 (2) read with 13 (1) (c) (d) of P.C Act, 1988 alleged against the revision petitioner herein. Now aggrieved by the taking cognizance for the offences under Sections 120-B, 420 & 409 IPC, the present revision is preferred.
3. Heard both sides.
4. The main contention of the revision petitioner is that the learned Judge ought not have taken cognizance of the offences alleged in the absence of sanction under Section 197 of Cr.P.C. It is further contended that in the absence of sanction under Section 197 Cr.P.C taking cognizance cannot be sustained. Learned Senior Advocate for the revision petitioner contended that the learned Judge ought to have seen that none of the allegations made in the charge sheet so far as it relates to the petitioner are not sufficient to attract the ingredients of offences alleged against the petitioner. He further contended that all the acts done by the revision petitioner are in discharge of his official functions attached to the office of Secretary, Infrastructure & Investment Department alone but not beyond the scope of his official duties in which case sanction is very much necessary and prosecuting the petitioner without sanction is not sustainable. He further contended that the Council of Ministers have taken a collective decision in their Cabinet Meeting for launching the project alleged in the charge sheet and the petitioner, in pursuance of the decision taken by the Council of Ministers, has processed the files and issued G.Os and nothing beyond that. He further contended that the material on record is not sufficient to conclude that the petitioner concealed certain material facts to the Council of Ministers and facilitated for issue of the G.Os. He further contended that the State Government by letter dated 23- 10-2013 refused sanction under Section 197 Cr.P.C to the petitioner herein therefore in view of the said letter the cognizance taken by the Special Court is to be set aside.
He further contended that Special Court for CBI Cases without application of mind took cognizance mechanically and therefore, the impugned order is liable to be set aside. On the other hand, learned counsel for CBI Cases contended that it is not the stage to consider all the above points urged on behalf of revision petitioner since objection regarding sanction can be considered at any stage. He further contended that at the time of taking cognizance, the Court has to satisfy whether there is sufficient material in support of the allegations levelled against the accused persons and at that stage, it cannot decide merits and demerits. He further contended that the acts alleged against the petitioner are not inconsonance with the assigned duties as such sanction is not required. He further contended that at the time of taking cognizance, it is only subjective satisfaction but not otherwise. He further contended that the petitioner was present in the meeting dated 29-06-2008 and the memorandum for Cabinet Meet was prepared by petitioner and that he prepared the Draft Concession Agreement and whether the petitioner acted in good faith or not is a mater to be decided during trial but not at the time of taking cognizance. He further contended that letter dated 23-10-2013 referred to by the Advocate for revision petitioner cannot be considered since prosecuting agency has not requested the State Government for any sanction under Section 197 Cr.P.C and the Government while expressing its views for sanction under Section 19 of P.C. Act, 1988 mentioned about sanction under Section 197 Cr.P.C without there being any request, therefore, the same cannot be taken into consideration.
5. Now the point that would arise for my consideration is whether the Order of the Court below is legal, proper and correct?
6. Point:- Admittedly, C.B.I did not seek any sanction under Section 197 Cr.P.C from the State Government.
The orders dated 23-10-2010 relied on by revision petitioner is a copy of the letter addressed to the Secretary to Government of India, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, Government of India, New Delhi from the Chief Secretary to the Government of Andhra Pradesh, A.P Secretariat, Hyderabad in connection with submitting the remarks of the State Government in reply to the letter from Government of India regarding sanction under Section 19 of P.C Act, 1988 for the offences under Section 13 (2) read with 13 (1) (c) & (d) of P.C Act, 1988.
7. This letter dated 23-10-2013 is only a communication of the State Government to the Central Government while forwarding the remarks in respect of the allegations levelled against the petitioner.
8. Scope of revisional jurisdiction is truncated one.
The Court while exercising revisional jurisdiction cannot enter into a detailed discussion of the merits or demerits of the case.
9. Section 397 Cr.P.C empowers the High Court or any Sessions Judge to call for and examine the records of the inferior Court for the purpose of satisfying themselves as to the correctness, legality or propriety of any finding, sentence or order recorded or passed. The object is to set right patent defect or error:
(i) The word illegality can only mean incurable irregularity, incurable because of prejudice leading to a failure of justice. It is nothing but contrary to the known principles of law.
(ii) Primary meaning of legality is that everything must be done in accordance with law. Every act of judicial power i.e. every act which affects the legal rights must be shown to have strictly authorised by law. Thus principle of legality has a clear-cut concept.
