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2017 Supreme(Raj) 1014
IN THE HIGH COURT OF RAJASTHAN
Pushpendra Singh Bhati, J.
Bhanwar Lal Soni s/o Shri Chanan Mal Soni - Petitioner
Versus
State of Rajasthan through the Public Prosecutor and Anr. - Respondents
S.B. Criminal Misc. Petition Nos. 585, 591 of 2015 & 3050 of 2014
Decided On : 20-04-2017
Advocate Appeared:
For the Petitioner: Mr. Sanjay Nahar, Mr. C.S. Kotwani
For the Respondents: Mr. M.S. Panwar P.P., Mr. H.S. Sidhu
The magistrate's order directing a preliminary inquiry under Section 156(3) Cr.P.C. did not amount to taking cognizance of the offence, and the magistrate was not required to obtain sanction from the government before ordering the preliminary inquiry.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 156(3) - SECTION 190 - SECTION 202 - PREVENTION OF CORRUPTION ACT, 1988 - SECTION 13(1)(D) - SECTION 13(2) - SECTION 19 - QUASHING OF FIR - PRELIMINARY INQUIRY - TAKING COGNIZANCE OF OFFENCE - MAGISTRATE'S DISCRETION - SANCTION FOR PROSECUTION - INTERPRETATION OF STATUTORY PROVISIONS - JUDICIAL PRECEDENTS.
Fact of the Case:
The petitioners, accused in three separate FIRs registered under the Prevention of Corruption Act, 1988, filed criminal miscellaneous petitions under Section 482 Cr.P.C. seeking to quash the FIRs on the ground that the magistrate had no authority to order an investigation under Section 156(3) Cr.P.C. without first obtaining sanction from the government, as required under Section 19 of the Prevention of Corruption Act.
Finding of the Court:
The court held that the magistrate's order directing a preliminary inquiry under Section 156(3) Cr.P.C. did not amount to taking cognizance of the offence, as the magistrate had not applied his mind to the complaint for the purpose of proceeding under Chapter XV of the Cr.P.C. The court further held that the magistrate was not required to obtain sanction from the government before ordering the preliminary inquiry, as Section 19 of the Prevention of Corruption Act only barred the court from taking cognizance of the offence without sanction.
Issues: 1. Whether the magistrate's order directing a preliminary inquiry under Section 156(3) Cr.P.C. amounted to taking cognizance of the offence? 2. Whether the magistrate was required to obtain sanction from the government before ordering the preliminary inquiry?
Ratio Decidendi: 1. The court relied on the Supreme Court's judgment in Devarapalli Lakshminarayana Reddy & Ors. v. Narayana Reddy & Ors., AIR 1976 SC 1672, which held that taking cognizance of an offence occurs when the magistrate applies his mind for the purpose of proceeding under Chapter XV of the Cr.P.C., which includes examining the complainant and witnesses on oath. The court held that the magistrate's order in the present case did not meet this threshold, as the magistrate had not applied his mind to the complaint for the purpose of proceeding under Chapter XV. 2. The court relied on Section 19 of the Prevention of Corruption Act, which states that no court shall take cognizance of an offence under certain sections of the Act without the previous sanction of the government. The court held that this provision only barred the court from taking cognizance of the offence, and did not apply to the magistrate's order directing a preliminary inquiry under Section 156(3) Cr.P.C., which was not an actual application of mind.
Final Decision: The court dismissed the petitioners' criminal miscellaneous petitions, holding that the magistrate's order directing a preliminary inquiry did not amount to taking cognizance of the offence and that the magistrate was not required to obtain sanction from the government before ordering the preliminary inquiry.
Pushpendra Singh Bhati, J.
These criminal misc. petitions under Section 482 Cr.P.C. have been preferred for quashing FIR Nos.498/2011 and 427/2011 registered at Police Station, Anti Corruption Bureau, Jaipur Chowki at Sri Ganganagar for the offences under Sections 13(1)(D) and 13(2) of the Prevention of Corruption Act, 1988 read with Section 120B IPC as also FIR No.539/2012 registered at Police Station, Main Investigation Office, Anti Corruption Bureau, Jaipur, Chawki at Sri Ganganagar for the offences under Sections 13(1)(D) and 13(2) of the Prevention of Corruption Act, 1988 read with Sections 420 and 120B IPC against the petitioner at the instance of the private complaint.
2. Learned counsel for the petitioners have relied upon a judgment of the Hon'ble Supreme Court rendered in L. Narayana Swamy v. State of Karnataka & Ors., (2016) 9 SCC 598 (Para 12), wherein the judgment delivered in Anil Kumar & Ors. v. M.K. Aiyappa & Anr., 2013 (4) RLW 3604 (SC) has been followed.
3. Learned counsel for the respondents have placed reliance on the judgments rendered by the Hon'ble Supreme Court in Devarapalli Lakshminarayana Reddy & Ors. v. Narayana Reddy & Ors., AIR 1976 SC 1672 (Para 14 to 20) and Gopal Das Sindhi & Ors. v. State of Assam & Anr., AIR 1961 SC 986 (V 48 C 158).
4. I have heard the learned counsel for the parties and have also perused the material available on record as well as the precedent laws cited at the Bar.
5. Paras 11 & 12 of the judgment in L. Narayana Swamy (supra) are as follows :-
"11. Since requirement of obtaining sanction is contained in Section 19(1) of the PC Act, it would be proper to reproduce the same. For our purposes, reproduction of sub-Section (1) of Section 19 of the PC Act shall suffice which we reproduce herein below :
"19. Previous sanction necessary for prosecution.- (1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 -
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from the offence save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office."
12. As is clear from the plain language of the said section, the court is precluded from taking "cognizance" of an offence under certain sections mentioned in this provision if the prosecution is against the public servant, unless previous sanction of the Government (Central or State, as the case may be) has been obtained. What is relevant for our purposes is that this section bars taking of cognizance of an offence. The question is whether it will cover within its sweep, order directing investigation under Section 156(3) Cr.P.C. ? The High Court has taken the view, in the impugned judgment, that bar is from taking cognizance which would not apply at the stage of investigation by the investigating officer. It is observed that sanction is required only after investigation and that too when, after investigation, it is found that there is substantial truth in the investigation report as to what amounts to cognizance of offence."
6. Paras 14 to 20 of the aforesaid judgment in Devarapalli Lakshminarayana Reddy & Ors. are as follows:-
"14. This raises the incidental question: What is meant by "taking cognizance of an offence" by the Magistrate within the contemplation of Section 190 ? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can
