TMI Blog2006 (12) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... l referred to in it and the relevance of it is to be considered at the time when the charge is framed. It would not be desirable to analyse minutely the materials as at that stage the Court is primarily concerned with the question as to whether charge is to be framed in respect of any offence and whether there prima facie appears existence of any material and not the sufficiency of the materials. Therefore, the appellants' stand that the charge sheet does not refer to any particular material cannot be accepted, more particularly, in view of the specific materials referred to by Learned Counsel for the respondent-State. It would not be permissible to contend that a public servant would be covered by Section 13(1)(d) (similar to Section 5(1)(d) of Old Act) and therefore the public servant would not be covered by Sections 8 and 9 of the Act. The offences under Section 13(1)(d) and the offences under Sections 8 and 9 of Act are different and separate. Assuming, Section 13(1)(d)(i) covers public servants who obtain for 'himself or for any other person' any valuable thing or pecuniary advantage by corrupt or illegal means, that would not mean that he would not fall within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms under Section 155(2) of the Code but subject to Section 155(3) of the Code. Further, under Sub-section (4) to Section 155, where a case relates to two offences to which at least one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable and, therefore, under such circumstances the police officer can investigate such offences with the same powers as he has while investigating a cognizable offence. Whether the registration of a criminal case u/s 154(1) of the Code ipso facto warrants the setting in motion of an investigation under Chapter XII of the Code - The controversy revolves around the Notification dated 19.10.2002 regarding P.S., Mohali with Statewide jurisdiction. According to Learned Counsel for the respondent-State it represents a continuity and there was no new creation. So far as the Notification dated 17.11.2003 is concerned, undisputedly, the expression used is appoint . It was clarified that though the said expression has been used, it did not actually mean appointment of a Sessions Judge and First Additional Sessions Judge, Ropar as Special Judges. They were already appointed and designate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a High Court dismissing the petition filed by the appellant in each case questioning the validity of proceedings initiated under the Prevention of Corruption Act, 1988 (in short the 'Act') and/or the Indian Penal Code, 1860 (in short the 'IPC'). In the latter category of cases the question raised is either lack of sanction in terms of Section 197 of the Code of Criminal Procedure, 1973 (in short the 'Code') or the legality thereof. 3. It is the stand of the appellant in each case that the proceedings were initiated on the basis of complaints which were lodged mala fide and as an act of political vendetta. It is stated that allegations are vague, lack in details and even if accepted at the face value, did not show the commission of any offence. It is stated that though the High Court primarily relied on a Constitution Bench decision of this Court in R.S. Nayak v. A.R. Antulay (1992)1SCC279 , the said decision was rendered in the context of the Prevention of Corruption Act, 1947 (in short the 'Old Act'). It is submitted that the provisions contained in Section 6 thereof are in pari materia to Section 19 of the Act so far as relevant for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation of the concerned cases and new Court was established for the trial of the concerned cases and jurisdiction was conferred on one officer without following the process of consultation with the High Court. These are indicative of the fact that action was taken with mala fide intention only to harass the accused persons as noted above. 6. Learned Counsel for the respondents on the other hand submitted that the decision in R.S. Nayak's case (supra) correctly lays down the position. Several attempts were made in the past to distinguish said case and to propound that the said decision did not indicate the correct position in law. The allegations of mala fide are clearly unfounded. No new court was established and in fact Special Judge of Special Court who was appointed to have consultation with the High Court was only designated to hear the cases. In fact for the sake of convenience these cases having link with each other can be disposed of early if they are taken up together by one Court. 7. In essence, it is submitted that the decision in R.S. Nayak's case (supra) is not per incuriam as contended. Under Section 19(1) of the Act previous sanction is prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l lie where any sentence in excess of the aforesaid limits is passed by a special Judge. 