TMI Blog2018 (3) TMI 1434X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Government has to be arrayed in respect of any role performed or not. The mere presence in one meeting of respondent No.1 and that too when he was not a signatory and really had no role to play in that capacity, as apparent from the minutes, cannot be now used to justify his name being included as an accused. This is clearly an afterthought. It is not for the appellant to question as to which officer should or should not be present. Respondent No.1 needs to be struck off from the array of parties both in the present proceedings and consequently in the complaint - if a situation arises where investigation is directed u/s 156(3) of the Cr.P.C. and some material comes to light to array respondent No.1 as an accused, our order would not come in the way. The matter is referred to a larger Bench - application allowed. - Criminal Appeal No. 457 of 2018, (Arising out of SLP (Crl.) No.5838 of 2014) And Criminal Appeal No. 458 of 2018, (Arising out of SLP (Crl.) No.1092 of 2015) - - - Dated:- 27-3-2018 - Mr. J. Chelameswar And Mr. Sanjay Kishan Kaul JJ. For the Petitioner(s) : Mr. Prashant Bhushan, AOR For the Respondent(s) : Mr. Ajay Kapur, AAG, Mr. Anirudh Singh, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke payments for the outstanding and running projects, the Chief Secretary, accused No.1, is stated to have written a proposal to the Finance Department but the Finance Secretary expressed his inability for making available such huge amounts. The fund was stated to have been digressed. 4. It is extremely relevant to note that from the facts, which have now come to light, respondent No.1 herein was neither holding the post of the Principal Secretary of the P.H.E.D nor the Chief Secretary at the relevant stage of time and the description of his office is consequently not correct. The first respondent was actually holding the post of Principal Secretary to the Chief Minister. 5. The Special Judge closed the complaint in terms of order dated 4.2.2014 on account of the fact that the accused persons arrayed as respondents are either public servants or have remained as public servants and no prior sanction has been granted by the competent authority under Section 19 of the PC Act read with Section 197 of the Cr.P.C. To support this conclusion, reliance was placed on the judgment of this Court in Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705 opining that no complaint could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of any other person, of the authority competent to remove him from his office. 9. He sought to emphasise that the bar is to the court taking cognizance of an offence except with the previous sanction . 10. We may next refer to Chapter XIV of the Cr.P.C., which is under the heading Conditions Requisite for Initiation of Proceedings . Section 190 states as to when cognizance would be taken and is reproduced for convenience as under: 190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2 ), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1 ) of such offences as are within his competence to inquire into or try. 11. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses, the latter Magistrate need not re-examine them. 13. The Magistrate, if he thinks fit, may postpone the issue of process against the accused to inquire the case himself or direct an investigation post taking cognizance, as per Section 202, which is reproduced herein under: 202. Postponement of issue of process.- (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192 , may, if he thinks fit [and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction], postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (b) where the complaint has not been made by a Court, unless the complainant and the witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being an inquiry under Section 156(3) of the Cr.P.C.: 18. In R.R. Chari v. State of U.P. 1951 SCR 312 , a three Judges Bench of this Court, in the inception years of this Court, referred to Gopal Marwari v. Emperor AIR 1943 Pat 245 qua the observations that the word cognizance indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. This was different from initiation of proceedings. The word cognizance was somewhat of an indefinite import and perhaps not used exactly in the same sense. Thereafter it proceeded to notice the observations of Das Gupta, J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee AIR 1950 Cal 437 where observations were made to the effect that what is taking cognizance has not been defined in the Cr.P.C., but it could be said that any Magistrate who has taken cognizance of any offence under Section 190(1)(a) of the Cr.P.C. must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter proceedings under Section 200 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself. Thereafter in paras 14 17, it has been observed as under: 14. This raises the incidental question: What is meant by taking cognizance of an offence by a Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding . Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. 