Rohitashav Kumar vs State Of U.P. And Another
2018 Latest Caselaw 1540 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR                                               Judgment Reserved on 4.7.2018
 
Judgment Delivered on 16.07.2018
 
Court No. - 1
 
Case :- APPLICATION U/S 482 No. - 22428 of 2018
 
Applicant :- Rohitashav Kumar
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Bhanu Bhushan Jauhari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

1. Heard Sri B.B. Jauhari, learned counsel for the applicant and Sri N.K. Verma, learned AGA for the State and perused the record.

2. The present 482 Cr.P.C application has been filed with the prayer to quash the order dated 8.2.2018 passed in Misc. case no. 10 of 2017 (Rohitashav Kumar Vs. Shishu Pal Singh and others) under Section 467, 468, 471, 120B I.P.C. read with section 7/13 Prevention of Corruption Act, decided by Special Judge (Prevention of Corruption Act) Court no. 2/ Additional Sessions Judge Bareilly (Annexure no. 2) and the further prayer is made to stay the operation and effect of the said order dated 8.2.2018 (Annexure no. 2) and that a direction be issued to the said Court to pass fresh orders on the application of the applicant.

3. It would be proper to refer here to the complaint made as well as the impugned order passed thereon so as to know what were the facts of the case and what order was passed by the Court below. In the complaint, it is mentioned that the petitioner has submitted an application before the Court below under Section 156(3) Cr. P. C. stating that he was appointed on the post of clerk in District Panchayat Uchchtar Madhyamik Vidyalaya Devkali, Shahjahanpur, vide order dated 20.02.2009 by the Manager/Chairman of the District Panchayat Shahjahanpur and was working in that capacity from 24.02.2009 to 23.01.2010 but he was not paid salary for the said period. In course of time he was removed from the said post and the said post was filled up by promoting class IV employee, Sri Rajiv Kumar. Because the appointment of the petitioner was made in accordance with rules, an order was passed by competent authority on 31.12.2010 for absorption of the petitioner in District Panchayat but despite various correspondence having been made, the Apar Mukhya Adhikari, Shishu Pal Singh, District Panchayat, Shahjahanpur did not allow him to take charge, instead demanded illegal gratification of Rs. 5 lakhs, which demand he could not fulfill. Being aggrieved, the petitioner made a written complaint to the Hon'ble Chief Minister vide letter dated 15.09.2016, in pursuance whereof on 23.03.2017 somebody called on the mobile phone of the petitioner being 9935447637 at 4:09 P.M. and 4: 32 P.M. from phone numbers 9336038850 and 7786970533, who identified himself as Naresh and demanded a bribe of Rs. 5 lakhs and it was told that he was talking to him on phone at the instance of Special Secretary, Sri Mahendra Kumar from Secretariat Lucknow. If he pays Rs. 5 lakhs his work would be done and the said amount shall have to be paid by him at District Panchayat, Shahjahanpur. The recording of telephonic conversation is in existence. Thereafter, when the petitioner contacted Mukhya Adhikari he told him to contact Anil Diwedi. When Anil Diwedi was contacted, he again made a demand of Rs. 5 lakhs, to which the petitioner stated that he was a poor man and was not in a position to arrange such a huge amount. Thereafter, both the persons sent a false report to the Government, after getting a forged email sent to Lucknow, a false case was registered against the petitioner at Police Station Sadar Bazar. It is further mentioned that if any such email was sent, the same might have been sent by Shishu Pal Singh, Apar Mukhya Adhikari in collusion with some other person, to falsely implicate the petitioner, because the said officer was resident of Lucknow itself. The petitioner went to police station to lodge an F.I.R in the matter, when he was not heard, he sent a registered complaint in that regard to Superintendent of Police, Shahjahanpur but even he did not take any action thereon.

4. The learned Court below after having considered the said complaint passed the impugned order rejecting the same on the basis of the law laid down by Hon'ble Apex Court in the matter of Anil Kumar and others Vs. M.K. Aiyappa, (2013) 10 SCC 705 holding that passing an order on an application under Section 156(3) Cr.P.C. moved against Government servant would not be within the ambit of law because that requires obtaining prosecution sanction prior to passing any order upon such an application which is a mandatory provision under Section 19(3) of the Prevention of Corruption Act, 1988.

