Dilipkumar Danabhai Rathod vs State Of Gujarat
2021 Latest Caselaw 18152 Guj

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 8508 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ILESH J. VORA                               Sd/-
==============================================================

1 Whether Reporters of Local Papers may be allowed Yes to see the judgment ?

2    To be referred to the Reporter or not ?                        Yes

3    Whether their Lordships wish to see the fair copy               No
     of the judgment ?

4    Whether this case involves a substantial question               No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ DILIPKUMAR DANABHAI RATHOD Versus STATE OF GUJARAT ================================================================ Appearance:

MR YATIN OZA, SENIOR ADVOCATE WITH MS. GAYATRI P. VYAS(9391) for the Applicant(s) No. 1,2,3,4

MRS KRINA CALLA, APP (2) for the Respondent(s) No. 1

MR I H SYED, SENIOR ADVOCATE WITH MR N.D.GOHIL(334) for the

=============================================================== CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

Date : 07/12/2021

CAV JUDGMENT

1. Rule returnable forthwith. Learned APP waives service of Rule for the respondent State and Mr.Gohil, learned counsel waives service of Rule for the respondent No.2.

2. With consent of learned counsel for the respective parties and considering the issue involved in the petition, present petition

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is taken up for final disposal.

3. By way of this petition under Articles 226 & 227 of the Constitution of India, the petitioners seek to challenge the legality and validity of the impugned order dated 21.08.2021 passed in Criminal Revision Application No.243/2021 by learned 11th Sessions Judge, Surat as well as the impugned order dated 04.08.2021 passed in Criminal Misc. Application No.672/2021 below Exh:1 by learned 10 th Additional Chief Judicial Magistrate, Surat, whereby, the private complaint filed by respondent No.2 for the offence punishable under the provisions of Indian Penal Code, referred to Assistant Commissioner of Police, Surat, for investigation under Section 156(3) of the Code of Criminal Procedure ('the Code' for short).

4. Question of law sought to be raised in this petition is as to whether an order directing investigation under Section 156(3) can be passed in relation to "public servant" in the absence of valid sanction as contemplated under Section 197 of the Cr.P.C.

5. The respondent no. 2 filed a private complaint against petitioners, who are police personnel serving as constables, under Section 200 of the Cr.P.C. alleging commission of offences punishable under Sections 143, 147, 148, 149, 323, 325, 331, 348, 342, 504, 506(2), 34, & 114 of the Indian Penal Code and under Section 135 of the Gujarat Police Act. Upon receipt of the complaint, the 10 th Additional Chief Judicial Magistrate, Surat, directed the police agency to register an FIR and inquire into the matter in exercise of powers conferred under Section 156(3) of the Cr.P.C..

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6. Brief facts of the complaint is that, on 16.07.2021 at about 7:30 pm, son of the respondent no. 2 - namely Mr. Nardipsinh Shelubhai Gohil was on his way towards his home, riding upon his motorbike. When he reached near Nana Varachha Police Chowki, Surat, he noticed that the petitioners were harassing the street vendors and hawkers nearby the area. The petitioners were in civil dress and the victim injured did not realize that they are police constables. On seeing the harassment, the injured Nardipsinh requested the petitioners not to harass the poor persons. The request made by the injured was turned down by the petitioners and they got angry and abused him in filthy language and was dragged to Nana Varachha Police Chowki, where he was beaten by petitioners. The petitioners were armed with sticks and caused the grievous injury on his left ankle, at both the foot and over his lower lip.

Thereafter, injured had called his father - respondent No.2 by his mobile. Respondent No.2 reached at the police station. The injured was taken to Sanjeevani Hospital, Surat, where he was admitted and treated for the bodily injuries. Seven stitches were taken for the lip injury. There was swelling and redness over abdomen and at both the legs.

