9911796707
TMI Blog1991 (4) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... od. 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.2550 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 the grade offered by the firm was fixed at Rs. 2559 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 supply of 2500 MT of fertiliser (NPK 15:15:72) 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.23.03 lac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the various godowns of BISCOMAUN and position of raw materials in the factories, `it was detected that huge quantity of unsold `Suraj Brand N.P.K.' mixture fertiliser was lying in the depots of BISCOMAUN which was being sent to the fertiliser factories of BISCOMAUN to be used as raw-material in the manufacture of `HARABAHAR ' (mixture fertiliser). On perusal of the relevant files, it transpired that `Suraj Brand N.P.K.' was purchased from a private firm namely M/s Rajasthan Multi Fertiliser Pvt. Ltd., Udaipur (Rajasthan). It is also evident from the relevant records that the entire transaction for the purchase of the `Suraj Brand N.P.K.' from the said firm and its utilisation in the manufacture of HARABAHAR was fraudulent and a conspiracy for wrongful gain to M/s Rajasthan Multi Fertiliser Pvt. Ltd. and erstwhile Chairman of BISCOMAUN, Sri Tapeshwar Singh and so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trient 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 one Dr. S.N. Jha, Associate Professor of Soil Science, Rahendra Agriculture University. It is also not clear from the records that by whom the samples were collected and sent to the said expert. According to Fertiliser Control Order, 1957, the sample must be collected by the Fertiliser Inspectors of the State Government and an analysis must be conducted in the laboratory of the State/Central Government. Dr. Jha reported that the samples analysed by him was of the proper grade and standard containing nutrient in the proportion of 15:15:72. The said fertiliser was distributed to the different depots of BISCOMAUN. Against the decision to purchase 2500 mts. the then Adviser (Rehabilitation) Shri G.D. Mishra gave dispatch instruction for 2916 mts. to the said firm. It needs to be pointed out that the said Rajasthan Multi Fertilisers Pvt. Ltd. had no E.C.A. Allocation for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 1987. So in fact the fertiliser Company was paid Rs. 23.02 + Rs. 30.94 lacs in January, 1987 itself. In all, out of the total bill (after deducting shortage) of Rs.65,53,642.11, Rs. 53,97,277.32 had been paid to the company. The reports of the fertiliser being sub- standard started coming from May, 1987. On the 2nd May, 1987, the PEO Bihta informed that the said Suraj Brand fertiliser was found sub-standard on chemical analysis. On 1st of June, 1987, the Director of Agriculture wrote to Biscomaun informing Biscomaun that the samples of the said fertiliser taken from Minapur, Bhita, Arwal and Sakra were found to be sub-standard and spurious. On 18.5.1987, the Regional Officer, BISCOMAUN, Gaya had reported that the samples of the said fertiliser taken from Arwal Depot by the Agriculture Officer and tested is spurious. When reports of the the Chemical analysis by the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 that the aforesaid serious offences were committed, but the provisions of Fertiliser Control Order, 1957 were also violated by supplying spurious and sub-standard fertilisers. It is, therefore, manifest from aforesaid facts that the then Chairman, Sri Tapeshwar Singh, Managing Director Shri B.P. Sharma, Shri G.D.Mishra had entered into a criminal conspiracy with Shri O.P.Agarwal, M.D. Narayan Lal Agrawal, Banshi Lal Agrawal and Gopal Lal Agrawal, Director of Rajasthan Multi Fertilisers Pvt. Ltd. and thus Biscomaun was cheated of Rs.53,97,277.32. Tapeshwar Singh and P.P.Sharma accused persons filed Writ Petition 289 of 1988 on September 29, 1988 before the Patna High Court with a prayer that the First Information Report be quashed. The petition was adjourned to different dates on the request of the counsel for the petitioners. Meanwhile the investigation in the case was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports) 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 Court was not justified in quashing the proceeding at the stage when the special Judge was seized of the matter and was in the process of appreciating the material contained in the police reports. The learned counsel took us through the FIR and other material disclosed in the police-reports to show that prima facie offence is made out against the respondents. It is contended that the allegations in the above documents, if taken as correct, disclose the commission of a cognizable offence by the respondents. The learned counsel for the parties have taken us through the judgement of the High Court which runs into about two hundred pages. Long back in R.P. Kapur v. State of Punjab, [1960] 3 SCR 388 this Court circumscribed the jurisdiction of the High Courts to quash criminal proceedings in a given case. The law on the subject is clear and there is no scope for any ambiguity. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey 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 appear to have been considered by the I.O. nor any reference about these have been made in the arguments by the learned counsel for the opposite party which apparently have non-considered and non-disputed and when those documents themselves demonstrate that no prima facie offence is made out on the face value of those materials, then the criminal prosecution should not be allowed to continue and so it should be quashed.'' It is thus obvious that `the annexures' were neither part of the police-reports nor were relied upon by the investigating officer. These documents were produced by the respondents before the High Court along with the writ petitions. By treating `the annexures' and affidavits as evidence and by converting itself into a trial court the High Court pronounced the respondents to be innocent and quashed the proceedings. The last we can say is that this was not at all a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Director's suggestion that fertiliser be sent to BISCO factories as raw material to be converted as `Sada Bahar'. Annexure 20 dated May 21, 1987 is the memorandum prepared by P.P. Sharma for Executive Committee of BISCO regarding manufacture of `Hara Bahar' fertiliser by the BISCO factories. Annexure 20/1 is copy of the proceedings of the Executive Committee meeting held on May 21, 1987 regarding manufacture of `Hara Bahar'. Annexure 22 is the document showing that P.P. Sharma handed over charge of the office of the Managing Director to Sanjay Srivastava on June 15, 1987. Annexure 22/1 is the document showing that P.P. Sharma assumed charge as Managing Director of BISCO on May 26, 1986. Annexure 24 dated October 13, 1987 is the letter by Mishra to the firm asking it to take back the sub- standard fertiliser from 8 depots mentioned therein. Annexure 25 is the letter dated May 15, 1987 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 but there was prolonged correspondence. 3. Mr. Sibal took us through the note of Mr. G.D. Mishra dated November 14, 1986 which was approved by P.P. Sharma and Tapeshwar Singh on November 20, 1986. The note was a recommendation for the purchase of fertiliser from the firm. Mr. Sibal stated that in paras 7 and 8 of the note it has been wrongly mentioned that the brand of fertiliser being purchased from the firm was recommended in the meeting of Field Officers held on October 25, 1986. According to him there is no record of any such meeting. Further Mr. Sibal read para 8 of the note and stated that the demand in the State was of Suphla 15:15:15 type of fertiliser but G.D. Mishra in his note wrongly stated that the said brand was not available and by saying so Mishra falsely made out a case for the purchase of fertiliser brand 15:15:71/2. 4. Mr. Sibal read para 9 of the note of G.D. Mishra d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 factual assessment of Mr. Sibal, only to show that the High Court fell into grave error in appreciating the documents produced by the respondents along with the writ petitions and further delving into disputed questions of facts in its jurisdiction under Article 226/227 of the Constitution of India. We have gone through the entire material on the record carefully and we are unable to agree with the High Court that there was any ground to hold that the prosecution against the respondents was initiated as a result of any malice on the part of the informant or the investigating officer. There is no material at all to show that prior to the lodging of the FIR there was any enmity between the respondents and the informant/investigating officer. In fact there is nothing on the record to show that the investigating officer G.N. Sharma was even known to the respondents. Mr.R.K.Jain. learned counsel for on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted 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 investigating officer or with the method of investigation he can bring to the notice of the Magistrate his grievances which can be looked into by the Magistrate. When the police report under section 173 Cr. P.C. has to go through the judicial scrutiny it is not open to the High Court to find fault with the same on the ground that certain documents were not taken into consideration by the investigating officer. We do not, therefore, agree with the High Court that the FIR and the investigation is vitiated because of the mala fide on the part of the informant and the investigating officer. We may, however, notice the factual-matrix on the basis of which the High Court has reached the findings of mala fide against the informant and the investigating officer. The High Court based the findings against the informant R.K.Singh on the following materials : 1. R.K. Singh, a comparatively junior officer had tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under section 197 Cr. P.C. was required. The sanction under section 15A of the Essential Commodities Act was also not obtained. We have given our thoughtful consideration to the facts enumerated above. We are of the view that the High Court was not justified in reaching a conclusion from the above facts the R.K. Singh and G.N. Sharma acted in a biased and Mala fide manner in lodging the FIR and conducting the investigation. We are intentionally not entering into any discussion in respect