9911796707
TMI Blog2018 (3) TMI 1936X X X X Extracts X X X X X X X X Extracts X X X X ..... integrity and administrative capabilities, petitioner has pleaded in the petition that during his service tenure he has earned many accolades and his uprightness was acknowledged by Government, his peers and subordinates. It is further averred in the petition that for a short stint from 2012 to 2014 he remained on deputation with Central Government as Joint Secretary, Ministry of Urban Development. At the behest of State Government, he was repatriated to parent cadre in Rajasthan in the year 2014 and after repatriation, he was deputed as Principal Secretary, Mines Department, the department with which he worked earlier for three years from 2005 to 2008. Highlighting his performance in the interregnum period between 2005 to 2008 with the Mines Department, petitioner has averred that he made sincere endeavour for augmenting the revenues of said department, streamlined mineral policy and introduced DMA online system with many innovative ideas in the best interest of department and the State of Rajasthan. While referring to his one year's second tenure with the Mines Department as Principal Secretary, petitioner has averred in the petition that within a span of one year he inked many M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warded to I.G.P.I., ACB, Jaipur, Rajasthan, the said authority without registering any Preliminary Inquiry ordered for its verification. Projecting versions of the complainant that ACB came to know nexus of one Sh. Sanjay Sethi with the dubious transactions in the department, it is submitted by the petitioner that his Mobile No.9929429910 was kept under interception to unveil alleged corruption. 6. Taking a dig at secret information, petitioner asserts that ACB has not disclosed date of such information and further conclusions drawn by it are also not forthcoming. Expressing indignation to the manner, in which matter is proceeded by ACB, upon receipt of alleged information without registering FIR, petitioner has made an affirmative attempt to castigate ACB for witch-hunt. Elaborating his submissions, in this behalf, petitioner has alleged that ACB was simply permitted to intercept mobile phone of Sh. Sanjay Sethi and its endeavor to intercept other mobile phones including the petitioner never came into offing. A significant fact, purportedly depicting ACB version that the agency had information on 15.09.2015 of a big deal to happen on 16.09.2015, is also pleaded by the petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, State has defended all the actions of ACB for exposing a big mining scam showing direct nexus of the petitioner. It is also averred in the reply that corruption has engulfed the Mines Department, involving many of its officers including the petitioner as Principal Secretary of the department. As per version of the State, one Sher Khan, Chartered Accountant - Shyam Singh Singhvi, Sanjay Sethi and Pankaj Gehlot jointly struck a dubious deal for settling an issue in connivance with the petitioner upon receipt of illegal gratification amounting to Rs. 1.25 Crores with share of petitioner and Sanjay Sethi Rs. 1 Crore. The reply further contained recitals that initially Sher Khan was to pay the amount to Sanjay Sethi on 15.09.2015 in the office of Shyam Singh Singhi but he got late, and therefore, the deal was rescheduled for next day. 10. According to the stand of State, this sort of situation prompted immediate action and therefore Addl. S.P. ACB(I) was instructed to conduct raid on 16.09.2015. During raid, at the office of Shyam Singh Singhvi, two other persons; namely, Sanjay Sethi and Dhirendra Singh @ Chintu, were present with a bag containing Rs. 2.5 Crores. When asked, Mr. Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignificant vis-a-vis proceedings in this petition. Relying on a verdict of Supreme Court in case of Col. Dr. B. Ramachandra Rao vs. The State of Orissa and Ors. [(1972) 3 SCC 256], State has submitted in its reply that the issue vociferously canvassed by the petitioner is having no ramification on legality/propriety of impugned FIR and further proceeding pursuant thereto, including charge-sheet. Respondent has also pleaded that Sections 154 & 167 Cr.P.C. are to be construed liberally and technicalities cannot be allowed to frustrate cause of justice at the cost of sacrificing public interest and allowing someone to go scot-free despite his involvement in seriously denting state economy. The State, in its reply, has also relied upon some legal precedent for defending impugned actions and refuted all the grounds with vehemence. 14. Mr. Pankaj Gupta, learned counsel for the petitioner, submits that investigation in the matter, started on secret information without registration of FIR, is per se dehors the law. Mr. Gupta would contend that particulars about secret information are absolutely vague, cryptic & unspecific inasmuch as neither date of information nor identity of alleged s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds up with the formation of opinion under Section 169 and 170 Cr.P.C., as the case may be, to be forwarded in the form of police report under Section 173 Cr.P.C. Learned counsel would contend that the definition of "investigation" under Section 2(h) of the Code includes all the proceedings under the Code for collection of evidence. 