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,- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office 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. (2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of difficulty. There have been cases where an offence has been disclosed after the officer concerned has ceased to hold office, e.g., by retirement. In such cases it is not entirely clear whether any sanction is at all necessary. Another aspect of the same problem is presented by the type of case which, we are told, is fairly common-where an officer is transferred from one jurisdiction to another or an officer who is lent to another Department, commits an offence while serving in his temporary office and then returns to his parent Department before the offence is brought to light. In a case of this nature doubts have arisen as to the identity of the authority from whom sanction for prosecution is to be sought. In our opinion there should be an unambiguous provision in the law under which the appropriate authority for according sanction is to be determined on the basis of competence to remove the accused public servant from office at the time when the offence is alleged to have been committed. 9. The Law Commission of India in its 41st Report recommended amendment to Section 197 of the Code suggesting to grant protection of previous sanction to a public servant who is or was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed. There is no force in the contention of the Learned Counsel and the trial cannot be held to be bad for lack of sanction under Section 6 of the Act. It is their stand that where the public servant has ceased to be a public servant in one capacity by ceasing to hold office which is alleged to have been misused, the fortuitous circumstance of the accused being in another capacity holding an entirely different public office is irrelevant. It was categorically held in R.S. Nayak's case (supra) in para 13 that on analysis of the policy of the whole section the authority competent to remove the public servant from the office alleged to have mis-used is alone the competent sanctioning authority. In that case, it was inter alia, held as follows: 13. Section 5 of the 1947 Act defines the offence of criminal misconduct and a public servant who commits an offence of criminal misconduct is liable to be punished with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine. Section 6 provides for a sanction as a pre- condition for a valid prosecution for offences punishable under Sections 161, 164, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... numerated offences alleged to have been committed by a public servant. The bar is to the taking of cognizance of offence by the court. Therefore, when the court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant. Undoubtedly, the accused must be a public servant when he is alleged to have committed the offence of which he is accused because Sections 161, 164, 165 IPC and Section 5(2) of the 1947 Act clearly spell out that the offences therein defined can be committed by a public servant. If it is contemplated to prosecute public servant who has committed such offences, when the court is called upon to take cognizance of the offence, a sanction ought to be available otherwise the court would have no jurisdiction to take cognizance of the offence. A trial without a valid sanction where one is necessary under Section 6 has been held to be a trial without jurisdiction by the court. (See R.R. Chari v. State of U.P. [1963]1SCR121 ) and S.N. Bose v. State of Bihar 1968CriLJ1484a In Mohd. Iqbal Ahmad v. State of A P. 1979CriLJ633 it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed in Sections 161, 164 and 165 IPC and Section 5 of the 1947 Act have an intimate and inseparable relation with the office of a public servant. A public servant occupies office which renders him a public servant and occupying the office carries with it the powers conferred on the office. Power generally is not conferred on an individual person. In a society governed by rule of law power is conferred on office or acquired by statutory status and the individual occupying the office or on whom status is conferred enjoys the power of office or power flowing from the status. The holder of the office alone would have opportunity to abuse or misuse the office. These sections codify a well-recognised truism that power has the tendency to corrupt. It is the holding of the office which gives an opportunity to use it for corrupt motives. Therefore, the corrupt conduct is directly attributable and flows from the power conferred on the office. This interrelation and interdependence between individual and the office he holds is substantial and not severable. Each of the three clauses of Sub-section (1) of Section 6 uses the expression office' and the power to grant sanction is conferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ider. By a catena of decisions, it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants. (See Mohd. Iqbal Ahmad v. State of A.P. 1979CriLJ633 ). The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority alone would be able, when facts and evidence are placed before him, to Judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would he in a position to know what was the power conferred on the office which the public servant holds, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeded to take cognizance of the offence committed by him as a Minister, would a sanction be necessary and that too of that authority competent to remove him from the office of the Municipal President. The answer was- in affirmative. But the very illustration would show that such cannot be the law. Such an interpretation of Section 6 would render it as a shield to an unscrupulous public servant. Someone interested in protecting may shift him from one office of public servant to another and thereby defeat the process of law. Ode can legitimately envisage a situation wherein a person may hold a dozen different offices, each one clothing him with the status of a public servant under Section 21 IPC