Vipul Mohinder Paul Mittra vs State Of Gujarat
2021 Latest Caselaw 12989 Guj

     R/SCR.A/3688/2018                                       JUDGMENT DATED: 01/09/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CRIMINAL APPLICATION NO. 3688 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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

2      To be referred to the Reporter or not ?                           No

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

4      Whether this case involves a substantial question of law as to the No
       interpretation of the Constitution of India or any order made
       thereunder ?

========================================================
                          VIPUL MOHINDER PAUL MITTRA
                                     Versus
                           STATE OF GUJARAT & 1 other(s)
========================================================
Appearance:
MR NAVIN PAHWA SENIOR ADVOCATE WITH MR.NANDISH H
THACKAR(7008) for the Applicant(s) No. 1
MR RC KODEKAR(1395) for the Respondent(s) No. 2
MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
========================================================

     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                   Date : 01/09/2021

                                  ORAL JUDGMENT

1. Heard learned Senior Advocate Shri Navin Pahwa with learned

Advocate Shri Nandish H. Thackar on behalf of the applicant, learned

Additional Public Prosecutor Ms. Maithili D. Mehta on behalf of

respondent no.1-State and learned Special Public Prosecutor Shri R.C.

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Kodekar on behalf of respondent no.2- Central Bureau of Investigation.

2. Issue Rule. Learned Additional Public Prosecutor as well as learned

Special Public Prosecutor waive service of rule for the respective

respondents.

3. With the consent of parties, the present application is taken up for

final hearing.

4. By way of this application, the applicant has sought for quashing and

setting aside of impugned order passed by the learned Special Judge, (C.B.I)

dated 14.09.2016 in RC No. 27 (A)/ 2000-GNR whereby the second

closure report filed by the C.B.I is set aside.

5. Brief facts leading to filing of the present application being that

respondent no.2- CBI had registered an FIR being RC No.27 (A)/ 2002-

GNR against five persons namely (1) Shri N.R. Pai, the then Chief

Executive Engineer, Kandla Port Trust ( hereinafter referred to as 'KPT'),

Gandhidham, (2) Shri B.P. Asnani, Senior Stores Officer, KPT,

Gandhidham, (3) Shri Mohan Ashwani, the then Assistant Clerk, KPT,

Gandhidham, (4) Shri M.L. Belani, the then Sub- Engineer, KPT,

Gandhidham and (5) M/s Hari Agency, Gandhidham.

R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021

6. The applicant was not named as an accused in the FIR. The allegation

as levelled against accused in the FIR being that the accused had colluded

with each other and had caused loss of more than Rs. 6 lacs to KPT and

corresponding gain to themselves in the matter of purchase of "Allcreel

Blankets" during the period between 1998-99. The FIR was alleging

commission of offence punishable under Section 120-B read with Section

420 of the Indian Penal Code and offence punishable under Section 13(2)

read with Section 13(1)(d) of the Prevention of Corruption Act 1983. It

appears that after the FIR had been registered, the investigation had been

entrusted to one Shri AGL Kaul, Police Inspector for investigation and

whereas investigation had thereafter been taken up by one Shri R.K. Das,

Police Inspector, C.B.I. It further appears that Investigating Officer, CBI

had submitted final report under Section 173 of the Code of Criminal

Procedure,1973 in connection with the FIR referred to hereinabove

recommending closure of the case, against accused named in the FIR on the

ground that there was no malafide, misconduct or serious financial

irregularities in the purchase of the item concerned at the instance of the

accused. It further appears that the said report dated 26.10.2004, had not

been accepted by the learned Special Judge, CBI Court, No. 3, Mirzapur,

Ahmedabad and whereas the CBI was directed to carry out further

investigation in the case and submit report under Section 173 of the

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Criminal Procedure Code, afresh. It further appears that pursuant to the

order of the learned Special Judge dated 09.08.2010, referred to herein-

above, the CBI through one Mayur Joshi, Police Inspector had conducted

the investigation with regard to the FIR and whereas the said Investigating

Officer had submitted report under Section 173 of the Code of Criminal

Procedure requesting the Court to close the case. It was mentioned in the

said report that the 'CBI maintains its earlier stand that, this case is required to be

closed due to lack of sufficient evidence to attribute criminality to the accused persons' .