On the next day i.e. on 17.07.2021, respondent No.2 submitted a written complaint to Kapodara Police Station for the alleged misuse of power, torture and alleged illegal act of the petitioners, however, the complaint was not registered, nor any action was taken by the authority. It is alleged that, the petitioners pressurizing the respondent No.2 for compromise and also given threats that they being police officers, no one can take action against them. The respondent No.2 had also submitted a complaint to Assistant Police

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Commissioner, Surat for the alleged illegal act committed by the petitioners. Thereafter, on 19.07.2021 and 21.07.2021, he had been called by P.I., Kapodara Police Station, Surat and Police Commissioner for meeting and lastly on 24.07.2021, he was called by DCP, Zone-I, Surat. It is alleged that the authority concerned did not register the offence for the alleged cognizable offences and registered NC complaint.

In the aforesaid facts, aggrieved by non-action on the part of the police authority to register a complaint for cognizable offences as referred to above, the respondent No.2 - father of the victim filed a private complaint being registered as Criminal Misc. Application No. 672/2021 before the Court of learned Chief Judicial Magistrate, Surat as referred to above.

7. On 02.08.2021, the learned 10 th Additional Chief Judicial Magistrate, Surat, partly allowed the application, directing police agency to make inquiry under Section 156(3) of the Code for the offences punishable under Sections 143, 147, 148, 149, 323, 325, 327, 342, 504, 506(2), 114 and 34 of the IPC and Section 135 of the Gujarat Police Act and further directed to complete the investigation within 60 days by Assistant Commissioner of Police, 'A' Division.

Aggrieved by the impugned order dated 4.8.2021, the petitioners herein preferred Criminal Revision Application No.243/2021 before the Sessions Court, Surat, which came to be dismissed, upholding the order of the Magistrate.

8. Aggrieved by the orders of courts below, the petitioners have come up before this Court by filing this petition invoking extraordinary jurisdiction Articles 226 and 227 of the Constitution of India, inter alia, stating that the impugned

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orders are passed without jurisdiction, and there is total non- application of mind by the Courts below, as there is a legal bar against initiating the proceedings.

9. This Court has heard Mr. Y.N.Oza, learned Counsel assisted by Ms.G.P.Vyas, learned counsel for the petitioners, Mrs. Krina Calla, learned APP for the respondent State and Mr. I.H.Syed, learned Senior Counsel assisted by Mr. N.D.Gohil, learned counsel for the respondent No.2 - private complainant.

10. Mr. Oza, learned counsel for the petitioners raised the following contentions:-

(i) That, orders passed by courts below are completely illegal, arbitrary and against settled provisions of law. Referring to Section 197 of the Cr.P.C., it was submitted that no court shall take cognizance of any offence involving a public servant, who is accused of an offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty, except with the previous sanction of the concerned authority. On the facts of the present case, it was submitted that, on the day of incident, the petitioners were on duty and therefore, in doing their official duty, there is a reasonable connection between the act complained of and the performance of their official duty. Thus, it was submitted that, before any inquiry or investigation is ordered under Section 156(3) of the Code against the public servant, prior sanction as contemplated under Section 197 of the Code is mandatory.

(ii) In support of the aforesaid contention, strong reliance has been placed on the cases of Anilkumar Vs. M.K.Ayappa, [(2013) 10 SCC 705] and L.Narayanswamy Vs. State of Karnataka & Ors. [(2016) 9 SCC 598], to submit that, an order directing investigation under Section 156(3) of the Code could

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not have directed in relation to the petitioners, who are public servants, in the absence of valid sanction as contemplated under Section 197 of the Code.

(iii) It was submitted that, while directing to investigate the case under Section 156(3) of the Code, no any preliminary inquiry being conducted by the learned Magistrate and the impugned order passed mechanically and in casual manner, without any sufficient reasons to inquire the matter by police agency, which shows that while passing the impugned order, the learned trial Court did not apply its mind properly.

(iv) Placing reliance on the case of Sureshkumar Gupta Vs. State of Gujarat [(1998 (1) GLR 327)], it was submitted that before passing the order, the learned trial Court should have made inquiry and satisfied himself that investigation through police agency is needed in the case and inquiry by himself may not be sufficient. On the facts of the present case, it was submitted that sufficient evidence being produced by the respondent no. 2 like medical evidence, name of witnesses, along with identity of the accused. Assailing the impugned orders, it was submitted that the reasons assigned by the Court that investigation by the police agency are not sufficient to come to a conclusion that the case is required to be investigated by the police agency.