and even if he has abused only one office for which either there is a valid sanction to prosecute him or he has ceased to hold that office by the time court was called upon to take cognizance, yet on this assumption, sanction of 11 different competent authorities each of which was entitled to remove him from 11 different public offices would be necessary before the court can take cognizance of the offence committed by such public servant/while abusing one office which he may have ceased to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere reference to a provision in all cases may not in all cases imply consciousness as to the effect of that provision the case at hand does not fall to that category. In this case not only was there reference to that provision, but also this Court adopted a construction which kept in view the object of the statute and the need for interpretation in a particular way. Foundation for the interpretation is found in para 24 of the judgment. With reference to Davis Sons Ltd. v. Atkins 1977 Imperial Court Report 662 it was held that legislation must at all costs be interpreted in such a way that it would not operate as a rogue's charter. 12. In Habibulla Khan v. State of Orissa and Anr. 1995CriLJ2071 it was held was as follows: 12. However, it was contended that while the Governor had given sanction to prosecute the Chief Minister when he continued to be an MLA in the case of R.S. Nayak v. A.R. Antulay, the question whether the sanction was necessary to prosecute an MLA as a public servant did not arise. It was, therefore, contended that although the offence alleged to have been committed was during the appellants' tenure as Ministers, the appellants continued to be MLAs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The State of Bombay reported in 1955CriLJ857 at pages 1186-1187 held as follows: We have therefore first to concentrate on the word offence . Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an entrustment and/or dominion ; second, that the entrustment and/or dominion was in his capacity as a public servant ; third, that there was a disposal ; and fourth, that the disposal was dishonest . Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which in reality are for the public servant's own pleasure or benefit. Sections 7, 10, 11, 13 and 15 apply to aforestated acts. Therefore, if a public servant in his subsequent position is not accused of any such criminal acts then there is no question of invoking the mischief rule. Protection to public servants under Section 19(1)(a) has to be confined to the time related criminal acts performed under the colour or authority for public servant's own pleasure or benefit as categorized under Sections 7, 10, 11, 13 and 15. This is the principle behind the test propounded by this Court, namely, the test of abuse of office. Further, in cases where offences under the Act are concerned the effect of Section 19 dealing with question of prejudice has also to be noted. 16. In Balakrishnan Ravi Menon v. Union of India (SLP (Crl.) No. 3960 of 2002 decided on 17.9.2002) a similar plea was rejected. It was inter alia held as follows: Hence, it is difficult to accept the contention raised by U.R. Lalit, the learned senior counsel for the petitioner that the aforesaid finding given by this Court in Antulay's case is obiter. Further, under Section 19 of the PC Act, sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f England, 4th Edn., Vol.26 it is stated: A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. 18. In Govt. of A.P. v. B. Satyanarayana Rao (2000)IILLJ545SC it has been held as follows: The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. Incuriam literally means carelessness . In practice per incuriam is taken to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The quotable in law as held in Young v. Bristol Aeroplane Co. Ltd. 1944 (2) AER 293 is avoided and ignored if it is rendered in ignoratium of a statute or other binding authority . Same has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the alleged offence employed, in connection with the affairs of a State, of the State Government. * * * (2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. The section falls in the chapter dealing with conditions requisite for initiation of proceedings. That is if the conditions mentioned are not made out or are absent then no prosecution can be set in motion. For instance no prosecution can be initiated in a Court of Sessions under Section 193, as it cannot take cognizance, as a court of original jurisdiction, of any offence unless the case has been committed to it by a Magistrate or the Code expressly provides for it. And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than police officer, or upon his knowledge that such offence has been committed. So far public servants are concerned the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. Use of the expression, 'official duty' implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The Section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. 23. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty. That is under the colour of of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicability of Section 197 of the Code cannot be disputed. 24. The above position was highlighted in State of H.P. v. M.P. Gupta (2004)2SCC349 , State of orissa through Kumar Raghvendra Singh and Ors. v. Ganesh Chandra Jew 2004CriLJ2011 , Shri S.K. Zutshi and Anr. v. Shri Bimal Debnath and Anr. AIR2004SC4174 , K. Kalimuthu v. State by DSP 2005CriLJ2190 and Rakesh Kumar Mishra v. The State of Bihar and Anr. 2006CriLJ808 . 