of the facts mentioned above. Suffice it to say that no reasonable person on the basis of the facts stated above can come to the conclusion as drawn by the High Court. Dr. Shankar Ghosh and Mr. R.K. Jain, learned counsel appearing for the respondents have vehemently supported the findings of the High Court to the effect that the composite order granting sanction under section 197 Cr. P.C. and section 15-A of the Essential Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 the allegations. The sanctioning authority having taken the case diary into consideration before the grant of sanction it cannot be said that there was non application of mind on the part of the sanctioning authority. It is nobody's case that the averment in the sanction order to the effect that case diary was taken into consideration by the competent authority, is incorrect. We, therefore, do not agree with the finding of the High Court and set aside the same. The findings of the High Court that no offence is made out against the respondents under the Essential Commodities Act is also based on the appreciation of `the annexures' and other disputed facts on the record and as such is untenable for the reasons already indicated above. We have reproduced the FIR lodged by R.K.Singh. it is indisputable that assuming the facts contained in the FIR to be correct, prima facie offence is made out against the respondents. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 anxiety made me to probe deep into the scope of interference under Art. 226 and express my views, though I am in full agreement with my learned brother. Since my learned brother stated the facts in extenso, they bear no repetition. To focus on the questions stemmed from the findings of the High Court, I state only few facts thus: The Bihar State Co-operative Marketing Union (for short `the BISCOMAUN') is the sole purchaser and distributor of fertilizers to the farmers in the State through its depots situated at different parts of the State. When the BISCOMAUN was at the brink of liquidation due to mismanagement, the State Government superseded its Board of Directors on July 30, 1988 and appointed R.K. Singh, I.A.S. as its Administrator and Managing director. During the course of the discharge of his duties, he noted financial irregularities committed by P.P. Sharma, the then Managing Director (the first respondent), Gane ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ARBAHAR 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 are the accusations punishable under ss. 409, 420, 467, 468 and 471 read with s. 120B of the Indian Penal Code and s. 7 of the Essential Commodities Act and the Fertilizer Control Order. G.N. Sharma, Addl. Superintendent of Police, C.B.C.I.D. investigated into and collected the evidence and field two chargesheets, one under the relevant provisions of the Indian Penal Code and the other under s. 7 of the Essential Commodities Act before the Special Judge, Economic Cases and the Chief Judicial Magistrate, Patna in chargesheets Nos. 102 and 103 of 1988 respectively but the cognizance of the offence is yet to be taken. My learned brother referred the findings of the High Court to quash the FIR and the charge-sheets and the contentions of the counsel on either side. Hence I am omitting them except to refer to some of them wherever it is necessary. Undoubtedly, the arms of the High Court are long enough, when exercises its prero ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipt 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 spot to investigate the facts and circumstances and if necessary to take measures for the discovery and arrest of the offender. The provisos(a) and (b) thereof give power, in cases of minor offences to depute some other subordinate officer or if the investigating officer is of the opinion that there is no sufficient ground for entering on investigation he shall not investigate the case. Investigation consists of divers steps-(1) to proceed to the spot; (2) to ascertain the facts and circumstances of the case; (3) discovery and arrest of the suspected offender; (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons including the accused and the reduction of their statements into writing if the officer thinks fit (Sec. 161 Cr. P.C.); (b) the search of places and seizure of things necessary for the investigation to be proceeded with for the trial (Sec. 165 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 investigation is to maintain a diary of his investigation, which is known as ``Case Diary'' under s. 172 of the Code. The entries in the case diary are not evidence nor can they be used by the accused or the court unless the case comes under s. 172(3) of the Code. The court is entitled for perusal to enable it to find out if the investigation has been conducted on the right lines so that appropriate directions, if need be given and may also provide materials showing the necessity to summon witnesses not mentioned in the list supplied by the prosecution or to bring on record other relevant material which in the opinion of the court will help it to arrive at a proper decision in terms of s. 172(3) of the Code. The primary duty of the police, thus is to collect and sift the evidence of the commission of the offence to find whether