(v) Lastly, it was submitted that prior to filing of the complaint before the Court, the respondent No.2 lodged a written complaint before concerned police station, which has been registered as NC Complaint No.9/2021, which is pending for further investigation with concerned police station. Thus, trial Court should have stayed the proceedings of the private complaint and called for a report on the matter from the police officer conducting the investigation of NC Case.

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Therefore, the impugned order passed by the trial court is in violation of mandatory provisions of Section 210 of the Code.

11. In view of the aforesaid contentions, learned counsel Mr. Oza, submitted that in view of the requirement of sanction as contemplated under Section 197 of the Cr.P.C., the trial Court is not justified in referring the complaint made under Section 200 for investigation by police agency in exercise of powers conferred under Section 156(3) of the Cr.P.C. Thus, it is prayed that the orders passed by the courts below wholly without jurisdiction and in complete violation of provisions of law and therefore, interference by this Court is warranted.

12. On the other hand, learned Senior counsel Mr. I.H. Syed, for the respondent No.2 raised the following contentions to submit that the petition is not maintainable in the eye of law as no case is made out for invoking extraordinary jurisdiction of this Court:-

(i) That, a public servant, who does not purport to act in discharge of his official duty, but merely uses his official position to do an illegal act cannot claim the benefit of Section 197 of the Code. On the factual aspects of the case, he submitted that on the day of alleged incident, the petitioners were not assigned any job to investigate the case anyway connected with the injured Nardipsingh. Thus, it was submitted that there is absolutely no co-relation between the act complained of and the duties whereof, then protection could not be available.

(ii) It was submitted that the requirement of prior sanction for prosecution against the public servant would arise only when cognizance is taken. Thus, in the facts of present case, the

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order passed for investigation under Section 156(3) of the Code, having been passed at pre-cognizance stage and therefore, prior sanction is not necessary. In this context, it was submitted that, view taken in Anil Kumar Vs. M.K.Ayappa (supra) and in L.Narayana Swamy (supra) is not applicable to the facts of the present case as both the cases are pertaining to offence under the Prevention of Corruption Act and the question of Section 19 (1) of the P.C.Act read with Section 156(3) of the Code and the same does not deal with Section 197 of the Code and offences under the Indian Penal Code. In this context, the substratum of arguments is that, sanction for protection under Section 197 is different from sanction under Section 19 of the Prevention of Corruption Act as both the sections operate in different field.

(iii) It was submitted that the order directing the investigation under Section 156(3) of the Code would not amount to taking cognizance of the offence and therefore, bar as contemplated under Section 197 of the Code would not arise in the facts of the present case. In support of this contention, strong reliance being placed on the case of R.R.Chhari Vs. State of U.P.[(AIR 1951 SC 207] to submit that, when the magistrate applies his mind not for the purpose of proceedings under Section 190(1)

(a), but for taking action for some other kind i.e. ordering investigation under Section 156(3) of the code or issuing search warrant for the purpose of investigation, he cannot be said to have taken cognizance of offence. Therefore, Section 156(3) of the Code operates at pre-cognizance stage, whereas, at the stage of Section 190(1)(b) of the Code, the question of sanction does arise. In this context, it was submitted that, there is no bar against investigation by police agency or submission of a report on completion of the investigation.

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(iv) On the facts of present case, it was submitted that prima facie offence as alleged in the complaint have been made out and after considering the allegations made in the complaint and other supporting evidence, the trial Court has rightly recorded that for the discovery of weapons and to record the statements of the witnesses and to collect CCTV footage, the matter is required to be investigated by the police agency. Thus, the learned Magistrate has passed a reasoned order and has rightly exercised his jurisdiction and the same was confirmed by the revisional Court, which does not warrant any interference by this Court.

