Varinder Kumar vs State Of Punjab
2022 Latest Caselaw 17679 P&H

     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                    CHANDIGARH

                                         CRM-M No.61105 of 2022 (O&M)
                                             Date of decision: 26.12.2022

Varinder Kumar
                                                              ....Petitioner
                                  Versus
State of Punjab
                                                            ....Respondent

CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN

Present: Mr. Nikhil Ghai, Advocate for the petitioner.

ARVIND SINGH SANGWAN J. (Oral)

Request for fixed today has been made and accepted.

The Registry is directed to assign the number to the case.

Prayer in this petition is for grant of anticipatory bail to the

petitioner in FIR No.107 dated 06.05.2022 registered under Sections

7/8 of the Prevention of Corruption Act and under Sections 119, 166

and 166-A IPC at Police Station Civil Lines Batala.

Counsel for the petitioner has argued that as per the

allegations in the FIR, which was got registered on a direction issued by

the Illaqa Magistrate exercising the power under Section 156(3) Cr.P.C.

it is stated in the FIR that on 08.08.2021 and 11.08.2021, the petitioner

has made some illegal demand of money from the complainant and later

on, the tender was allotted on 06.09.2021. It is further submitted that at

the relevant time, the petitioner was posted at Pathankot and therefore

at the time when the tender was allotted, he was not in a position to

give any undue favour.

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Counsel for the petitioner has referred to the order of the

Magistrate wherein it is observed that the complainant had approached

the police to register the complaint but no action was taken by the

investigating agency.

Counsel for the petitioner has referred to the complaint

No.79 of 2020 filed by the complainant Harvinder Singh @ Lali under

Section 156(3) Cr.P.C., wherein in the entire petition, it is nowhere

mentioned that he had approached the police before filing of the

complaint except that the alleged offence has taken place within the

jurisdiction of Police Station Civil Lines, Batala. It is further submitted

that without following the procedure under Section 154 Cr.P.C, the

learned Magistrate has wrongly directed the police to register the FIR.

Counsel for the petitioner has relied upon the judgment of

the Hon'ble Supreme Court "Priyanka Srivastava and another vs

State of Uttar Pradesh and others", 2015(6) SCC 287, to submit that it

has been held that the casual approach in issuing direction to register an

FIR is not the correct approach as the power under Section 156(3)

Cr.P.C. warrants application of judicial mind. The Hon'ble Supreme

Court has also held that there has to be prior application under Sections

154(1) and 154(3) Cr.P.C., while filing a petition under Section 156(3)

Cr.P.C. Counsel for the petitioner has, thus, argued that in the absence

of any such application or pleading in the complaint filed under Section

156(3) Cr.P.C., the Magistrate could not have issued such direction to

register the FIR.

Counsel for the petitioner has also argued that since the

offence is triable by the Special Court, the Magistrate has no power

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under Section 156(3) Cr.P.C., to issue a direction as even no prior

sanction to prosecute the petitioner was granted by the competent

authority.

Counsel for the petitioner has also relied upon the

judgment "Vasanti Dubey vs State of Madhya Pradesh", 2012(2) SCC

731, wherein it has been held by the Hon'ble Supreme Court that in the

absence of any sanction of prosecution for offence under Sections 7 and

13(1)(d) of the Prevention of Corruption Act, the Special Judge could

not direct further investigation after the police has not registered the

FIR. Counsel for the petitioner has also submitted that in the instant

case, the complainant never approached the Special Judge/Designated

Court under the Prevention of Corruption Act and has approached the

Illaqa Magistrate, who had wrongly assume the jurisdiction under

Section 156(3) Cr.P.C., without there being any prior sanction by the

Government.

Lastly, counsel for the petitioner has argued that there is

some recording of the petitioner with the complainant and the petitioner

is ready to give his voice sample to find out the truth with regard to the

allegations.

Notice of motion.

Mr. Joginder Pal Ratra, DAG, Punjab who is present in the

Court accepts notice on behalf of the respondent - State and could not

disputed the factual position.

After hearing the counsel for the parties and going through

the allegation in the complaint filed under Section 156(3) Cr.P.C.

wherein the compliance of Section 154 Cr.P.C. is missing and also in

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view of the fact that the complaint was filed not before the Special

Judge or the Designated Court and rather before the Illaqa Magistrate

that too without any prior sanction to prosecute the petitioner and

considering all these facts to be a matter of trial, this petition is allowed

and the petitioner is directed to appear before the Investigating Officer

within a period of 15 days to join investigation and he shall be released

on interim bail on furnishing bail/surety bonds subject to the conditions

envisaged under Section 438(2) Cr.P.C.

The petitioner will give the voice sample to the

Investigating Officer and in case, he failed to do so, it will be open for

the Investigating Officer to apply for cancellation of bail.

Disposed of.

                                          (ARVIND SINGH SANGWAN)
                                                   JUDGE

26.12.2022
yakub



             Whether speaking/reasoned:               Yes/No

             Whether reportable:                      Yes/No




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