The report dated ----04.2012 ( referred to as dated 28.06.2011 in the order

impugned, was placed before the concerned Court and whereas vide the

impugned order, the learned Special Judge CBI Court No. 9, at Mirzapur

Ahmedabad had been pleased to reject the closure report and whereas it was

further directed to file afresh final report in accordance with law against all

accused.

7. It appears that after the present application had been preferred, this

Court while issuing notice to the respondents had granted ad interim relief

in terms of staying execution, implementation and operation of impugned

order dated 14.09.2016 passed by the learned Special Judge, CBI and

whereas it appears that the said position is continued till date.

8.       Learned Senior Advocate Shri              Navin Pahwa on behalf of the






    R/SCR.A/3688/2018                               JUDGMENT DATED: 01/09/2021

applicant has assailed the impugned order by submitting that the learned

Trial Court has vide the impugned order virtually directed the Investigating

Officer to file report under Section 173 of the Code of Criminal Procedure

against the applicant after obtaining sanction from the concerned

Department. That by doing so, according to the learned Senior Advocate

for the applicant, the learned Special Judge has made the exercise of

investigation, redundant. It is submitted by learned Senior Advocate that by

virtue of the impugned order, the learned Court has placed the Investigating

Officer under a direction to obtain sanction under Section 19 of the

Prevention of Corruption Act, which virtually presupposes that charge-sheet

would be filed against the present applicant. It is submitted by learned

Senior Advocate that issuance of such a direction is almost amounting to

usurping the jurisdiction of the Investigating Officer and rendering the

process of investigation virtually redundant. Learned Senior Advocate has

further submitted that such a direction by the learned Judge is an

impermissible procedure and whereas the Supreme Court in various

judgements has laid down the law that the Magistrate cannot usurp the

jurisdiction of the police and direct them to file charge-sheet or obtain

sanction. Learned Senior Advocate in support of his challenge to the

impugned order has relied upon judgement of the Hon'ble Supreme Court

in case of (1) Mansukhlal Vitthaldas Chauhan v. State of Gujarat reported in

1998(1) GLH ( SC) 218, (2) in case of Abhinandan Jha Roopchand Lal vs.

R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021

Dinesh Mishra, State of Bihar reported in AIR 1968 SC 117 and (3) in case

of Vasanti Dubey v. State of Madhya Pradesh reported in 2012(2) SCC 731.

9. Learned Senior Advocate has further submitted that while in the first

order rejecting the closure report dated 09.08.2010, there was no reference

to any investigation being required against the role of the present applicant

and whereas the learned Judge in the said judgement inter alia observed that

the applicant appears to have been misled by the notes put up by his

subordinates.

9.1 Learned Senior Advocate further submits that as such the reference

to the present applicant, as found in the order impugned is with regard to

the finding by the learned Court that the applicant might have knowledge

that the involvement of Labour Trustees was not in accordance with legally

prescribed procedure and yet the applicant allowed the same to happen.

10. Further reference to the petitioner is with regard to selection of

sample being directed to be done by the independent agency being

Ahmedabad Textile Industry Research Association (ATIRA) in spite of the

fact that there was no provision of such sample being tested from ATIRA in

the notice inviting tenders. Learned Senior Advocate in this regard submits

that requirement of the samples being tested by independent agency like

R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021

ATIRA even in absence of any rules permitting the same, was a step taken

by the applicant to ensure that the best product is bought by the KPT and

whereas in absence of any oblique motive being alleged against the

applicant, that by itself ought not to be the ground for which an

investigation be conducted against the applicant.

10.1. Learned Senior Advocate therefore has submitted to this Court that

the learned Court having committed a grave error in not accepting the

closure report and virtually directing the Investigating Officer, CBI to file

charge-sheet against the present applicant after obtaining sanction, requires

to be interfered with by this Court.