13. Mrs. Krina Calla, learned APP appearing for the respondent State that the orders passed by the Courts below do not require any interference as when the magistrate receives a complaint regarding commission of cognizable offence, the power under Section 156(3) of the Code may be invoked before he take cognizance of the offence under Section 190(1)

(a) of the Code and at the time of passing the order at pre- cognizance stage, bar is not applicable as contemplated under Section 197 of the Code.

14. Before delving into the issue, it would be appropriate to reproduce the Sections 200, 202 & 190 of the Code of Criminal Procedure, 1973, which are as under:

Section 200 - Chapter XV - Complaint to Magistrate:

"200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

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(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them."

Section 202- Postponement of issue of process:

"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 witnesses present (if any) have been examined on oath under section 200.

2. In an inquiry under Sub-Section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath;

Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

3. If an investigation under Sub-Section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."

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"Section 190- XIV - 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.

15. In case of filing of a private complaint under Section 200 of the Cr.P.C., magistrate before taking cognizance of an offence on complaint, shall examine upon oath the complainant and witnesses present, if any and process further, however, Section 202 provides that a magistrate is not bound to issue process against the accused as a matter of course. It enables him before issue of process either to inquire into a 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 there is sufficient grounds for proceedings further. The underlying object of the inquiry under Section 202 of the Code is to ascertain whether there is prima facie case against the accused. Thus, the scope of inquiry under Section 202 is very limited. At that stage, a magistrate is called upon to see whether there is sufficient ground or proceedings with the matter and not.

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16. In the present case, instead of taking cognizance, the trial court did not thought it fit to inquire himself and direct the police agency to enquire into the matter as contemplated under Section 156(3) of the Code. Sub-section (3) of Section 156 of the Code, empowers a Magistrate to order investigation. The investigation envisaged in Section 202 is different from the investigation contemplated in Section 156 as it is only to decide whether or not there is sufficient ground for the Magistrate to proceed further. The primary object of this exercise is to collect oral and documentary proof pertaining to commission of offence.

17. Now let us deal with the contentions raised by learned counsel appearing for the petitioner. The first contention is that, the investigation on private complaint under Section 156(3) of the Code against the petitioner being a public servant could not have directed without prior sanction as contemplated under Section 197 of the Code.

18. In order to appreciate the contention, it is necessary to refer to Section 197 of the Code.

"197. Prosecution of Judges and public servants: (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case 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 Union, of the Central Government;

(b) in the case 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 a State, of the State Government:

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Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.

(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.

(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted.

3(A)1 Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.

(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.]

(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."

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19. Section 197 provides that no court shall take cognizance of an offence involving a public servant, who is accused of an offence alleged to have been committed by him, while acting or purporting to act in discharge of his official duty, except with the previous sanction of the concerned competent authority. The question is whether every act done by the public servant called for a protection under Section 197 of the Code or not.

20. In case of Baijnath Gupta Vs. State of Madhya Pradesh [AIR 1966 SC 220], the question that came up before the Apex Court was, whether a public servant charged with the offences punishable under Section 477A, read with Section 109 and 409 of the IPC requires previous sanction from the competent authority, as contemplated under Section 197 of the Code. The Apex Court referred two earlier decisions in Hori Ramsingh Vs. Emperor [AIR 1939 FC 430] as well as the decision reported in H.B.Gill Vs. The King, [AIR 1948 PC 228]. In the later case, the accused was charged with 161 of the IPC with taking bribes and under Section 120B of IPC with criminal conspiracy, it was held by a Judicial committee that there was no difference in scope of that section and Section 270 of the Government of India Act, 1935. In Hori Ram's case, it was held that public servant can be said to act or purported to act in discharge of official duty, if it was such as to lie within the scope of his official duty. Thus, act of a judge receiving bribe does not become an official act, it was held. It was also held that, Government Medical Officer does not act or purport to act as a public servant in picking the pocket of the patient to whom he was examining, though examination itself may be such an act. The Court laid down the crucial test to determine whether public servant acts or purport to acts in official capacity by holding that, if challenge,

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he can reasonably claim that, what he did was, by virtue of his office.