17. Making a scathing attack on the role of investigating agency for proceeding with investigation in the matter, learned counsel has urged that the mandatory provisions of Cr.P.C. as well as procedure provided in the Manual has been given complete gobye, which has obviously vitiated the entire proceedings. For substantiating his arguments, learned counsel for the petitioner has placed reliance on following legal precedents: (1) Lalita Kumar Vs. Government of Uttar Pradesh & Ors. [(2014) 2 SCC 1] (2) Ashok Kumar Todi vs Kishwar Jahan & Ors. [2011 Cr.L.J. 2317 (SC)] (3) Shri L. Shankaramurthy Vs. State by Lokayuktha Police (Criminal Petition No.3213/2012 with other connected petitions, decided on 3rd September 2012 by Bangalore Bench of Karnataka High Court) and other decisions of Karnataka High Court and order of Supreme Court passed on 24.09.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when FIR prima facie discloses commission of cognizable offence by the petitioner. Lastly, learned AAG contends that inherent jurisdiction of this Court is not liable to be exercised to camouflage alleged corrupt activities of a public servant as investigation or trial in such matters neither amounts to abuse of the process of the Court, nor the same would result in miscarriage of justice. Learned Addl. Advocate General, in support of his arguments, has placed reliance on a Division Bench decision of Aurangabad Bench of Bombay High Court in Shriman Shekha Gaikvad Vs. State of Maharashtra & Anr. (Criminal Application No.6739 of 2013, decided with four other petitions on 30th of September, 2014). 21. I have given my anxious consideration to the arguments advanced by learned counsel for the petitioner and learned Addl. Advocate General. For evaluating afflictions of the petitioner, the material available on record is also scanned by me, besides legal precedents, on which reliance is placed by the rival counsels. 22. The case in hand involves a senior bureaucrat of the State and therefore the learned counsel espousing his cause has endeavoured to articulate his submissions with full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfying the requirement of Section 154(1), 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. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. "Shall" 50. The use of the word "shall" in Section 154(1) of the Code clearly shows the legislative intent that it is mandatory to register an FIR if the information given to the police discloses the commission of a cognizable offence. 51. In Khub Chand, this Court observed as under: (AIR p.1077, para 6) "6. ... The term 'shall' in its ordinary significance is mandatory and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a go-by only in cases where the language of the section is ambiguous and/or leads to an absurdity. 56. In view of the above, we are satisfied that Section 154(1) of the Code does not have any ambiguity in this regard and is in clear terms. It is relevant to mention that Section 39 of the Code casts a statutory duty on every person to inform about commission of certain offences which includes offences covered by Sections 121 to 126, 302, 64-A, 382, 392, etc. of the Penal Code. It would be incongruous to suggest that though it is the duty of every citizen to inform about commission of an offence, but it is not obligatory on the officer in charge of a police station to register the report. The word "shall" occurring in Section 39 of the Code has to be given the same meaning as the word "shall" occurring in Section 154(1) of the Code. While embarking on significance of compelling reasons for registration of FIR at the earliest, the Court held: 93. The object sought to be achieved by registering the earliest information as FIR is inter alia twofold: one, that the criminal process is set into motion and is well documented from the very start; and second, that the earliest informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be duly recorded and the copy should be sent to the Magistrate forthwith. The registration of FIR either on the basis of the information furnished by the informant under Section 154(1) of the Code or otherwise under Section 157(1) of the Code is obligatory. The obligation to register FIR has inherent advantages: 97.1. (a) It is the first step to "access to justice" for a victim. 97.2. (b) It upholds the "rule of law" inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State. 97.3. (c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law. 97.4. (d) It leads to less manipulation in criminal cases and lessens incidents of "antedated" FIR or deliberately delayed FIR. While carving out certain exceptions to mandatory registration of FIRs, the Court has given some latitude owning to change in genesis and novelty of crimes with the passage of time to permit preliminary inquiry in such matters in relation to such offences. While dilating on the scope of preliminary inquiry, the Court finally concluded: 119. Therefore, in view of various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. 