11. As against the same, learned Special Public Prosecutor Shri RC

Kodekar has supported the decision of the learned Special Judge and has

submitted that no error much less any error of law has been committed by

the learned Judge which requires interference by this Court. Learned Special

Public Prosecutor submits that based upon confidential information, an FIR

has been registered for allegedly causing loss to KPT and corresponding

gain to the accused in the matter of purchase of " Allcreel Blankets" and

whereas learned Special Judge was completely justified when the learned

Court does not accept the closure report filed by the CBI more particularly

against the present applicant and directs further investigation since

according to the learned Court there was prima facie material against the

R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021

present applicant. Learned Special Public Prosecutor has referred to

observations made in the impugned order insofar as the applicant might be

knowing about the Labour Trustees being included in the process which

was against the prescribed procedure and the applicant having sent the

sample to ATIRA for testing. Based upon the same, it is sought to be argued

by the learned Special Public Prosecutor that since the learned Judge had

found prima facie material, therefor the order impugned order may not

require any interference by this Court.

12. Heard learned Advocates for the parties and perused the record.

13. This Court upon a close scrutiny of the record including the

complaint as well as the first order rejecting the closure report by the Special

Judge dated 09.08.2010 as well as the second closure report and the

impugned order rejecting the closure report had found an inconsistency for

which the Investigating Officer, CBI was called upon to file affidavit

explaining the said circumstance.

13.1 With regard to the above, it is clarified that in the FIR, the allegations

were against five persons who were working with the KPT at the relevant

point of time. It would be pertinent to mention here that the present

applicant at the relevant point of time was working as Deputy Chairman of

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the KPT and whereas as noted hereinabove, the applicant had not been

named in the complaint. In the first order rejecting the closure report the

learned Special Court has scrutinized the aspects of investigation in detail

and insofar as the present applicant is concerned, has inter alia observed 'it

is true that Shri Vipul Mitra also sometimes acting in the capacity of the Deputy

Chairman and sometimes in the capacity of Chairman put up inconsistent notes and

appears to have been misled by the notes put up by his subordinates'. Further the

learned Court has observed at paragraph no.13 that ".....the conspiracy hatched

amongst all the five accused to cheat and to cause financial loss to the KPT was prima

facie established." Further in the operative portion of the order the Court

notes that the closure report was with regard to five accused persons named

in the FIR. Thus it becomes clear that upto that stage the complaint was

against five accused and whereas second the closure report dated ---04/2012

has referred that the applicant is arraigned as accused no.6. A perusal of the

closure report does not reveal at all as to under what circumstance the

applicant had been named as accused except for mentioning that name of

the applicant had come up during investigation.

13.2. Since an incongruous situation appears to have arisen inasmuch the

applicant not being named in the FIR and no observations being made

against the applicant in the first order rejecting the closure dated 29.08.2010,

yet applicant had been arraigned as an accused and subsequently the

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Investigating Officer recommending to close the case on the ground of lack

of sufficient evidence to attribute criminality. To further explain since the

applicant was not named in the complaint and even in the first closure

report the applicant had not been named as accused which had been

rejected by the Court and no observations being made by the Court at that

stage and the Investigating Officer had been directed to proceed further.

Inspite of this position in the second closure report it appears that the

applicant had been named as accused which pre-supposes that the

Investigating Officer had found out some prima facie material against the

present applicant which required inclusion of name of applicant as accused

but later on the Investigating Officer himself recommends closure of the

case citing lack of material.

13.3. This Court had in view of the said position being noticed called

upon the respondent no.2, CBI vide order dated 29.06.2021 to file affidavit

clarifying two aspects namely (1) under what circumstance the name of the

present applicant came to be included in the array of accused as accused

no.6 and what procedure was followed by the CBI while arraigning the

applicant as accused no.6 and (2) the status of the criminal case after the

closure report had been rejected by the learned CBI Court impugned before

this Court. In response to the same, the Investigating Officer, CBI has filed

an affidavit dated 05.07.2021 and whereas it is attempted to be submitted

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that the applicant was named as accused before the CBI Court rejecting the

first closure report. It is further attempted to be submitted that the CBI

Court vide order dated 09.08.2010 rejecting the first closure report had

discussed the role of the applicant and directed further investigation. It is

further mentioned that the CBI had undertaken further investigation

pursuant to order dated 09.08.2010 and the role of the present applicant was

also investigated. As far as the second query of the Court was concerned, it

is mentioned that since the Court vide the impugned order had directed to

submit final report under Section 173 of the Code of Criminal Procedure

after obtaining the sanction, the CBI had forwarded the report along with

relevant records to the competent authority i.e the Ministry of Shipping,

New Delhi on 28.11.2017 for consideration of granting sanction to

prosecute the present applicant.

