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SUPREME COURT OF INDIA
KULDIP SINGH AND K. RAMASWAMY, JJ.
State of Bihar and another etc. etc. Appellants
Versus
Shri P.P. Sharma and another etc. etc., Respondents.
Criminal Appeals Nos. 527-28 of 1990
Decided on 2-4-1991.
Code of Cri. Procedure 1973, Sec. 172, 173 & 482-the police report-has to pass through judicial scrutiny of a Magistrate at the stage of taking cognizance and it is not open to High Court to find fault with the same on the grounds that certain documents were not taken into consideration-the entries in case diary are not evidence nor can they be used by the accused or the Court unless the case comes u/s 172 (3)-The Code demarcates the field of investigation exclusively to the executive to be vigilant over law and order an error in its chain of investigation may result in miscarriage of justice-(Paras 23, 42 & 48)
Code of Cri. P. Sec. 197-(Per Kuldip Singh, J.)-grant of sanction u/s 197 and u/s 15A of the E.C. Act challenged on the ground of non-application of mind-sanction u/s 197 is not an empty formality-to comply with the provisions it must be proved that sanction was given in respect of the facts constituting offence-no particular form is required – sanctioning authority having taken case diary into consideration before grant of sanction it can not said that there was non-application of mind. (Paras 26, 27 & 28)
(Per K. Ramaswamy, J.)-Object behind prior sanction is to prevent malicious, vexations and unnecessary harassment to a public servant-it is not every offence committed by a public servant that requires sanction-there must be reasonable connections between 'he acts complained and discharge or purported discharge of official duty-the order of sanction is an administrative act and no quasi-Judicial nor a lis is involved - filing of the charge sheet before the Court, without sanction per se is not illegal nor a condition precedent-1960 (2) SCR 89, 1972 (3) SCC 89 & 1980 (1) SCR 111 ref. (Paras 64, 66 & 68)
Constitution of India, Art 21, 226, 227 and Sec. 482 Cri. P.C. (Per Kuldip Singh, J.)-quashing of cognizance-reliance placed on documents annexed as annexure and affidavits-High Court fell into grave error and acted with patent illegality in quashing the criminal proceedings by treating the annexures and affidavits as evidence and by converting itself into a trial Court-High Court acted with patent illegality in quashing the FIR and prosecution against the respondents by assuming extra ordinary Jurisdiction under Art.226 & 227 at a stage when the Special Judge was seized with the matter of (Per K. Ramaswamy, J.) - undoubtedly, the arms of the High Court are long enough, when exercises its prerogative discretionary power under Art. 226 but it is hedged with self imposed limitation-in an appropriate case an aggrieved person can always seek remedy by in voking the power of High Court under Art 226-unless extra-ordinary cases of gross abuse of power by those in charge of investigation is made out, the Court should be quite loath to interfere at the stage of investigation-Art 21 assures every person high, to life and personal liberty-the investigator must be alive to mandate of Art 21 and is not empowered to tramle upon personal liberty arbitrarily-the finding of the High Court the FIR charge sheet is violative of constitutional mandate under Art 21 is without substance - entertaining the writ petitions against charge - sheet and considering the matter on merit on the guise of Prima facie evidence to stand in accused for trial amounts to pretrial of a Criminal trial under Articles 226 or 227 even before the competent Magistrate or the Sessions Court takes cognizance of offence - the commission of offence can not be decided on affidavit evidence-"In annihilating the still born prosecution" by going Into merits on plea of prima facie case and "diverted to those facts and gave findings on merits, grossest error of law has been committed by High Court in making pre-trial of a criminal case in exercising its extraordinary Jurisdiction under Art 226-(1960) 3 SCR 388, (1970) 3 SCR 946, 1980 (1) SCC 554 rel. on, 1985 (1) SCC 317, 1983 (1) SCC 9 (Paras 13, 16, 20, 38, 43 & 69)
(For Kuldip Singh, J.)