21. In R.W.Mathams Vs. State of West Bengal [AIR 1944 SC 455], it was held that it was not every offence committed by public servant that require sanction. Under Section 197 (1) of the Code, it was not every act done by him while he was actually engaged in performance of the official duties; that, but if the act complained of, was directly concerned with his official duty and if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the Act that was important.

22. In S.B.Saha Vs. M.S.Kochar [AIR 1979 SC 1841], a three Judge bench of the Supreme Court held that, the words "any offence alleged to have been committed by him while acting or purporting to act in discharge of official duty" employed in Section 197(1) are capable of a narrow as well as wide interpretation. It was the quality of the act that was important and if it is falls within the scope and range of "official duties", the protection contemplated under Section 197 of the Code will be attracted.

23. Recently, in the case of D. Devraja Vs. Owais Sabbir Hussain [2020 (7) SCC 695], the Apex Court considered the scope and ambit of Section 197 of the Code and held as under:-

"Section 67. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above.

68. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful

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and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.

69. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act.

70. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.

72. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority."

24. In Matajog Dobey Vs. H.C.Bhari [AIR 1956 SC 44], the Supreme Court held that it is not always necessary that the need for sanction under Section 197 of the Code, is to be considered as soon as the complaint is lodged and on the allegations contained therein. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty and/or under color of

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duty. However, the facts subsequently coming to light in course of trial or upon police or judicial enquiry may establish the necessity for sanction. Thus, whether sanction is necessarily or not may have to be determined at any stage of the proceedings.

25. Recently, a three judge Bench of the Supreme Court has considered a similar issue in the case of Station House Officer, CBI/ACB/Bangalore, Vs. B.A.Srinivasan [2019 (16) Scale 803], where cognizance order passed on chargesheet was challenged on the ground of lack of sanction and prayer of discharge was made, but trial court rejected the same and in criminal revision, High Court interfered. The Supreme Court did not approve the order of High Court and held that,protection under Section 197 is available or not has to be examined not only on consideration that incumbent is a "public servant", but also whether the offence alleged to have been committed relates to his act or purporting to act in discharge of official duties, which would require investigation into facts. Relying on earlier judgments, in Sambhoo Nath Mishra Vs. State of U.P. [(1997) 5 SCC 326], Parkash Singh Badal Vs. State of Punjab [(2007) 1 SCC 1, Rajib Ranjan Vs. R. Vijay Kumar [(2015) 1 SCC 513], P.K.Pradhan Vs. State of Sikkim represented by Central Bureau of Investigation [(2001) 6 SCC 704] and N.K.Ganguly Vs. CBI, New Delhi [(2016) 2 SCC 143], the Apex Court said that whether alleged act is intricately connected with discharge of official function and whether matter would come within the expression "while acting or purporting to act in discharge of their official duty" would crystallize only after evidence is led and issue of sanction can be agitated at a later stage as well. It has been further held that without there being evidence and issue having been

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considered by trial Court, at the stage of summoning such an issue, cannot be examined by a superior Court on a revision or on an application under Section 482.

26. In light of the law laid down by the Apex Court and considering the facts of the present case, the trial Court thought it fit to enquire the matter by police agency under Section 156(3) of the Cr.P.C. It is settled law that while dealing with the application or passing an order under Section 156(3) of the Code, magistrate does not take cognizance of the offence and apply his mind only for ordering an investigation under Section 156(3) of the Code, as it is an order in nature of a peremptory reminder or intimation to the police to exercise its primary duty and power of investigation in terms of Section 151 of the code. Such an investigation embraces the continuity of process which begins with collection of evidence and ends with the final report under Section 159 or submission of chargesheet under Section 173 of the Code.