(iv) Regularity means is the State or Character of being confirmable to whom or with due regard to procedure in other words, it must be shown that order on the face of it is regular and inconformity with the provisions of the statute.
(v) Propriety means conformity with requirement of rule or principle with due regard to procedure. In other words the state or quality confirming to conventionally accepted standards of behaviour or morals.
10. Here the present revision is against taking of cognizance of certain offences against A7 is challenged on the ground that there is no application of mind and that sanction under Section 197 Cr.P.C is a must.
11. The word cognizance was used in the Code of Criminal Procedure to indicate the point when the Magistrate or Judge takes judicial notice of an offence. The cognizance is taken of the offence and not of the offender. Once the Court on perusal of charge sheet is satisfied that the charge sheet discloses commission of offence and there is no reason to reject the charge sheet and proceeds further in the matter, it must be held to have taken cognizance of the offence. The Supreme Court in the case of Darshan Singh Ram Kishan v. The State of Maharastra
[1]
, held that taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of offence and that cognizance takes place as a point when the Magistrate first take judicial notice of an offence.
[2]
In Kishun Singh v. State of Bihar , a similar view was taken. In S.K Sinha, Chief Enforcement Officer v. Videocon International National Limited
[3]
, it is held that at the stage of taking cognizance the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction.
[4]
12. In Anil Saran v. State of Bihar and another , wherein it is held as follows:
“It is now settled law that the Court takes cognizance of the offence and not the offender.
As soon as the Magistrate applies his judicial mind to the offence stated in the complaint or the police report etc., cognizance is said to be taken. Cognizance of the offence takes place when the Magistrate takes judicial notice of the offence. Whether the Magistrate has taken cognizance of offence on a complaint or on a police report or upon information of a person other than the police officer, depends upon further action taken pursuant thereto and the attending circumstances of the particular case including the mode in which the case is sought to be dealt with or the nature of the action taken by the Magistrate.”
13. At the stage of taking cognizance, there is no need to record any reasons by the Magistrate or Judge even at the time of issuing process, there is no obligation on the Magistrate or Judge to record any reasons. Neither Section 190 (1) (A) or Section 204 Cr.P.C requires explicit reasons to be stated because it is imperative the Magistrate or Judge must have taken notice of the accusations and applied his/her mind to the allegations made in the police report and the material filed therewith. When there is no legal requirement that the Magistrate or Judge should write an order showing the reasons for taking cognizance, the contention of the revision petitioner that there is no application of mind cannot be accepted. Further when there is no legal requirement asking the Magistrate or Judges to write a reasoned order insisting them to write reasoned order at the time of taking cognizance would amounts to further burdening them with extra work.
14. The Court need not undertake an elaborate enquiry at the time of taking cognizance as it is not required to pass a reasoned order. As per Section 191 (1) (b) Cr.P.C taking cognizance on police report filed under Section 173 Cr.P.C is an area exclusively within the dominion of the Magistrate. What all Magistrate at that stage is to see is whether there is sufficient ground for proceeding further. Now the revision petitioner challenged the order of the Special Judge on several grounds. One of the ground is that there is no material against the petitioner for taking cognizance. One of the allegation against the revision petitioner is that he processed the file for awarding VANPIC Project by concealing crucial aspects such as 24,000 acres of land from the Cabinet Meeting held on 30-06-2008. The next ground on which the petitioner challenged the order of the Special Judge is that taking cognizance without sanction is bad. The third ground is that the Special Court failed to appreciate the material on record while forming an opinion for taking cognizance. The other ground is that petitioner discharged his duties in accordance with business rules and law and there is no act done beyond the scope of official duties. The other ground contended by the revision petitioner is that material on record does not suggest that the petitioner colluded with the other officials in committing the offence and that the statements of the witnesses recorded by the police do not satisfy the requisite ingredients to make out offences under Sections 120-B, 420 & 409 IPC. The other ground contended by the revision petitioner is that he processed the files and issued Government Orders in pursuance of the decisions taken by the Council of Ministers and they are not his independent decisions. Now all these contentions cannot be looked into at the time of taking cognizance. What is required at the time of taking cognizance is whether the allegations levelled against the accused persons in the final report do constitute any offence or not. Now at this stage, it is not appropriate to go and dwell deep into these grounds taken by the petitioners while exercising the revisional jurisdiction under Sections 397 & 401 Cr.P.C when there is no illegality in taking cognizance by the learned Judge, the grounds urged cannot be taken into consideration. These contentions and grounds raised can as well be taken at the stage of Section 239 Cr.P.C at which stage, the Magistrate considers the charge against the accused with reference to facts whether there is material or it is groundless. If the Magistrate or Judge feels that the allegations made against the revision petitioners are groundless, he can be discharged, after recording reasons for doing so. In fact the Magistrate has a duty to consider the entire material on record placed before the Court at the time of framing charges under Section 239 Cr.P.C. If there is no legal evidence or the facts do not make out any offence, the Court can discharge the accused at that stage. This exercise has to be done by the learned Judge only at the time of framing of charges but not at the time of taking cognizance. It is too premature to decide the grounds raised by the petitioner at the time of taking cognizance. So on a over all consideration of the arguments and counter arguments and also as to the decisions referred to by both sides, I feel that it is premature to decide the points raised on behalf of both sides at this stage and the petitioner can raise all these grounds at the time of framing charges because if any findings or observations are made at this stage, it will cause prejudice to both parties and may embarrass the trial Court at the time of framing charges.