14. In the considered opinion perusing the affidavit filed by the

respondent no.2 and upon hearing the learned Special Public Prosecutor,

this Court is of the opinion that there is complete lack of clarity as to how

the present applicant had been arraigned as an accused in the first place.

Reliance is placed by the respondent no.2 on the order dated 09.08.2010

whereby the first closure by the CBI was rejected and whereas in the

considered opinion of this Court there is nothing in the said order to show

that the respondent no.2 was under a direction or obligation to investigate

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the role of the present applicant. The said order infact as referred to herein-

above notes that the applicant might have been misled by his subordinates

and whereas the learned CBI Court at paragraph 14, as referred to herein-

above clearly observed that there was prima facie case against all the five

accused even in the operative portion the CBI Court had rejected the

closure report against the five accused named in the FIR.

14.1. It appears that at that stage the CBI Court was very clear about the

allegation being made against five accused named in the FIR and the closure

report also being against the said five accused, which had not been accepted

by the Court. That there was no reference to any act on the part of the

present applicant which would have brought the present applicant under the

ambit of the investigation and further be brought in the array of accused in

the said order dated 09.08.2010.

14.2 While it is true that since the learned Special Judge vide order dated

09.08.2010 had directed to carry out further investigation with regard to FIR

while rejecting closure report under Section 173 of the Code of Criminal

Procedure, and whereas it was always open for the Investigating Officer to

have filed charge-sheet against accused not named in the FIR at all, yet this

Court is delving deep into its issue since there appears to be a lack of clarity

on how the applicant came to be arraigned as accused in the first place.

       R/SCR.A/3688/2018                                JUDGMENT DATED: 01/09/2021




15.         From the      record placed before this Court, it appears that the

applicant was arraigned as accused            after order dated 09.08.2010 and

whereas it also appears that while the applicant was named as an accused ,

during the course of investigation, on the conclusion of the investigation,

the Investigating Officer has recommended closure of the investigation

against all the accused including the present applicant. Since there is no

material in the closure report to show as to why the petitioner was arraigned

as accused and since in the closure report itself the Investigating Officer has

noted that there is lack of sufficient evidence to attribute criminality to the

accused persons therefore it clearly appears that the applicant had been

joined as an accused erroneously at the stage of second closure report, more

particularly, without there being any material against the applicant. It clearly

appears to this Court that on account of references made by the learned CBI

Court vide impugned order dated 09.08.2010 with regard to the applicant

under some erroneous belief, the applicant had been named as accused and

later since no material was found inter alia against the applicant, the closure

report was filed.

16. Insofar as the submissions of learned Senior Advocate Shri Pahwa for

the applicant, that the learned CBI Court vide order dated 14.09.2016 i.e.

the impugned order ought not to have directed the CBI to obtain sanction

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and that it was virtually a direction to the CBI to file charge-sheet against the

present applicant, from the additional affidavit filed by respondent no.2 it

clearly appears that the apprehension of the present applicant was well

founded inasmuch it is stated at para 5 as thus:

5. That vide order dated 14.09.2016, the Special Judge again did not accept recommendation (Final/Closure Report) of CBI to close the case agaisnt the accused in the case and directed to submit a fresh final report in accordance with law against all 5 FIR named accused, as well as the Applicant ( which was not FIR named accused), after obtaining sanction under Section 19 of the PC Act, 1988 as he is still in service. "

(emphasis supplied)

16.1 Thus it appears that the CBI has taken observation/direction at

paragraph 11 of the order dated 14.09.2016 as mandatory and from the

affidavit in reply quoted hereinabove, it clearly appears that an application

for grant of sanction as regards the present applicant has already been sent

to the concerned authority. Thus even without considering whether there

appears to be any material charge-sheet against the applicant, the CBI has

sought for sanction to prosecute the present applicant which action is

virtually mirroring the apprehension raised by learned Senior Advocate Shri

Pahwa in his arguments.

17. In this regard, this Court feels it appropriate to refer the decision of

Hon'ble Supreme Court in case of Abhinandan Jha Roopchand Lal vs.