120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at large including proposed accused and in most of the cases the trap would not succeed. It is for this reason, the Supreme Court in Lalita Kumari's case (cited supra) held that as an exceptional preliminary inquiry is permissible in criminal cases before registration of offence. There is one more reason why in these kind of cases elaborate preliminary inquiry such as truthfuness of complaint and laying of trap is essential. It is for protecting a honest public servant from unwanted discomfiture. If the public servant, who is subject matter of the trap, does not accept the anthrasene smeared currency notes and refused to be party to such arrangement, the trap would fail and he would be saved and no offence would be registered against him even though initial complaint was lodged against him. In fact, the procedure undertaken by the Anti Corruption Bureau is part of fair procedure. The applicants were also protected by this elaborate procedure. In that sense by undertaking such procedure in their cases no prejudice was caused to them. Had they not accepted the illegal gratification as alleged, no offence would have been registered against them. So, the procedure that is followed p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is certainly an instance of infraction of the mandate of law but then at this stage what can be its probable ramification on the investigation carried out in the matter and charge-sheet submitted cannot be examined while divorcing the material available on record as well as remand order dated 17th of September 2015. The remand order was passed by the Sessions Judge (Anti Corruption), Udaipur after hearing counsel for the petitioner is certainly having some mitigating effect to mollify the rigor of enthusiastic arguments of the learned counsel for the petitioner regarding violation of Section 154, 165 and 167 Cr.P.C. The order dated 17.09.2015, in vernacular, reads as under: 28. Therefore, if the FIR, material/evidence collected during investigation including transcripts and the charge-sheet filed against the petitioner are scanned with a subsisting legal submission pertaining to violation of Section 154 and 165 Cr.P.C., then, it clearly emerges out that prima facie evidence for constituting offences under the P.C. Act is available. In the wake of such material available against the petitioner, clogging the trial perpetually appears to be unjust even if the Court concurs w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... potism is an unlikely hurdle for deserving educated youths to seek public employment and avail other benefits for self-employment in clear negation of right to equality. Corruption in a civilized society is akin to a dreaded disease and if not detected is sure to seriously malign the polity of the country leading to disastrous consequences. In common parlance, it has also been termed as "Royal thievery". Therefore, being opposed to democracy and social order, if not nipped in the bud at the earliest, its repercussions are obvious in the form of turbulence of the socio-economic-political system of the State. 31. Now I proceed to examine inherent powers of the High Court under Section 482 Cr.P.C. in the backdrop of facts and circumstances of the instant case as well as afflictions of the petitioner. Supreme Court, in State of Haryana & Ors. Vs. Choudhary Bhajanlal & Ors. [1992 Suppl. (1) SCC 335], laid down guidelines for exercising inherent powers under Section 482 Cr.P.C. to quash FIR and criminal proceedings. The Court held: "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." The Court further relied on the observations made by Krishna Iyer J. in State of Punjab and Anr. Vs. Gurdial Singh and Ors. [(1980) 2 SCC 471] and concluded as follows: "We feel that the following observation made by Krishna Iyer, J in State of Punjab v. Gurdial Singh may be recapitulated in this connection, that being: "If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal." In the light of the above decisions of this Court, we feel that the said observations made in the impugned judgment are u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." 33. In a subsequent decision, Vinod Raghuvanshi Vs. Ajay Arora & Ors. [(2013) 10 SCC 581], in a case under the P.C. Act, Supreme Court affirmed the order passed by the High Court whereby it declined to exercise inherent powers for quashment of criminal proceedings. The Court observed: "It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not "kill a still born child", and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither can the court embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence nor should the court judge the probability, reliability or genuineness of the allegations made therein. More so, the charge-sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
