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2019 Supreme(J&K) 234
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjeev Kumar, J.
B.G. Mandanaik and Anr. – Appellant
Versus
CBI Jammu and Ors. – Respondents
Case No. OWP No.540/2014 and IA No.703/2014
Decided on 19.7.2019
For the Petitioner(s):Mr. K.S.Johal, Sr. Advocate with Mr. Supreet Singh Johal, Advocate
For the Respondent No.1:Ms. Monika Kohli, Advocate
For the Respondent No.5:Mr. Ankesh Chandel, Advocate
For the Respondent(s):None for other respondents
Headnote:
Criminal Procedure Code, 1973 – Sections 156, 173 and 190 – Magistrate, which receives a closure report from Investigating Officer is not bound to accept it and may decide to take cognizance of offence and issue process – In that event, neither Informant nor person accused of committing offence is prejudicially affected – Neither under express provisions of Sections 156, 173 or Section 190 of Code or any other provision of Code nor under any judgment of Supreme Court right is vested in accused to be heard before Magistrate declines to accept closure report and instead proceeds to take cognizance or direct further investigation in terms of Section 156(3) of Code – It is only where Magistrate decides to accept closure report and drop proceedings, right of prior hearing in favour of Informant has been recognized through judicial precedents – Right of hearing given to accused under Sub Section (2) of Section 439 of Code is only when High Court intends to pass an order in Revision Petition to prejudice of accused – This right of hearing given to accused is statutory in nature – No right of hearing is vested in accused or person who is suspected to have committed crime till Court takes cognizance and issues process against accused.(Paras 17, 19 and 20)
JUDGEMENT :
Sanjeev Kumar, J.—The petitioners invoke the extra ordinary jurisdiction of this Court vested under Article 226 of the Constitution of India read with Section 103 of the Constitution of State of Jammu and Kashmir for issuing, inter alia following writs:—
(i) Certiorari quashing FIR No. RC0042012A0003 of 2012 dated 23.02.2012 registered with the CBI, ACB, Jammu for alleged commission of offence under Sections 120-B of the RPC read with Section 5(2) and 5(1)(e) of the J&K Prevention of Corruption Act, 2006 (for short ‘the Act of 2006’);
(ii) Certiorari for quashing order dated 26.09.2013 passed by the learned Special Judge (CBI Cases), J&K, Jammu (hereinafter referred to as the ‘trial Court’) whereby the closure report submitted by the CBI, Jammu in the FIR has not been accepted and a direction has been issued to the CBI to obtain sanction for the prosecution against both the petitioners and then produce the final report in terms of the Section 173 of Cr.PC in proper procedure;
(iii) Certiorari for quashing sanction order No.CEO/BG-1/CBI-B/01-2013 BS dated 13.12.2013 issued by the respondent No.5; and
(iv) Certiorari for quashing final report/charge sheet submitted by the CBI ACB under Section 173 of the Code of Criminal Procedure before the trial Court.
2.Briefly stated the facts leading to the filing of the petition are;An FIR against the petitioners came to be registered with the CBI, ACB on the basis of source information that the petitioner No.1, the then Deputy Chief Engineer, Konkan Railway Corporation Limited (‘KRCL’ for short) Sangaldhan, Reasi, J&K in conspiracy with his wife, the petitioner No.2, amassed assets and made investments disproportionate to their known source of income by abusing the official position by the petitioner No.1 while he was working with KRCL at Sangaldhan, Reasi, J&K and other places during the period from January, 2001 to May, 2011. It was alleged that Rs.10.00 lakh in cash was found concealed in the self-stitched pockets of petticoat of the petitioner No.2. This was stated to have been found in the possession of the petitioner No.2 during her frisking at JammuAirport while she was boarding flight for Delhi-Bangalore along with petitioner No.1. The aforesaid amount was allegedly seized by the Income Tax Authorities at Bangalore. It has further come out that out of the said seized amount of Rs.10.00 lakh, Rs.1,00,000 was returned to the petitioner No.2 while as the rest was seized as the petitioners could not explain the possession of such amount to the satisfaction of the Income Tax Authorities.
3. That after the registration of the FIR, the matter was investigated by the CBI, which submitted the closure report before the trial Court. The closure report appears to have been submitted by the CBI on the ground that during investigation they did not find it a fit case for launching criminal prosecution against the petitioners as they could not find the evidence to conclude that the assets and investments made by the petitioners were disproportionate to their known source of income. The trial Court, however, did not accept the closure report and came to the conclusion that on the basis of the facts and evidence collected by the Investigating Officer during investigation, it was prima-facie demonstrable that the petitioners had committed offence under Section 120-B RPC read with Section 5(2), 5(1) (e) of the Jammu and Kashmir Prevention of Corruption Act, 2006. The trial Court, however, could not take the cognizance for the reason that the CBI had not obtained previous sanction from the competent authority in terms of the Section 6 of the Jammu and Kashmir Prevention of Corruption Act, 2006. The trial Court, accordingly, retained the closure report and directed the CBI to obtain necessary sanction against the petitioners and file final report under section 173 of the J&K Cr.PC in the shape of the charge sheet/police challan in a proper format with all relied upon oral and documentary evidence
