TMI Blog1991 (4) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... elivered by KULDIP SINGH, J. The Bihar State cooperative Marketing Union Limited (BISCOMAUN) ( hereinafter called `BISCO') is an apex body operating in the State of Bihar. It is a federation of Cooperative Societies and its primary function is to supply fertiliser to farmers through its depots and godowns numbering about 550, spreadover the State of Bihar. 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 Cooperative, Government of Bihar and Registrar, Cooperative Societies, State of Bihar. G.D. Mishra was working as Advisor to BISCO during 1986-88. He resigned from the said post on August 3, 1988. It may be mentioned that one Tapeshwar Singh was the Chairman of BISCO during the above said period. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rator. 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 Sections 409, 420, 468, 469, 471, 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 persons are the directors of the firm and the fifth one is alleged to have forged the test report given by the Rajendra Agricultural University, Pusa. It would be useful to reproduce the First Information Report (hereinafter called `FIR') hereinafter : "FIRST INFORMATION REPORT" BIHAR STATE COOPERATIVE MARKETING UNION LTD. BISCOMAUN BHAWAN, WEST GANDHI MAIDAN, PATNA-800001 Ref. No. AD/c-70 1.9.1988 The Officer Incharge, Patna Kotwali P.S. BISCOMAUN is an institution in the Cooperation Sector and one of its main business activities is to purchase fertilisers and to sell it through its depots to the farmers of the State. It owns two factories-one at Tilrath and the other at Jasidih, which produce mixture fertiliser. It is marketed in the brand name of "HARABAHAR". In course of checking of the stock of fertilisers lying in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was taken into confidence about this proposal. Even the advice of Finance was not taken. This proposal initiated by Shri G.D. Mishra, Adviser (Rehabilitation) was endorsed by the then Managing Director, Sh. P.P. Sharma, for the approval of the Chairman and the proposal was approved by the Chairman. "No tenders were called for nor any steps were taken to ascertain the competitive prices of similar type of fertiliser. Even the quality of the fertiliser was not tested before issuance of purchase order. All this was done in extreme haste." The proposal was accepted on 20.11.1986, and the adviser (Rehabilitation (through his letter dated 22.11.1986 placed an order for supply of 2500 mts of fertiliser to the firm. One of the conditions of the purchase was that the said fertiliser will contain nutrient value in proportion 15:15:72 and if it was found that the nutrient value is less than the above, the consignment will be rejected. The Chemical examination was to be done either in the laboratory of BISCOMAUN or any other laboratory approved by the State/Central Government. Contrary to this condition, the chemical examination of the fertiliser is said to have been carried out by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adviser (Rehabilitation) Shri G.D. Mishra, with an intention to cause wrongful gain to the supplier and wrongful loss to the Biscomaun as well as to the farmers of the State. As a matter of fact, he allowed sale of spurious sub-standard fertiliser to the farmers of the State from the depots, where from samples were not taken.' There was undue haste in making payment. The said Rajasthan Multi-Fertiliser Pvt. Ltd. was paid Rs.23.02 lacs vide sanction dated 17.12.1986. The payment was released inspite of the fact that it was pointed out in challan No. 206 and 209 by the Depot Manager that the Fertilisers were not in granulated form and the bags were non-standard. A further proposal for payment was put up in December-January, 1986-87. Again it was pointed out by the Accountant that the test report was not received. It was also again pointed out that the supplies were made in unstandard bags. The Adviser (Rehabilitation) Shri G.D.Mishra over- ruled this objection and recommended to the Managing director that not only the said bill of Rs. 13.07 lacs be paid but also two bills of Rs. 12.03 lacs and Rs.5.83 lacs, which had not been examined by the accounts also be paid. This was in january ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s purchased only in December, 1986. Apart from that, as soon as the fertiliser was proved to be substandard by the State Laboratory, Biscomaun should have recovered the amount paid to the company. However, on the said Executive Committee decision, the management of Biscomaun along with old stock fertiliser also started transferring the said Suraj Brand fertiliser to the two factories so that it could be converted into Harabahar and consumed. It is to be noted that out of 2900 mts. 2500 mts. had remained unsold by June, 1987. Stocks proved to be spurious and sub-standard were transferred to the Biscomaun factories at Tilrath and Jasidih for being converted into Harabahar. The said Suraj Brand material from Benipad, Bochaha, Gangaiya(Muzaffarpur) from where samples had been taken and fertiliser proved to be spurious were transferred to the fertiliser factories. It is clear that the entire reprocessing gimmick was a conspiracy to cause unlawful gain to the said Rajasthan Multi-Fertiliser Pvt. Ltd. and unlawful personal gain to the persons involved by consuming spurious fertilizer supplied by them thereby also causing wrongful loss to Biscomanun and the farmers of the State. Not only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings against the accused-petitioners. These appeals are against the judgment of