Malafide-Allegations of malafide on the art of the informant and investigating officer - No material on record to show enmity prior to the lodging of FIR-the question of malafide exercise of power assumes significance only when criminal prosecution is initiated on extraneous considerations and for an unauthorised purpose-the dominant purpose against the respondents was to have an investigation done into the allegations contained in FIR and not character assination or to harass or humiliate them-allegations of malafide based on facts after lodging of the F.I.R. is of no consequence-High Court was not justified-suffice to say no reasonable person on the basis of facts can come to the conclusion as draw by the High Court-1990 (2) SCR 16 and T.T. 1990 (4) S.C. 650 ret. on. (Paras 21, 22, 23 & 25)
(Per K. Ramaswami, J.-Malafide means want of good faith, personal bias-determination of a pleas of malafide involves two questions, (1) personal bias or an oblique motive, (ii) administrative action in contrary to the objects-it must be proved and mere bald statement is not sufficient-findings of the High Court that FIR gets vitiated by the malafides is fantastic and obvious gross error of law. (Paras 51, 52, 56, 57 & 60)
Key Points: - High Court should not quash FIR or proceedings at pre-c cognizance stage when police report is under judicial scrutiny; to respect investigative process (!) . - The judiciary’s role is to review through proper trial, not to substitute merits; appreciation of evidence is for criminal courts; annexures/documents not part of police report cannot be used to pre-emptively quash (!) (!) (!) . - Sanction under section 197 Cr.P.C.
JUDGMENT
KULDIP SINGH, J.:— The Bihar State Co-operative Marketing Union Limited (BISCOMAUN) (hereinafter calledBISCO) is an apex body operating in the State of Bihar. It is a federation of Co-operative Societies and its primary-function is to supply fertiliser to farmers through its depots and godowns numbering about 550, spread-over the State of Bihar.
2. Shri P. P. Sharma, IAS took over as Managing Director of BISCO on May 26, 1986 and continued to hold the said office till June 14, 1987. From December, 31, 1986 to June 14, 1987 he was also Secretary, Department of Co-operative, Government of Bihar and Registrar, Co-operative Societies, State of Bihar. G. D. Mishra was working as Advisor to BIS.CO during 1986-88. He resigned from the said post on August, 1988. It may be mentioned that one Tapeshwar Singh was the Chairman of BISCO during the above said period.
3. M/s. Rajasthan Multi Fertiliser Pvt. Ltd., Udaipur, Rajasthan (hereinafter called the firm) was holding a Certificate of Registration issued on August 8, 1985 by the Director of Agriculture, Bihar. It is alleged that a letter dated August 19, 1986 was addressed by the firm to the Managing Director of BISCO offering to supply fertiliser of specified grade and quality at Rs. 2,550/- per MT plus local taxes. It may be mentioned that the State of Bihar had issued a notification dated July 14, 1984 fixing the prices for different grades of fertilisers. The price of thd grade offered by the firm was fixed at Rs. 2,559/- per MT under the said notification. The firm sent another letter on October 5, 1986 repeating its offer contained in its. earlier letter. The offer of the firm was accepted and G. D. Mishra, on November 22, 1986, placed an order with the firm for the supply of 2,500 MT of fertiliser (NPK 15 : 15 : 71/2) at Rs. 2509.50 per MT. Thereafter G. D.Mishra placed further order with the firm on December, 19, 1986 for additional supply of 408 MT of fertiliser on the same terms. The firm supplied 2916 MT of fertiliser to BISCO. The total price to be paid to the firm was Rs.73,16,244/-. Rs.23.02 lac was paid on December 18, 1986. Thereafter Rs. 30.96 lac was paid on January 22, 1987. Thus a total sum of about Rs. 54/ - lac was paid to the firm. The samples of the fertiliser supplied by the firm were got tested by BISCO from Rajendra Agriculture University, Pusa which were found to be standard.
4. It is the admitted case of the parties that the fertiliser supplied by the firm could not be sold to the farmers and huge stock kept on lying in the godowns of BISCO for long time. The BISCO was manufacturing "Harabahar" brand of fertiliser at its two factories. It was ultimately decided by the BISCO that the fertiliser which was supplied by the firm and which was lying in the godowns unsold be used as raw material for the manufacture of "Harabahar" fertiliser. The fertiliser was thereafter shifted from various godowns of BISCO to its two factories for conversion into "Harabahar".
5. The reports received from the State Laboratory, Mithapur showed the fertiliser supplied by the firm to be substandard. Majority of the samples sent to the laboratory for testing were found to be substandard. It is alleged that G. D. Mishra on behalf of BISCO wrote a letter dated October 13, 1987 to the firm requesting to take back the sub-standard fertiliser from eight depots mentioned in the said letter.
6. Shri R. K. Singh, IAS took over the charge as the Managing Director of BISCO on December 29, 1988. The management of BISCO was superseded by an order of the State Government dated July 30, 1988 and R. K. Singh was appointed as an Administrator.
7. On September 1, 1988 R. K. Singh sent a written report to the Station House Officer, Police Station, Gandhi Maidan, Patna on the basis of which a case under Ss. 409, 420, 468, 469, 4711 120B, I.P.C. and 7 of the Essential Commodities Act was registered against eight persons including Tapeshwar Singh, P.P. Sharma and G. D. Mishra. Four other accused person
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