15. Both sides argued at length on the above referred points with reference to some rulings of the Hon’ble Supreme Court and our High Court. The following decisions are relied on both sides on the aspects touching institution of case, requirement of sanction for prosecution, competent authority to grant sanction, good faith and discharge of official duties etc:-
“Anil Kumar v M.K Aiyappa
[5]
, Om Prakash and others v. State of Jharkhand through the Secretary, Department of Home,
[6]
Ranchi 1 and another , General Officer Commanding Rashtriya Rifles v. Additional Director General, Army Headquarters
[7]
, T.
Gopala Rao v. State of Andhra Pradesh
[8]
, State of Madhya Pradesh v. Sheetla Sahai and others
[9]
, Goondla Venkateswarlu v. State of
[10]
Andhra Pradesh and another , Matajog Dobey v. H.C. Bhari & Nand Ram Agarwala v.
H.C.Bhari and others
[11]
, Abdul Wahab Ansari
[12]
v. State of Bihar and another , Rakesh Kumar Mishra v. State of Bihar and others
[13]
, Romesh Lal Jain v. Naginder Singh Rana and Others
[14]
, Prakash Singh Badal and
[15]
another , P.K. Pradhan v. The State of Sikkim
[16]
.”
16. As already observed supra, the Court need not undertake an elaborate enquiry at the time of taking cognizance as it is not necessary to pass a reasoned order at that stage. All these decisions may have a bearing at the time of deciding the point whether there is any material to frame a charge or the allegations made against the petitioner are groundless. Therefore, those points cannot be decided at this stage.
17. Since none of the grounds raised in the present revision petition shows about illegality of order under challenge in taking cognizance, I am of the view that the Special Judge has not committed any illegality while taking cognizance of the case and in the absence of illegal, improper or incorrect finding, the revision is liable to be dismissed.
18. For the reasons stated above, the revision is dismissed with an observation that the trial Court shall consider the grounds urged on behalf of revision petitioner at the time of framing of charges without being influenced by any of the observations made in this revision.
19. Accordingly, the Criminal Revision Case is dismissed.
20. As a sequel, miscellaneous petitions if any pending in this Criminal Revision Case shall stand dismissed.
Date:22.01.2014 mrb
JUSTICE S. RAVI KUMAR
[1] [2] [3] [4] [5] [6] [7] [8] [9]
AIR 1971 Supreme Court 2372
(1993) 2 Supreme Court Cases 16
(2008) 2 Supreme Court Cases 492
(1995) 6 Supreme Court Cases 142
2013 (12) SCALE
(2012) 12 Supreme Court Cases 72
(2012) 6 Supreme Court Cases 228
2011 (1) ALD (Crl.) 324 (AP)
(2009) 8 Supreme Court Cases 617
[10]
(2008) 9 Supreme Court Cases 613
[11]
AIR 1956 Supreme Court 44 (1)
[12]
(2000) 8 Supreme Court Cases 500
[13]
(2006) 1 Supreme Court Cases 557
[14]
(2006) 1 Supreme Court Cases 294
[15]
(2007) 1 Supreme Court Cases 1
[16]
Appeal (Crl.) 1118/2000, dated 24/07/2001