the High Court via Special Leave Petitions. In Criminal Appeal Nos.525-26/90 Shri Girija Nandan Sharma, S.P. CID, Patna, the investigating officer and in Criminal Appeal Nos. 523-24/90 Shri R.K.Singh the informant, are also the appellants along with the State of Bihar. Mr. P.P. Rao and Mr. Kapil Sibal, learned senior advocates appearing for the appellants have contended that the High Court in the exercise of its extra ordinary jurisdiction committed a grave error in taking into consideration the affidavits and documents filed alongwith the writ petitions. The counsel contended that the high Court virtually usurped the jurisdiction of the Magistrate/Special Judge by appreciating the affidavits and documents produced before it and reaching conclusions contrary to the charge-sheets (police reports) submitted by the police. According to the learned counsel two police reports under Section 173 Cr.P.C. had already been filed in the court and in fact after hearing the parties at length, on the question of cognizance, the learned Special Judge had reserved the orders. The counsel contended that the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the record. The finding that no prima facie offence was made out against the respondents was reached by the High Court on the following reasoning. ``We are always conscious of the legal position and the various pronouncements of the courts in India that disputed questions of facts cannot be decided on the basis of affidavits. But when some documents have been brought on the record which are official records, which were in possession of the Biscomaun and so in the possession of the informant himself and further when in the replies neither the informant nor the I.O. nor any officer of the State Government has challenged the correctness of those documentary material so they are at present not disputed and when it appears from the argument and the notes given by the learned counsel for the opposite party and Annexures 1, 2, 9, 10, 12, and 13 have been considered by the I.O. and they formed part of the records of the investigation except annexure-I which was seized during the investigation and formed part of the criminal proceedings. Annexures 3, 4, 5, 6, 7, 11, 15, 16, 17, 18, 19, 20, 21/1, 22, 22/1, 24, 25, 26 and 39 which have been referred to earlier and dealt with, do not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director, Agriculture, Bihar asking his opinion regarding suitability of the fertiliser to be purchased from the firm at Rs.2,550 per M.T. Annexure 15 dated December 19, 1986 is the letter from G.D. Mishra to the firm asking the firm to supply 408 M.T. of fertiliser. Annexure 16 dated May 5, 1987 contains the proceedings of the marketing committee of BISCO held on April 16, 1987 wherein memorandum of sale and purchase of fertiliser for the year 1986-87 was approved. Annexure 17 Dated February 18, 1985 is the letter from R.K. Singh as District Magistrate, Patna to Agriculture production Commissioner, Patna which discloses that R.K. Singh had got samples of Essential Commodities tested from Rajendra Agriculture University. Annexure 18 dated March 23, 1987 is the memorandum prepared by P.P. Sharma for the Board of Directors of BISCO suggesting that the fertiliser purchased from the firm be sent to BISCO factories asraw-material. This was suggested because the fertiliser was not being sold inspite of reduction of price and huge stock and money was blocked. Annexure 19 is the record of the proceedings of the meeting of Board of Directors of BISCO dated March 23, 1987 approving Managing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the BISCO. On the basis of these inferences the High Court came to the conclusion that the criminal proceedings against the respondents were not justified. Mr. Kapil Sibal on the other hand has contended that the material collected during the investigation prima facie show the involvement of the respondents in the commission of the crime. The learned counsel has highlighted the following material on the record to support his contention : 1. The licence of the firm to manufacture fertiliser was cancelled and the firm was not in a position to manufacture fertiliser at the relevant time when the BISCO placed orders with the firm. This assertion is supported by referring to para 48 of the case diary. 2. Letter dated August 19, 1986 alleged to have been written by the firm to BISCO was infact never received by the BISCO. The letter has been marked to Special Officer Fertiliser. Mr. Sibal has taken us through para 15 of the case diary where the Special Officer, Fertiliser has alleged to have stated that he never dealt with the file and he did not know anything about the deal. The contention is that the said letter was introduced into the file to show that the deal was not abrupt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the samples of the fertiliser supplied by the firm sent to the Central Laboratory, show that 8 out of 11 samples were found sub-standard. 8. Mr. Sibal contends that 8 out of 11 samples having been found to be sub-standard the whole of the fertiliser was to be returned to the firm but instead it was decided to reprocess the fertiliser by treating it to be raw material for the manufacture of `hara bahar'. 9. Mr. Sibal contends that 23 lacs were paid to the firm on December 18, 1986 inspite of the objection raised by the accounts department on December 16, 1986. According to him further 30 lacs were paid on january 22, 1987 inspite of the fact that by that date the sample-results from the central laboratory showing the fertiliser to be sub-standard had been received. 