5. Learned counsel for the petitioner has mainly assailed the said order on the ground that in view of a subsequent judgment of Hon'ble Supreme Court passed in HDFC Securities Limited and others Vs. State of Maharashtra and others reported in SCC 2017(1) Page 640 decided on 9th December, 2016, it is not necessary to seek prior sanction for prosecuting Government servant at the time of passing an order on an application moved against him under Section 156(3) Cr.P.C. for issuing a direction to register a criminal case under Prevention of Corruption Act, 1988. It is vehemently argued that the order under Section 156(3) Cr.P.C. requiring investigation by police does not amount to taking cognizance and that the stage of cognizance arises only after investigation report is filed before the Magistrate. Therefore, the impugned order is not sustainable in the eyes of law laid down by Hon'ble Supreme Court in the HDFC Securities Limited Case(supra).

6. It would be pertinent for us to refer here to the position of law in the matter and for that we would like to submit here the position of law in this regard as pointed out in Aiyappa's case (supra). It is held by the Hon'ble Supreme Court where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C. Magistrate is required to apply his mind, and in such a case, Special Judge/Magistrate cannot refer the matter under Section 156(3) Cr.P.C. for investigation against a public servant without a valid sanction order under Section 19(1) of the Prevention of Corruption Act, 1988. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complaint, as such as reflected in the matter, will not be sufficient. After going through the complaint, the documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C. should be reflected in the order, though a detailed expression of his views is neither required nor warranted. Further it is held that the word "cognizance" has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge under the Prevention of Corruption Act, 1988 refers a complaint for investigation under Section 156(3) Cr.P.C., obviosly, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 Cr.P.C., the next step to be taken is to follow up under Section 202 Cr.P.C. Consequently a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage. Further it is held that a Special Judge of Prevention of Corruption Act is deemed to be a Magistrate under Section 5(4) of the Prevention of Corruption Act, 1988 and, therefore, clothed with all Magisterial power provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options; he may take cognizance of the offence under Section 190 Cr.P.C. or proceed further in inquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) Cr.P.C. It is further held that Section 19(3) of the Prevention of Corruption Act, has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a Court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C.

7. In HDFC Securities Limited case (supra) the order passed by Magistrate under Section 156(3) had been challenged, it was held that the order under Section 156(3) Cr.P.C. requiring investigation by police cannot be said to have caused an injury of irreparable nature as the stage of cognizance would arise only after the investigation report is filed before the Magistrate. It was held that at the stage of passing an order on an application under Section 156(3) Cr.P.C. requiring investigation, the High Court had correctly assessed the facts and law and held that the filing of the petitions under Article 227 of the Constitution of India or under Section 482 Cr.P.C., at that stage were nothing but pre-mature. It is found that though in this case the Hon'ble Supreme Court did quote a para from the judgment passed in Aiyappa's case (supra), but the finding given in Aiyappa's case (supra) with respect to the position of law in the matter of direction issued on an application under Section 156(3) Cr.P.C. has not been specifically dealt with, emphatically saying that the position of law laid down in the Aiyappa's case (supra) was erroneous. In view of this we are of the view that the position of law as clarified in this regard in the Aiyappa's case (supra) would be appropriate to be followed as of now.

8. In view of the above position of law, we find that in the case at hand since the petitioner is proposing to move against Government servant by moving an application against them under Section 156(3) Cr.P.C. to get an F.I.R. lodged against them under Prevention of Corruption Act, 1988, it would not be possible to pass an order on such an application against Government servants for registration of case against them without seeking prior sanction from competent authority as is a mandate of law under Section 19 of the Prevention of Corruption Act, 1988. Therefore, we do not find any substance in the argument made by the learned counsel for the petitioner in the present matter and do not find any error in the impugned order to have been made by the learned Court below.

9. After having heard the learned counsel for the parties and perused the impugned order as well as the material brought on record, we are of the view that the impugned order is based upon relevant considerations and supported by cogent reasons, the same does not suffer from any irregularity, illegality or jurisdictional error, hence no interference is required by this Court. The prayer for quashing the impugned order is refused.

10. The present 482 Cr.P.C. application lacks merit and is, accordingly, dismissed.

11. No order as to costs.

            (Dinesh Kumar Singh-I, J.)             (Ramesh Sinha, J.)

Order Date :- 16.07.2018

Ashok Gupta