23. In Tula Ram v. Kishore Singh (1977) 4 SCC 459 (two Judges Bench) cited before us, it was observed that Sections 190 and 156(3) of the Cr.P.C. are mutually exclusive and work in totally different spheres. Thus, even if a Magistrate receives a complaint under Section 190, he can act under Section 156(3) provided that he does not take cognizance. Chapter 14 deals with post cognizance stage while Chapter 12, so far as the Magistrate is concerned, deals with pre-cognizance stage, that is to say that even when a Magistrate starts acting under Section 190 and the provisions following, he cannot resort to Section 156(3). Thus, Section 202 would apply only in cases where the Magistrate has taken cognizance and chooses to inquire into the complaint either himself or through any other agency. Before proceeding to do so, there may be a situation where the Magistrate, before taking cognizance himself, chooses to order a pure and simple investigation under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28. The Bench further proceeded to examine whether the order directing investigation under Section 156(3) of the Cr.P.C. would amount to taking cognizance of the offence since a contention was raised that the expression cognizance appearing in Section 19(1) of the P.C. Act would have to be construed as post-cognizance stage and not pre-cognizance stage and therefore, the requirement of sanction does not arise prior to taking cognizance of the offences of the P.C. Act. Insofar as the expression cognizance , which appears in Section 197 of the Cr.P.C. was concerned, a reference was made to the judgment in State of U.P. v. Paras Nath Singh (2009) 6 SCC 372 . In that case it was observed that the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Cr.P.C. and so far as the public servant was concerned this was clearly barred by Section 197 of the Cr.P.C. unless the sanction was obtained from the appropriate authority. After referring to certain other judgments on the issue of purport and meaning of the word cognizance , it was concluded that cognizance has a wider connotation and is not merely confined to the stage of taking c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional Solicitor General sought to canvas the view taken in the last two judgments referred to aforesaid to submit that application of mind was necessary to exercise power under Section 156(3) of the Cr.P.C. and that credibility of information was to be weighed before ordering investigation ( Ramdev Food Products (P) Ltd. v. State of Gujarat (2015) 6 SCC 439) . It was, thus, submitted that allegation against a public servant under the P.C. Act offences are technical in nature and would require a higher evaluation standard and thus the Magistrates ought to apply their mind before ordering investigation against public servant. The consequences of starting investigation under Section 156(3) of the Cr.P.C., it was submitted, would result in the police registering an FIR ( Suresh Chand Jain v. State of Madhya Pradesh (2001) 2 SCC 628 and Mohd. Yousuf v. Afaq Jahan (2006) 1 SCC 627) . Thus, a situation may arise where a Magistrate may exercise his power under Section 156(3) of the Cr.P.C. in a routine manner resulting in an FIR being registered against a public servant, who may have no role in the allegation made. 33. We have examined the rival contentions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be placed before Hon ble the Chief Justice of India for being placed before a Bench of appropriate strength. Crl. M.P. 161/2015 in SLP (Crl.) No.5838/2014 38. We have passed a detailed order making a reference to a larger Bench insofar as the main matter is concerned. It may be noticed that in the present Special Leave Petition, notice was issued to the Respondents, except Respondent No. 4. Since the proceedings before the Magistrate at the threshold were directed to be kept in abeyance without notice to the Respondent, and thereafter the revision petition was dismissed in limine by the High Court, the occasion for Respondent No.1 to have knowledge of the proceedings did not arise. Respondent No.1 seeks deletion from the array of parties in these proceedings as he has been wrongly arrayed as a party. 39. The aforesaid plea is predicated on the averments in the complaint itself, which seeks to make a grievance over the actions of the Principal Secretary, Public Health and Engineering Department (PHED) in which capacity respondent No.1 is stated to have been arrayed. It is averred in the application that respondent No.1 was serving as a Secretary and Princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no role to play in the discussion, why was he/respondent No.1 present? 44. We may also note the submission of learned counsel for respondent No.1 that in case a situation arises where the Magistrate has to proceed on the complaint under Section 156(3) of the Cr.P.C. and during investigation some material is found, the counsel cannot really object to the inclusion of the name of respondent No.1 at that stage. However, inclusion at this stage is stated to be without any material facts and is an embarrassment, considering the constitutional position held by respondent No.1. 45. We have given a thought to the respective pleas of the parties. 46. No doubt the process under Section 156(3) of the Cr.P.C. is only one of investigation. The larger question, of whether any such direction can be issued without prior sanction has been referred to a larger bench. Were the appellant to succeed and were the matter to go back to the Magistrate and the Magistrate after application of mind forms an opinion to direct investigation by the police, it would be always open to the Magistrate to include the name of respondent No.1 if such material is found against him. 47. Me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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