10. According to Mr. Sibal material has come during investigation to show that the fertiliser purchased from the firm was being sold in retail market at a much lesser price of Rs.2000 per MT. We do not wish to express any opinion on the rival contentions of the parties based on their respective appreciation of material on the record. We have quoted ``the annexures'', the inferences drawn by the High Court and the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against Ch. Bhajan Lal inspite of the fact the prosecution was lodged at the instance of Dharam Pal who was enimical towards Bhajan Lal. The informant, being in a peculiar position having lodged the accusation, is bound to be looked-down upon by the accused-persons. The allegations of Mala fide therefore against the informant based on the facts after the lodging of the FIR are of no consequence and cannot be the basis for quashing the proceedings. As regards the investigating officer, He has wide powers under the criminal procedure code. He has to perform his duties with the sole object of investgating the allegations and in the course of the investigation he has to take into consideration the relevant material whether against or in favour of the accused. Simply because the investigating officer, while acting bona fide rules out certain documents as irrelevant, it is no ground to assume that the acted mala fide. The police-report submitted by the investing officer has to pass through the judicial scrutiny of a Magistrate at the stage of taking cognisance. Although the accused person has no right to be heard at that stage but in case the accused person has any grouse against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter to Chief Secretary, Bihar after the lodging of FIR R.K.Singh referred to P.P. Sharma as ``gutter rat'' and ``common crockery thief''. Mala fides on the part of investigating officer G.N. Sharma have been found by the High Court on the following facts : 1. The investigating officer deliberately allowed the informant to withhold the relevant files of BISCO for more than a week after lodging the FIR. 2. The investigating officer adopted a threatening posture toward P.P. Sharma from the very beginning. Instead of interrogating him the investigating officer demanded that P.P. Sharma should give his `safai bayan' (defence statement). 3. P.P. Sharma gave the investigating officer a copy of the writ petition along with the annexures. The annexures were relevant documents from the records of State Government and BISCO. The investigating officer refused to take those documents into consideration on the ground that they were irrelevant. the documents could have shown the innocence of the respondents. 4. The investigating officer did not obtain the sanction of the State Government before submitting the police-report. He mentioned in the case diary that no sanction for prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces be sanctioned or forbidden. To comply with the provisions of section 197 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction. Section 197 does not require the sanction to be in any particular form. If the facts constituting the offence charged are not shown on the face of the sanction, it is open to the prosecution, if challenged, to prove before the court that those facts were pa;ced before the sanctioning authority. It should be clear from the form of the sanction that the sanctioning authority considered the relevant material placed before it and after a consideration of all the circumstances of the case it sanctioned the prosecution. In the present case the investigation was complete on the date of sanction and police reports had been filed before the Magistrate. The sanctioning authority has specifically mentioned in the sanction order that the papers and the case diary were taken into consideration before granting the sanction. Case diary is a complete record of the police investigation. It contains total material in support or otherwise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the investigating officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings at that stage in exercise of its inherent jurisdiction. We could have set aside the High Court judgement on this ground alone but elaborate argument having been addressed by the learned counsel for the parties we thought it proper to deal with all the aspects of the case. We, therefore, allow the appeals, set aside the judgement of the High Court and dismiss the writ petitions field by the respondents before the High Court. K.RAMASWAMY, J. Investigation of a crime is not of a routine duty, in particular in intractable terrains of high places committed with dexterity and sophistication. The unfounded threat of mala fides or bias often deter a sincere and dedicated investigator to make in-depth investigation causing catastrophic incursion on the effectivity to connect the offender with crime which would serve the detractor's purpose. The attempt to avail writ remedy on this score is on the ascending scale. The incalculable damage of interference would be on the efficacy of rule of law and maintaining order in the society. This a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tilizers' Inspectors were to have the fertilizers tested in terms of the Fertilizers Control Order, Instead, the agent of the Company had taken the Fertilizers for chemical examination in Rajendra Agricultural University, Bihar. The report said to have been given by Dr. S.N. Jha, Associate Professor of Soil Science of the University, was fabricated by one S.N. Sahoo, Assistant in the department who is one of the accused; payments were made in undue haste and further