27. Recently, in the case of Jayant & Ors. Vs. State of U.P, [(2021) 2 SCC 770], on the identical issue as raised in the present petition, it has been held by the Supreme Court that when the court refers a complaint for investigation under Section 156 (3 ) of the Code, it does not amount to taking cognizance of an offence by the Court. Thus, in the present case, it appears that there is no any allegation made in the complaint that the act was done or purported to be done in discharge of official duty. The learned trial Court applied his mind for very limited purpose so as to whether the matter is required to be enquired by himself or by police agency. A perusal of the impugned order would show that, the trial Court observed that the inquiry by police agency is necessary as there is a need for collection of evidence. In this background facts, this Court is of the view that considering the allegations

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made against the petitioners in the complaint and observations made in the impugned order, it cannot be said that the trial Court has taken a judicial notice of an offence for taking cognizance of an offence in terms of Section 190 (1)(b) of the Cr.P.C. It is pertinent to note that Section 197 of the Cr.P.C restricts the court for taking cognizance of the offence. In other words, it provides that without sanction, taking cognizance is barred and not the investigation. In the facts of the present case, whether the alleged act is intricately connected with the discharge of official function can be examined even after submitting the report by the police agency, as a matter of fact, court may consider the report to arrive at a conclusion that whether act complained of is connected with discharge of official function or not and it can be agitated by the petitioners at any stage of the proceedings. Thus, the contention raised by the petitioners that, the learned Magistrate is not justified in referring a complaint for investigation by police agency in exercise of powers under Section 156(3) of the Code without valid sanction under Section 197 of the Code having no any merit.

28. Strong reliance has been placed on the case of Anil Kumar VS. M.K.Aiyappa [2013 (10) SCC 705], wherein, relying upon the earlier decisions reported in (1) State of UP Vs. Parasnath Singh [2009 (6) SCC 372] and (2) Subramaniam Swami Vs. Manmohan Singh [2012 (13) SCC 64], it has been held that Special Judge cannot order of registration of FIR under Section 156(3) of the Code for the offence under the Prevention of Corruption Act, 1988 without prior sanction from the competent authority.

29. In the case of Manju Surana Vs. Sunil Arora [2018 (5) SCC 557], referring the earlier decisions Anil Kumar (supra) and L. Narayan Swamy Vs. State of Karnataka [2016

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(9) SCC 598], in para 35, it has been held that, the complete controversy referred to aforesaid and the conundrum arising in respect of interplay of the prevention of Corruption Act offence read with Cr.P.C. is thus required to be settled by a larger Bench.

30. On the basis of foregoing discussions, in view of the reference made to the larger Bench, considering the facts and circumstances of present case and upon perusal of the observations made in the impugned order, this Court is of the opinion that when trial Court has not taken "cognizance" of the offence, as provided under Section 190 (1)(b) of the Code, at the stage of referring the matter under Section 156(3) of the Code, the cited judgments as referred to above would not rescue the case of the petitioners.

31. The second contention raised by learned counsel for the petitioners that the order does not reflect the application of mind by the trial Court and no reasons exist to direct the police agency to investigate the case as sufficient evidence being produced by the complainant before the trial Court so as to take decision whether case is made out for issuance of the process or not. A perusal of the impugned order, the trial Court recorded the findings observing that for the purpose of preparing detail panchnama of place of incident, to recover CCTV footage, examination of the witnesses, and seizure of the weapons the assistance of the police agency is needed to investigate into the matter. The trial Court has also taken into consideration the affidavit filed by respondent no.2 in support of his complaint. This Court is of the considered view that before passing the order, the learned trail Court has verified the truth and veracity of the allegations and properly apply its judicial mind while coming to the conclusion that investigation by police agency is necessary in the matter, which clearly

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shows that the powers have been duly and legally exercised by the learned Magistrate and thus, the impugned orders do not suffer from legal infirmity, which requires interference by this Court. Accordingly, this Court does not find any merit in the petition to exercise the power under Section 482 of the Code in quashing the impugned orders as well as the proceedings initiated against the petitioner.

32. In view of the foregoing reasons, there appears to be no error in the impugned order passed by the learned Magistrate and I do not find any cogent reason to interfere with the impugned order. Accordingly, petition fails and is hereby dismissed. Rule is discharged.

Sd/-

(ILESH J. VORA,J)

SUCHIT