Dinesh Mishra, State of Bihar reported in AIR 1968 SC 117 particularly

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para no. 15, 16 and 17 for the purpose of better appreciation:

"15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under s. 173, that no case is made out for sending up an accused for trial, which report, as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case in our opinion the Magistrate will have ample jurisdiction to give directions to the police, under s. 1 5 6 ( 3 ), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under s. 156(3). The police, after such further investigation, may submit a charge-sheet, or,, again submit a final report, depending upon the further investigation made by them. If, ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he, can take cognizance of the offence under s. 190(1) (c), notwithstanding the contrary opinion of the police, expressed in the final report.

16. In this connection, the provisions of S. 169 of the Code, are relevant. They specifically provide that even though, on investigation, a police officer, or other investigating officer, is of the opinion that there is no case for proceeding against the accused, he is bound, While releasing the accused,, to take a bond from him to appear, 'If and. when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating officer, and judicially takes a view different from the police.

17. We have to approach the, question, arising for consideration in this case, in the light of the circumstances pointed out above. We have, already referred to the scheme of Chapter XXIV, as well as the observations of this Court in Rishbud and Inder Singh's Case(1) that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is 'left to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack; nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of tile police, to take cognizance, under S. 190(1)

(c) of the Code. That provision, in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be in- voked even where persons individually aggrieved are unwilling or unable to

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prosecute. or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence. not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under s. 190(1) (c), on the ground that, after having due regard to the final report and the police records placed before him, be has reason to suspect that an offence has been committed. Therefore, these circumstances will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to, place the accused for trial, is that of the officer in-charge of the police station and that opinion determines whether the report is to be under s. 170, being a 'charge- sheet', or under S. 169, 'a final report'. It is no (1) [1955]1 S.C.R. 1150. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet, because, the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. Thai will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report, either under s. 169, or under s. 170, depending upon the nature of the decision. Such a function has been left to the police, under the Code."

17.1. The Hon'ble Supreme Court in the above referred judgement has

clearly defined the powers of a Magistrate with regard to accepting a final

report ( closure report) by the Investigating Officer. That while it is open

for the Magistrate to give direction to the police to make further

investigation, the Magistrate cannot direct the Police to submit a charge-

sheet since as per the dictum of the Supreme Court whether to file charge-

sheet or not would depend upon the opinion formed by the police and

whereas the Magistrate cannot compel to the police to form a particular

opinion on investigation since the same would be encroaching on the sphere

of the police. In the instant case the impugned judgement clearly appears to

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be erroneous since the learned Judge has directed insofar as the present

applicant to submit a report under Section 173 of the Code of Criminal

Procedure after obtaining sanction for prosecution. By giving such direction,

the learned Jduge was clearly directing the Investigating Officer to form an

opinion for filing a charge-sheet against the present applicant which was

beyond the powers available to the learned Special Court as per the direction

of the Supreme Court. The above position has been reiterated by Hon'ble

Supreme Court in case of Mansukhbhai Vitthaldas Chauhan V. State of

Gujarat reported in 1997 (7) SCC 622 and in case of Vasanti Dubey v. State

of Madhya Pradesh reported in 2012(2) SCC 731. Relevant observations of

the Hon'ble Supreme Court in both the judgments are quoted for benefit.

"19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows, that the sanctioning authority has to apply its own independent mind for the generation of genuie satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be had for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution

33. The High Court put the Secretary in a piquant situation. While that Act gave him the discretion to sanction or not to sanction the prosecution of the appellant, the judgment gave him no choice except to sanction the prosecution as any other decision would have exposed him to action in contempt for not obeying the mandamus issued by the High Court. The High Court assumed that role of the sanctioning authority, considered the whole

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matter, formed an opinion that it was a fit case in which sanction should be granted and because it itself could not grant sanction under Section 6 of the Act, it directed the Secretary to sanction the prosecution so that the sanction order may be created to be an order passed by the Secretary and not that of the High Court. This is a classic case where a Brand name is changed to give a new colour to the package without changing the contents thereof. In these circumstances the sanctions order cannot but be held to be wholly erroneous having been passed mechanically at the instance of the High Court."

"19. The instant matter is one such example and is one step ahead wherein the Special Judge was confronted with yet another legal impediment of lack of sanction for prosecution giving rise to a peculiar situation when he noticed and recorded that he could not proceed in the matter under the Prevention of Corruption Act without sanction for prosecution, but in spite of this he directed to obtain sanction, ordered for reinvestigation and consequently refused to accept closure report.