the accused committed the offence or has reason to believe to have committed the offence and the evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 the accused respondents and the extent of their liability, it cannot be said that complaint was vague and that the High Court was absolutely wrong in holding that the allegations in paragraph 5 therein were vague. Accordingly the order of the High Court quashing the proceedings under s. 482 was set aside. In Abhinandan Jha & Ors.v.Dinesh Mishra, [1967] 3 SCR 668 this Court held, preceding introduction of s. 173(8) of the Code that the Magistrate cannot direct the police to submit a chargesheet and compel the police to form a particular opinion on investigation and to submit a report according to such opinion. If the police submits a report that there is no case made out for sending up the accused for trial, the court itself may take cognizance of the offence on the basis of the report and the accompanying evidence if it is found that there is sufficient evidence to proceed further or itself conduct or direct the subordinate Magist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sclosed 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. In view of the arduous task involved in the investigation he has been given free liberty to collect the necessary evidence in any manner he feels expedient, on the facts and in given circumstances. His/her primary focus is on the solution of the crime by intensive investigation. It is his duty to ferret out the truth. Laborious hard-work and attention to the details, ability to sort out through mountainous information, recognised behavourial patterns and above all, to co-ordinate the efforts of different people associated with various elements of the crime and the case, are essential. Diverse methods are, therefore, involved in making a successful completion of the investigation. From this perspective, the function of the judiciary in the course of investigation by the police should be complementary and full freedom should be accorded to the investigator to collect the evidence connecting the chain of events leading to the discove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 honestly, whether it is done negligently or not. An act done honestly is deemd to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive; and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. The action taken must, therefore, be proved to have been made mala fide for such considerations Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture 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 Administrator. In State of U.P. v. B.K. Joshi, [1964] 3 SCR 71 Mudholkare,J. in a separate, but concurring judgment at page 86 and 87 held that even in the absence of any prohibition in the Code, express or implied, a preliminary enquiry before listing the offence was held to be desirable. In this view, though it was desirable to have preliminary inquiry done, the omission in this regard by the Administrator or to obtain administrative sanction before laying the Fist Information Report would at best be an irregularity, but not a condition precedent to set in motion the investigation into the offence alleged against the respondents. It is a settled law that the person against whom mala fides or bias was imputed should be impleaded eo-nominee as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence no enquiry into those allegation would be made. Otherwise it itself is violative of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer 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 actuated with malice and impartial investigation cannot be had. If he allows the Investigating Officer to complete the investigation and the report submitted, it amounts to his waiving the objection and he would not be allowed to impeach the chargesheet on the ground of the alleged bias or mala fides. Moreover, the Investigating Officer would be available to cross- examination at the trial of the case and it would be open to the accused to elicit from the Investigating Officer necessary circumstances of ground to throw doubt on the impartiality of the Investigating Officer and must establish its effect on the prosecution evidence adduced at the trial. It is for the court to consider how far it has effected materially the result of the trial. The evidence collected during investigation would be subject to proof as per Evidence Act and tested by cross-examination. The reasoning of the Courts below that it an authority does not act impartially or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the crime and on the effectivity of the investigation. The threat of mala fide would deter an honest and efficient Investigating Officer to probe an indepth investigation into the crime. The result would be that the crime remains undetected and injury is irremediable to the society. Criminal becomes emboldened and people lose faith in the efficacy of law and order. Therefore, before countenancing such allegations of mala fides or bias it is salutory and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the Investigating Officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court. It is undoubted that no-one should unnecessarily be harassed or face an ordeal of criminal trial