order to supply of 450 M.Ts. was made by G.D. Mishra. Only 459 M.Ts in total was sold out. When the reports were being received from depots that the fertilizers supplied were substandard and spurious and the bags do not contain the full weight, instead of returning the stock, a resolution was obtained from the Managing Committee to convert unsold old stock as HARBAHAR. When a specific request for conversion of the stock supplied by the Company for conversion as HARBAHAR was turned out by the Managing Committee, yet the resolution was fraudulently used to destroy the evidence of supply of substandard and spurious fertilizers and converted into Harbahar and fabricated the records in furtherance thereof. These in substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt in the Police Station in the manner prescribed by the State Government. The Officer incharge of the police station is prohibited to investigate only into non-cognizable cases without an order of the Magistrate concerned under s. 155(2). But if the facts disclose both cognizable and non-cognizable offence, by operation of sub- s. 4 of s. 155 the case shall be deemed to be congnizable case and the police officer shall be entitled to investigate, without any order of the Magistrate, into non- cognizable offence as well. Section 156 gives statutory power to a competent police officer or a subordinate under his direction to investigate into cognizable offences. In cases of cognizable offences receipt or recording of a first information report is not a condition precedent to set in motion of criminal investigation. Section 157 provides the procedure for investigation. If the police officer incharge of the Police Station, on receipt of information or otherwise, has reason to suspect the commission of a cognizable offence and is empowered to investigate into, he shall proceed in person or shall depute one of his subordinate officers not below the rank of the prescribed officer to the sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through a subordinate Magistrate to make further enquiry or to take cognizance of the offence upon consideration of the material so placed before him and take further steps as aforesaid. Then only proceedings in a criminal case stands commenced. Taking cognizance of the offence is coterminus to the power of the police to investigate in the crime. Until then there is no power to the Magistrate except on a private complaint in a cognizable/non cognizable offence to direct the police to investigate into the offence. The Magistrate is not empowered to interfere with the investigation by the police. In King Emperor v. Khawaja Nazir Ahmad, 71 Indian Appeals, 203 the Judicial Committee of the Privy Council held that ``the function of the judiciary and the police are complementary, not overlapping'' and "the court's functions begin when a charge is preferred before it, and not until then''. In Jamuna Chaudhary v State of Bihar, [1974] 3 SCC 774 this Court held: The Duty of the investigating officer is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction, but to bring out the real unvarnished truth''. The only duty cast on the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the investigation is made out, the Court should be quite loath to interfere at the stage of investigation. A field of activity is reserved for police and the executive. This Court also noted that it is a clear case of usurpation of jurisdiction by the High Court, that vested in the Magistrate to take or not to take cognizance of the case on the material placed before him. The High Court committed grave error by making observations on seriously disputed question of facts taking its clue from affidavit, which in such a situation hardly provides any reliable material. This Court also noted that the interference or direction, virtually amount to a mandamus to close the case before the investigation is complete. In State of West Bengal v.Sampat Lal, [1985] 1SCC 317 at 336 para 26 this court held that the court has residuary power to give appropriate directions to the police when the requirements of law are not being complied with and investigation is not being done properly or with due haste and promptitude. In Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala Ors., [1983] 1SCC 9 this Court found that clear averments have been made regarding the active role played by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plays pivotal role in the dispensation of criminal justice and maintenance of law and order. The police investigation is, therefore, the foundation stone on which the whole edifice of criminal trial rests-as error in its chain of investigation may result in miscarriage of justice and the prosecution entails with acquittal. The duty of the investigating officer, therefore, is to ascertain facts, to extract truth from half-truth or garbled version, connecting the chain of events. Investigation is a tardy and tedious process. Enough power, therefore, has been given to the police officer in the area of investigatory process, granting him or her great latitude to exercise his discretionary power to make a successful investigation. It is by his action that law becomes an actual positive forces. Often crimes are committed in secrecy with dexterity and at high places. The investigating officer may have to obtain information from sources disclosed or undisclosed and there is no set procedure to conduct investigation to connect every step in the chain of prosecution case by collecting the evidence except to the extent expressly prohibited by the Code or the Evidence Act or the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest or private interest. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. The administrative discretion means power of being administratively discreet. It implies authority to do an act or to decide a matter a discretion". The administrative authority is free to act in its descretion if he deems necessary or if he or it is satisfied of the immediacy of official action on his or its part. His responsibility lies only to the superiors and the Government. The power to act in discretion is not power to act adarbitrarium. It is not a despotic power, nor hedged with arbitrariness, nor legal irresponsibility to exercise discretionary power in excess of the statutory ground disregarding the prescribed conditions for ulterior motive. If done it bring the authority concerned in conflict with law. When the power was exercised mala fide it undoubtedly gets vitiated by colourable exercise of power. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done hones ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in particular but to the department he belongs to, in general, Enquiry Officer must not act in any pre- conceived idea of guilt of the persons whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting the measures which are doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. The aim of Code is to secure a conviction if he can do by use of utmost fairness on the part of the Officer investigating into the crime before lodging a chargesheet. The reason is that no one should be put to unnecessary harassment on a trial unless there are good and substantial reasons for holding it. On the facts in that case the Court found that before lodging the First Information Report the Investigating Officer suborn the witnesses and obtained statements under s. 162 under their signature and also induced the witnesses of self-incriminating from prosecution. That conduct on the part of the Investigating Officer was found to be unfair. In this case no such allegation has ever been made against the Investigating Officer or the Adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer nor found in this regard by the High Court. The ground on which reliance was placed and found acceptable to the High Court is that when the documents said to be favourable to the respondents were brought to his notice, he did not investigate into those facts on the ground of being "irrelevant". Free from bias is an integral part of the principles of natural justice. When bias was imputed to be existed, he ought not to take part in a decision making process. Police Officer has a statutory duty to investigate into the crime suspected to have been committed by the accused, by collecting necessary evidence to connect the accused with the crime. Investigator exercises no judicial or quasi-judicial duty except the statutory function of a ministerial nature to collect the evidence. With his expertise, skill or knowledge he has to find whether the accused committed the offence alleged against. If the accused is aware that the Investigating Officer was personally biased against him, it is his primary duty to bring it to the notice of the higher authorities or the court at the earliest, of the circumstances or on the grounds on which he believed that the Investigating Officer is actuat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be inferred to be a mala fide act. It may be a bona fide opinion. Undoubtedly, this court held that mala fides on the part of the complainant would be a factor to be gone into. But no decided case that a charge-sheet was held to be vitiated by mala fides due to omission to exercise statutory power was brought to our notice. The allegation of mala fide and bias more often made easily, than proved. (Investigation is a delicate pains taking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. Ethics can be defined as the practical normative study of the rightness and wrongness of human conduct.) The police investigator faces the most frequent and immediate ethical pressures. Despite many a stress associated with the enforcement and investigation functions, the investigator must adapt a professional and uncom-promising attitude. Rather than succumbing to unethical logic and engaging in unprofessional means to justify a seemingly desirable end, the investigator should realise that no conviction is worth sacrificing one's personal and professional integrity. The allegation of mala fides cause deep incursion on the psychic attitude to uncover t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. Therein despite the attempt by the respondent to prove by affidavit evidence corroborated by documents of the mala fides and even on facts as alleged no offence was committed, this court declined to go into those allegations and relegated the dispute for investigation. Unhesistingly I hold that the findings of the High Court that F.I.R. gets vitiated by the mala fides of the Administrator and the chargesheets are the results of the mala fides of the informant or investigator, to say the least, is fantastic and obvious gross error of law. The contention of Sri R.K. Jain, the learned Sr. Counsel is that when the evidence collected during the investigation was not unimpeachable, the prosecution and continunance of the proceedings are only a step in the process of harassment to the respondents, offending their right to life and livelihood enshrined under Art. 21 of the Constitution. The question is whether, the impugned actions would offend Article 21 of the Constitution. Article 21 assures every person right to life and personal liberty. The word personal liberty is of the widest amplitude covering variety of rights which goes to constitute personal liberty of a citizen. Its depr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he previous sanction- (a) in the case of of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. Other sub-sections are not relevant. Hence omitted. Similarlys. 