20. Since the Special Judge in the instant matter refused to accept the closure report dated 18.05.2004 without any enquiry or reason why he refused to accept it which was submitted by the Special Police Establishment, Lokayukta Office, Jabalpur after reinvestigation for which reasons had been assigned and there was also lack of sanction for prosecution against the appellant which was necessary for launching prosecution under the Prevention of Corruption Act, we deem it just and appropriate to hold that the Special Judge clearly committed error of jurisdiction by directing reinvestigation of the matter practically for the third time in spite of his noticing that sanction for prosecution was also lacking, apart from the fact that the Special Police Establishment, Lokayukta Office, after reinvestigation had given its report why the matter was not fit to be proceeded with.

21. We are therefore of the considered view that the Special Judge in the wake of all these legal flaws as also the fact that the Special Judge under the circumstance was not competent to proceed in the matter without sanction for prosecution, could not have ordered for reinvestigation of the case for the third time by refusing to accept closure report dated 18.05.2004. This amounts to sheer abuse of the process of law resulting into vexatious proceeding and harassment of the appellant for more than 10 years without discussing any reason why he disagreed with the report of the Lokayukta and consequently the closure report which would have emerged if the Special Judge had carefully proceeded in accordance with the procedure enumerated for initiation of proceeding under the Code of Criminal Procedure."

17.2 From the perusal of the judgements more particularly the quoted

portion, the Supreme Court has inter alia held that sanction for prosecution

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is granted by sanctioning authority upon the facts of the case as also the

material and evidence collected during investigation and whereas the

sanctioning authority has to apply its own mind independently, that the

authority is granted the discretion to grant sanction and such discretion n

should not be affected by any extraneous consideration. Furthermore the

Hon'ble Supreme Court in the judgements quoted hereinabove as well as

those referred to in the quoted portion has clearly laid down a direction that

there is no power implied or expressed in the Code of Criminal Procedure

which empowers a Magistrate to direct the Police to submit a charge-sheet

under Section 169 of Cr.P.C. Further while in case of a report the Magistrate

may or may not accept the report and whereas the Magistrate may take

suitable action in accordance with law but the Magistrate cannot impinge

upon the jurisdiction of the Police to change there view and file charge-

sheet.

18. In the instant case the direction by the learned Judge clearly appears

to be erroneous and against settled position of law inasmuch the learned

Judge has directed the Investigating Officer to obtain sanction from the

concerned Department and as referred to herein-above the CBI has

forwarded the report for grant of sanction as noted from the additional

affidavit by the CBI.

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19. Thus it clearly appears that the impugned order passed by the learned

Judge rejecting closure report, suffers from legal infirmities inasmuch as

the said order imposes direction upon the Investigating Officer to file

charge-sheet against the present applicant, which according to the Hon'ble

Supreme Court would be against the provisions of the Code of Criminal

Procedure which empowers the Investigating Officer to form an opinion as

to charge-sheet is to be filed or not. Furthermore the impugned order

virtually directs the Investigating Officer as well as the appropriate authority

to obtain/grant a sanction to prosecute the present applicant again is an

erroneous direction and against the law laid down in the Hon'ble Supreme

Court in this regard inasmuch as since such a direction takes away the

power of the sanctioning authority to take an independent position after

applying, its mind upon the material and evidence collected as to whether

prosecution would be sanctioned or not.

20. Apart from the infirmities suffered by the impugned order, this Court

also notes that insofar as the present applicant there is no specific discussion

or findings by the learned Judge as to why the Investigating Officer ought to

have investigated the role of the applicant.

21. In view of the discussions, observations and findings recorded by the

Court hereinabove, this Court is of the considered opinion that the

R/SCR.A/3688/2018 JUDGMENT DATED: 01/09/2021

impugned order dated 14.09.2016 passed by the learned Special Judge, CBI

Court No.9, Mirzapur in Closure Report No. 2 of 2012 in RC No. 27 (A)/

2000-GNR is unsustainable and therefore the same is quashed and set aside

qua the present applicant. The application therefore succeeds. Rule is made

absolute to the above extent.

(NIKHIL S. KARIEL,J)

NIRU