unless sufficient materials are collected during the investigation disclosing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 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 deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme law, the Constitution. The investigator must be alive to the mandate of Art. 21 and is not empowered to trample upon the personal liberty arbitrarily, though the Code gives unfetterd power to investigate into the suspected cognizable offence imputed to an accused. The gravity of the evil to the community resulting from antisocial activities or commission of the grave crime by itself would not give carte blanche right or power to the investigator to invade the personal liberty of a citizen except in accordance with the procedure established by law and the constitution. The observance of the procedure, therefore, is an assurance against want assaults on personal liberty. An investigating officer who is not sensitive to the constitutional mandates, may be prone to trample upon the personal liberty of a person when he is ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 of the alleged offence employed in connection with the affairs of the State". The emphasis laid in both the sections are that no court shall take cogizance of offence against a public servant alleged to have committed while acting or purported to act in the discharge of official duty, except with previous sanction of the appropriate Government. The object behind prior sanction is to prevent malacious, vexatious and unnecessary harassment to a public servant by laying false or frivolous accusation or prosecution. In other words ss.197(1), 15-A and related sections intended to immune a public servant who discharges his duties honestly and diligently from the threat of prosecution. Honest discharges of public duty would impinge adversely of the interests, acts or omissions of private persons who would be prone to harass in criminal proceedings and prosecution to demoralise a public servant. The nexus between the discharge of the public duty and the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 illegal gratification though the exercise of power given him an occasion to commit the offences. In K.Satwant Singh v.State of Punjab, [1960] 2 SCR 89 this court held that the act of cheating or abatement thereof has no reasonable connection with the discharge of the official duty or that he did so in the course of performance of his duty. The same was reiterated in Harihar Prasad v.State of Bihar, [1972]3 SCC89. In S.B.Saha v.Kochar,[1980] 1 SCR 111 this Court held that offence under ss.409 and 120B cannot be held to have been committed while acting or purporting to act in the discharge of the official duty and have no reasonable connection and bear no direct connection or inseparable link with the duty as a public servant. The official status must have furnished the accused an opportunity or occasion to commit the alleged criminal acts. It is equally well settled that "before granting sanction the authority or the appropriate Govt. must have before it th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 the Constitution, would interfere and quash the chargesheet. The High Court found that the documents relied on by the respondents/accused were not denied by the State by filing the Counter Affidavit. Therefore, they must be deemed to have been admitted. On that premise the High Court found that there is no prima facie case was made out on merits and chances of ultimate conviction is "bleak". The court is not passive spectator in the drama of illegalities and injustice. The inherent power of the court under Art. 226 of the Constitution of India is permitted to be resorted to. When the documents relied on by the respondents "demonstrate that no prima facie offence is made out on the face value of those materials, then the criminal prosecution should not be allowed to continue and so it should be quashed", and "in such a situation and circumstances the petitioners who had got a right under the Constitution for the protection of their liberty have rightly approa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficacy 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 legitimately and in my view rightly did not choose to file the Counter affidavit denying or contradicting the version of the respondents, in those documents. The commission of offence cannot be decided on affidavit evidence. The High Court has taken short course "in annihilating the still born prosecution" by going into the merits on the plea of proof of prima facie case and adverted to those facts and gave findings on merits. Grossest error of law has been committed by the High Court in making pre-trial of a criminal case in exercising its extraordinary jurisdiction under Art.226. After the charge- sheet was filed, the F.I.R. no longer remains sheet achor. The charge-sheet and the evidence placed in support thereof from the base to take or refuse to take cognizance by the competent Court. It is not the case that no offence has been made out in the charge-sheets and the First Information Report. It is, therefore, not necessary to consider all the decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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