15-A of the Essential Commodities Act reads thus: "Prosecution of public servants.-Where any person who is a public servant is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his duty in pursuance of an order made under s.3, no court shall take cognizance of such offence except with the previous sanction: (a) of the Central Government, in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union; (b) of the State Government in the matter of a person who is employed or, as the case may be, was at the time of commission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public servant that requires sanction for prosecution, nor even every act done by him while he actually engaged or purported to have engaged under colour of his official duty that receives protection from prosecution. If questioned he must claim that he had done by virtue of office and it is inextricably connected with the duty. Sanction then would be necessary, irrespective of whether it was in fact a proper discharge of his duty or not is a matter of defence on merits, which would be considered at the trial and could not arise at the time of grant of sanction which must precede taking cognizance of the prosecution. Therefore, there must be reasonable connection between the acts complained and discharge or purported discharge of the official duty, the act or omission must bear such a relation to the duty that the accused could lay reasonable, nexus between the offending act or omission and the duty but not a pretended or fanciful claim that he did it in the course of the performance of his duty. It is no part of the duty of a public servant to enter into conspiracy; to fabricate the records; falsification of the accounts; fraud or misappropriation or demand and acceptance of illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettled law that issuance of the process to the accused to appear before the court is sine quo non of taking cognizance of the offence. The emphasis of s.197(1) or other similar provisions that "no court shall take cognizance of such offence except with the previous sanction" posits that before taking cognizance of the offence alleged, there must be before the court the prior sanction given by the competent authority. Therefore, at any time before taking cognizance of the offence it is open to the competent authority to grant sanction and the prosecution is entitled to produce the order of sanction. Filing of charge-sheet before the court without sanction per se is not illegal, nor a condition precedent. A perusal of the sanction order clearly indicates that the Govt. appears to have applied its mind to the facts placed before it and considered them and then granted sanction. No evidence has been placed before us to come to a different conclusion. Accordingly we hold that the High Court committed manifest error of law to quash the charge-sheet on those grounds. The another crucial question is whether the High Court, in exercise of its extra-ordinary jurisdiction under Art.226 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keep the hands back and relegate the accused to pursue the remedy under the Code. In several cases this Court quashed the criminal proceeding on the sole ground of delay. In a case, F.I.R. filed in 1954 for violation of the provisions of the Customs Act and Foreign Exchange Regulation Act was challenged in the Allahabad High Court. It was deliberately kept pending in the High Court and in this Court till 1990. The accusation was violation of law by named persons in the name of non-existing firm. The F.I.R. was quashed in the year 1990 by another Bench to which I was a Member solely on the ground of delay. He achieved his object of avoiding punishment. This would show that an accused with a view to delay the trial, resorts to writ proceedings, raises several contentions including one on merit as vehemently persisted by Sri Jain to consider this case on merits and have the proceedings kept pending. The result would be that the people would loss faith in the efficacy of rule of law. Documents relied on by the respondents are subject to proof at the trail and relevancy. If proved to be true and relevant that they may serve as a defence for the respondents at the trial. The State quite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage." Therefore, the ratio therein is of no assistance to the facts in this case. It cannot be considered that this court laid down as a preposition of law that in every case the court would examine at the preliminary stage whether there would be ultimate chances of conviction on the basis of allegation and exercise of the power under s.482 or Art. 226 to quash the proceedings or the charge-sheet. In Sirajiddin's case the Madras High Court and this Court, though noticed serious infirmity committed in the course of investigation by the investigating officer did not quash the charge-sheet. I am contrained to hold that the learned Judges have committed gravest errors of law in quashing the F.I.R. and Charge-sheets. Since the proceedings are yet to start I decline to go into the merits of the respective contentions, though vehemently argued by Shri R.K. Jain, on merits, and Kapil Sibal in rebuttal since expressing any view either way would gravely prejudice the case of the accused or the prosecution. The appeals are ..... 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