25. In Rakesh Kumar Mishra's case (supra) it was inter alia observed as follows: 14. In S.A. Venkataraman v. The State 1958CriLJ254 and in C.R. Bansi v. The State of Maharashtra 1971CriLJ662 this Court has held that: There is nothing in the words used in Section 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed. x x x 16. When the newly-worded section appeared in the Code (Section 197) with the words when any person who is or was a public servant (as against the truncat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficial position, and then to lodge a complaint. The ultimate justification for the protection conferred by Section 197 is the public interest in seeing that official acts do not lead to needless or vexatious prosecution. It should be left to the Government to determine from that point of view the question of the expediency of prosecuting any public servant. It was in pursuance of this observation that the expression 'was' come to be employed after the expression 'is' to make the sanction applicable even in cases where a retired public servant is sought to be prosecuted. 26. In P.K. Pradhan v. State of Sikkim 2001CriLJ3505 it has, inter alia, held as follows: The legislative mandate engrafted in Sub-section (1) of Section 197 debarring a court from taking cognizance of concerned in a case where the acts complained of are alleged to have been committed by a public servant in discharge of his official duty or purporting to be in the discharge of his official duty and such public servant is not removable from office save by or with the sanction of the Government, touches the jurisdiction of the court itself. It is prohibition imposed by the Statute from taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resort. Pages 398-399, 404-407, 416-420, 448 establishes facts showing recycling of several crores of rupees with the aid of Narottam Singh Dhillon, an NRI and close to Badal family. Illegally earned money used to be deposited in the account of Narottam Singh Dhillon who used to then get FDRs issued and thereafter used to take loans against the FDRs. His bank account shows operation during 1997-2002. This loan money has been given to Parkash Singh Badal, S. Kaur and Sukhbir Singh Badal as loans which have never been returned. This recycling involved making of fake entries in the bank. There is evidence showing taking of gratification in transfers, postings and promotions. Pages 430-434 show purchases of property and shares in the name of Satnam Singh and Namta Singh who were close to Badal family and the transfer of their interest to SB in the year 2001. Pages 489-494: Evidence collected shows amassing of benami property in the name of Shri Harbans Lal and his family members who are close to Badal family. Pages 499-502: reveals routing of black money into the transport companies being run by the Badal family. Pages 553-566 present a detailed analysis of the assets o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report- (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts. (5) Nothing contained in this section shall affect Section 71 of the Indian Penal Code (45 of 1860). Section 72 IPC is also relevant. Same reads as follows: 72. Punishment of person guilty of one of several offences, the judgment stating that it is doubtful of which.--In all cases in which judgment is given that a person is guilty of one of several offences specified in the judgment, but that it is doubtful of which of these offences, he is guilty, the offender shall be punished for the offence for which the lowest punishment is provided if the same punishment is not provided for all. 30. The report in terms of Section 173 of the Code is in the nature of information to the Magistrate. Statutory requirement is complied with if the requisite information is given. It purports to be an opinion and therefore elaborate details are not necessary. In K. Veeraswami v. Union of India and Ors. (1992)IILLJ53bSC it was held as follows: The charge sheet is nothing but a final report of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... analyse minutely the materials as at that stage the Court is primarily concerned with the question as to whether charge is to be framed in respect of any offence and whether there prima facie appears existence of any material and not the sufficiency of the materials. Therefore, the appellants' stand that the charge sheet does not refer to any particular material cannot be accepted, more particularly, in view of the specific materials referred to by Learned Counsel for the respondent-State. 32. It is the stand of the State that the appellant-Parkash Singh Badal was the fulcrum around which the entire corruption was woven by the members of his family and others and it was his office of Chief Minister-ship which had been abused. Therefore, Sections 8 and 9 of the Act would not be applicable to him and would apply only to his wife, son and others. It is the stand of the appellants that in the documents filed only Section 13(1) has been only mentioned and not the exact alleged infraction. It is to be noted that the offence of criminal mis-conduct is defined in Section 13. Five clauses contained in the said provision represent different types of infraction under which the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides an opportunity for commission of the offence. 