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2021 Supreme(Guj) 3

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
Dhanrajbhai Hirabhai Patel – Appellant
Versus
State of Gujarat – Respondent
Criminal Revision Application No. 624 of 2020
Decided On : 13-01-2021

Advocates:
Advocate Appeared:
For the Appellants : Mr. Aftabhusen Ansari, Mr. Alak A. Pandya.
For the Respondent: Mr. Pranav Trivedi.

Point of Law: The sanction contemplated in Section 197 of the Code concerns a public servant who 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, whereas the offences contemplated in the P.C. Act are those which cannot be treated as acts either directly or even purportedly done in the discharge of his official duties. Parliament must have desired to maintain the distinction and hence the wording in the corresponding provision in the former P.C. Act was materially imported in the new P.C. Act, 1988 without any change in spite of the change made in Section 197 of the Code

Headnote:
Code of Criminal Procedure, 1973 - Section 397 read with Section 401 - Prevention of Corruption Act, 1988- Section 7 -Indian Penal Code,1860 - Section 409 complaint before the Special (ACB) Judge came to be rejected on the ground of maintainability in absence of sanction -Respondent no. 3 against whom the complaint has been made was the Sarpanch of Gola Gram Panchayat. He would fall under the consideration of ‘public servant’ under Section 2(c) of the P.C. Act. The Special (ACB) Judge, Banaskantha at Palanpur while dismissing the complaint on the ground of maintainability for want of valid sanction, raised question for consideration whether a private complaint is maintainable under the provisions of P.C. Act, without valid sanction along with the complaint
Finding of the Court: upon sanction application by a private citizen, who has to be informed of the decision on sanction application to enable him to avail appropriate remedy. However, thus, it becomes crystal clear that as soon as complaint is lodged, if the Magistrate goes through the contents of the complaint in order to proceed and refer the matter to the police for investigation under Section 156(3) of the Cr.P.C. or to take any other step as contemplated under Section 200 of Cr.P.C. it is deemed that he has taken cognizance of the contents of the complaint and came to the conclusion that it is a fit case either to refer it to the police for investigation or to be inquired into by the Court itself. Thus, even for the purpose of lodging a private complaint, order of sanction is an absolute legal requirement to prosecute under Section 19(1) of the P.C. Act. It is rightly held by the Special (A.C.B.) Judge, Palanpur that a trial without a sanction renders the proceedings ab-initio void. There is no irregularity or infirmity in the order by the Special (A.C.B.) Judge.
Result: Revisions dismissed

JUDGMENT :

GITA GOPI, J.

1. The revisionists, under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) have come with a prayer to quash and set aside the order dated 21.08.2020, passed by the Sixth Additional Sessions and Special (ACB) Judge, Banaskantha at Palanpur in Criminal Inquiry (ACB) No. 1/2020. The complaint was filed under Section 409 of Indian Penal Code (for short “IPC”) read with Section 7 of The Prevention of Corruption Act, 1988 (for short “P.C. Act”) against the respondent no. 3, who was on the post of Sarpanch, Gola Gram Panchayat, Taluka-Palanpur. The complaint before the Special (ACB) Judge came to be rejected on the ground of maintainability in absence of sanction.

2. A private complaint filed before the Principal District Judge, Banskantha at Palanpur having been registered as Criminal Inquiry (ACB) No. 1/2020 was transferred to Fifth Additional District Judge Banaskantha for disposal in accordance with law and thereafter the matter came before the Sixth Additional Sessions and Special (ACB) Judge, Banaskantha at Palanpur on 10.07.2020, with the allegations that respondent no. 3 being Sarpanch of Gola Gram Panchayat has misappropriated the public money and committed fraud with Government by arbitrarily allotting the work of installation of LED lights to one Adarsh Sales without any advertisement in newspaper. The LED lights, as alleged, available at Rs. 1200/- to Rs. 1500/- in the market were purchased at the rate of Rs. 4500/- from Adarsh Sales, who had issued a bill without VAT number. It is alleged that the price were called from three firms and by taking undue advantage of the status respondent no. 3 abused his office for corrupt motives, misused the public funds for purchase of LED lights from Adarsh Sales.

2.1 The Special (ACB) Judge noted that the complainant had moved the Additional Assistant Engineer, Taluka Panchayat Palanpur and further the complaint was also given to P.I. A.C.B. Police Station, Banaskantha and an application was also forwarded to T.D.O. Palanpur on 30.08.2017. The same issue was also agitated before the Director of A.C.B. at Shahibag, Ahmedabad vide letter dated 21.05.2018.

2.2 The complainant did not find any progress, hence filed Special Criminal Application No. 1419 of 2020 before this Court and on 22.01.2020, complainant was directed by this Court to approach the concerned authority. Thereafter, the application was given to A.C.B. Police Station, Banaskantha at Palanpur on 07.03.2020. It is stated by the revisionist that the respondent State and its agencies have not registered the FIR nor investigated the complaint hence, the applicant had to prefer Writ Petition before this Court being Special Criminal Application No. 501 of 2020 for direction to the authorities to file an FIR to the mentioned incident. By an order dated 23.01.2020, this Court had not entertained the petition; however liberty was granted to the petitioner to approach the competent authority/Court, if they so desired.

2.3 Thus, the revisionists approached the Court by filing the written complaint which was registered as Criminal Inquiry (A.C.B) No. 1/2020. The Special (ACB) Judge by order dated 21.08.2020, having observed that the complaint dated 20.03.2018 was already before the P.I. A.C.B. Police Station, Banskantha, stayed the proceedings under Section 210 of the Cr.P.C. calling for the report of the concerned A.C.B. Police Station. The said report was received by the Special (ACB) Judge on 13.07.2020 along with the papers and statements recorded during the investigation.

2.4 The Special (ACB) Judge perusing the report stated it to be cryptic and ambiguous, that the report does not clearly specify whether the criminal offence, as alleged by the complainant, were made out or not against the accused? The Special (ACB) Judge further observed that the crux of the whole report of the I.O. submitted to the Director of A.C.B. was to carry out departmental inquiry against the

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2021 Supreme(Guj) 3

IN THE HIGH COURT OF GUJARAT AT AHMEDABADGITA GOPI, J.Dhanrajbhai Hirabhai Patel – AppellantVersusState of Gujarat – RespondentCriminal Revision Application No. 624 of 2020Decided On : 13-01-2021

Cases Referred (9)

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
Dhanrajbhai Hirabhai Patel – Appellant
Versus
State of Gujarat – Respondent
Criminal Revision Application No. 624 of 2020
Decided On : 13-01-2021