35. In Baijnath v. State of M.P. 1966CriLJ179 the position was succinctly stated as follows: it is the quality of the Act that is important and if it falls within the scope and range of his official duty the protection contemplated by Section 197 of the Code of Criminal Procedure will be attracted. So far as the appellant Sukhbir Singh Badal is concerned, the stand is that he being a member of the Parliament is a public servant and cannot be charged with offences under Sections 8 and 9 of the Act. His contention is that Sections 8, 9, 12, 14 and 24 of the Act are applicable to private persons and not to public servants. The opening word of Sections 8 and 9 is whoever . The expression is very wide and would also cover public servants accepting gratification as a motive or reward for inducing any other public servant by corrupt or illegal means. Restricting the operation of the expression by curtailing the ambit of Sections 8 and 9 and confining to private persons would not reflect the actual legislative intention. If Section 8 is analytically dissected then it would read as below: (i) Whoever (ii) Accepts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear from Section 24 that there can be a proceeding against public servant for which offence under Sections 7 to 11 which per se includes Sections 8 and 9. On the face of this provision, it cannot be contended that a public servant cannot be proceeded against Sections 8 and 9. 37. Great emphasis has been led by the appellants on some factual scenario to show that the complainant was close to incumbent Chief Minister and he has been rewarded subsequently for making the complaint. In essence, the plea is that mala fides are involved. This allegation of mala fides is also linked with the so called conferment of power with the particular police station at Mohali and conferment of jurisdiction on a particular Special Judge by Notification dated 17.11.2003. A plea of mala fides has not only to be clearly pleaded but specifically proved by adducing cogent evidence. Mere allegation and suspicions would not be sufficient. The person against whom mala fides conduct is attributed is interestingly not a party in the proceedings. So far as the allegation that political opponent had lodged the complaint is concerned, that itself is not sufficient for the Court to interfere. When the alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be kept by such officer in such form as the State Government may prescribe which form is commonly called as First Information Report and which act of entering the information in the said form is known as registration of a crime or a case. 40. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157 thereof. In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an information and that information must disclose a cognizable offence. 42. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer incharge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. In this connection, it may be noted that though a police officer cannot investigate a non-cognizable offence on his own as in the case of cognizable offence, he can investigate a non- cognizable offence under the order of a Magistrate having power to try such non-cognizable case or commit the same for trial within the terms under Section 155(2) of the Code but subject to Section 155(3) of the Code. Further, under Sub-section (4) to Section 155, where a case relates to two offences to which at least one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable and, therefore, under such circumstances the police officer can investigate such offences with the same powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of the concerned police station would have power to enquire into or try under provisions of Chapter XIII. Section 156(3) vests a discretionary power on a Magistrate empowered under Section 190 to order an investigation by a police officer as contemplated in Section 156(1). It is pertinent to note that this provision does not empower a Magistrate to stop an investigation undertaken by the police. (See State of Bihar and Anr. v. J.A.C. Saldanha and Ors. 1980CriLJ98 ]. In that case, power of the Magistrate under Section 156(3) to direct further investigation after submission of a report by the investigating officer under Section 173(2) of the Code was dealt with. It was observed as follows: The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02. 46. At this juncture, it is relevant to note that allegations of impropriety were made because of the Notification dated 17.11.2003 relating to jurisdiction of the Special Judge. A few relevant aspects need to be noted at this juncture. The Court of Special Judge, Ropar was created by Notification dated 5.1.1990 of the State Government which was issued in consultation with the High Court for the area of Ropar District. Another Notification was issued on 5.9.2000 in consultation with the High Court. By this Notification, Sessions Judges in the State of Punjab were appointed as Special Judges within their respective districts. The Notification dated 31.10.1994 creating P.S., Chandigarh with Statewide jurisdiction which was shifted to P.S., Mohali by order dated 20.4.1995 was already in existence when Sessions Judges were made Special Judges. There is no dispute about this fact. 47. The controversy revolves around the Notification dated 19.10.2002 regarding P.S., Mohali with Statewide jurisdiction. According to Learned Counsel for the respondent-State it represents a continuity and there was no new creation. So far as the Notification dated 17.11.2003 is concerned, undispute ..... 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