Chetram S/O Arjunlal vs State Of Rajasthan
2024 Latest Caselaw 1364 Raj/2

Rajasthan High Court

Chetram S/O Arjunlal vs State Of Rajasthan on 28 February, 2024

Author: Sudesh Bansal

Bench: Sudesh Bansal

[2024:RJ-JP:9775]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

     S.B. Criminal Miscellaneous (Petition) No. 4934/2020

Chetram S/o Arjunlal, R/o Antapada Tehsil Laxmangarh Distt.
Alwar (Raj.)
                                                                  ----Petitioner
                                   Versus
State Of Rajasthan, Through P.P.
                                                                ----Respondent


For Petitioner(s)        :     Mr. Manish Gupta
For Respondent(s)        :     Mr. Atul Sharma, PP



              HON'BLE MR. JUSTICE SUDESH BANSAL

                                Judgment

RESERVED ON                                              February 19th 2024
PRONOUNCED ON                                            February, 28th,2024
BY THE COURT

1. By way of instant criminal misc. petition under Section 482

Cr.PC, petitioner-accused has prayed to quash the order dated

25.04.2019 passed by the Special Judge, Prevention of Corruption

Cases, Alwar, dismissing an application filed by Anti Corruption

Bureau (hereinafter for short "ACB") under Section 169 Cr.PC, in

connection with FIR No.248/2016 registered at Police Station Anti

Corruption Bureau, Jaipur for offences under Sections 7, 13(1)(d)

and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter

for short "the PC Act") & Section 120-B IPC, and has prayed to

grant the application, allowing to discharge/release the petitioner-

accused in the present criminal case, on the ground of refusal of

prosecution sanction.

[2024:RJ-JP:9775] (2 of 22) [CRLMP-4934/2020]

2. Learned counsel for petitioner-Mr. Manish Gupta, strenuously

contended that as per Section 19 of the PC Act, previous sanction

for prosecution of a public servant, for the charges of corruption,

is mandatory. Petitioner is indisputably a public servant and the

application filed by ACB for grant of prosecution sanction against

the petitioner has been rejected by a competent Authority.

Learned counsel pointed out that the Managing Director, Alwar Zila

Dugdh Utpadak Sahkari Sangh Limited (hereinafter for short "the

Alwar Dairy"), vide letter dated 19.11.2016 and again vide letter

dated 08.12.2017, has forwarded a decision of the Board of

Directors, declining to grant prosecution sanction against the

petitioner, therefore, his contention is that the petitioner deserves

to be discharged from the charges of corruption and cannot be

prosecuted in connection with the aforesaid FIR.

3. Learned counsel for petitioner has vehemently argued that

an application under Section 169 Cr.PC was moved by the ACB

before the Special Judge, Prevention of Corruption Cases, to

release the petitioner, due to refusal to grant prosecution sanction

by the dairy federation, Alwar, whereupon, the Special Judge had

no option except to allow the application. Learned counsel submits

that the Special Judge erred in dismissing the application under

Section 169 Cr.PC and issuing directions suo moto, to place the

application for reconsideration of the refusal to grant prosecution

sanction, before the higher Authority/Reviewing Authority afresh,

so also to initiate further investigation in the matter.

4. Learned counsel for petitioner vociferously contended that

such exercise of jurisdiction by the Special Judge, is wholly

uncalled for as much as without jurisdiction, hence the impugned

[2024:RJ-JP:9775] (3 of 22) [CRLMP-4934/2020]

order is absolutely against the settled mandate of law, as such

needs to be quashed by the High Court in exercise of its

jurisdiction under Section 482 Cr.PC and simultaneously, the

application filed by the ACB under Section 169 Cr.PC, deserves to

be allowed.

To buttress his contentions, learned counsel has placed

reliance on following judgments:-

(i) Dharam Pal Vs. State of Haryana [(2014) 3 SCC 306];

(ii) Reeta Nag Vs. State of West Bengal [(2009) 9 SCC

129];

(iii) Amrutbhai Shambhubhai Vs. Sumanbahi Patel [(2017)

4 SCC 177];

(iv) Krishna Pati Tripathi Vs. State of M.P.; Writ Petition

No.29159/2022 decided on 21.04.2023; and

(v) Prahlad Sharma Vs. State of Rajasthan: SB Criminal

Revision No.146/2016 decided on 06.12.2018.

5. Learned Public Prosecutor appearing on behalf of State so

also for ACB, prayed to pass just and proper order as this Court

deems necessary to prevent abuse of process of law and to secure

ends of justice. However, learned Public Prosecutor does not

dispute that the impugned order was passed, dismissing the

application filed by the ACB under Section 169 CrPC, but the ACB

has not come forward to challenge the impugned order before the

High Court, in order to pursue its application.

6. Heard. Considered.

7. Briefly stated facts of the present case as culled out from the

record are that:

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(i) One Tej Singh S/o Rajaram Yadav made a written report

before the ACB, Alwar on 23.08.2016 that he was the Secretary of

milk collection center in Harijan Basti, but same has been closed

by the concerned officers of the Alwar Dairy, therefore, he is

desirous to open a new milk collection center in Village Luhadera.

On making inquiry in this regard, he came to know that

permission to open a new milk center is granted by Sh. Bannaram

Meena, Chairman of the Alwar Dairy, and he accepts application

only of those persons, who pay Rs.50,000/- additionally. He stated

in the report that Sh. Bannaram Meena himself does not take this

amount directly, but his Personal Assistant & LDC, Sh. Chetram

(petitioner herein) receives such amount from the party. He

alleged that Chetram asked him to pay the amount of gratification

of Rs.50,000/-, for granting permission to open a new milk

collection center, but since he does not want to pay the bribe to

Sh. Bannaram Meena, Chairman and Sh. Chetram (LDC-cum-PA),

hence a legal action be taken against them.

(ii) After receiving of such written complaint, a team of ACB

initially verified the allegations of making a demand of gratification

by Chetram from the Tej Singh, for the purpose of granting him

permission to open a milk collection center. In the verification, it

was found that during telephonic talks between both, the amount

of gratification was settled to the tune of Rs.45,000/- instead of

Rs.50,000/-. The complainant Tej Singh, as per instructions of the

ACB team, proceeded to pay amount of Rs.45,000/- to Chetram

and their inter se mutual talks on phone were recorded. As per

plan, Tej Singh went to office on 31.08.2016 to make payment of

amount of gratification of Rs.45,000/- and met to Chetram in the

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office-chamber of Chairman, Sh. Bannaram Meena. There, on the

instructions of Chetram, one another person Dhanni Ram Yadav,

asked Tej Singh to put the amount on the table of Chairman. He

put the amount of Rs.45,000/- on the table, which was covered by

Dhanni Ram with a small towel. Immediately thereafter, team of

ACB put a raid and the amount of gratification was seized from the

table and both persons namely Sh. Chetram and Sh. Dhanni Ram

Yadav, were arrested on the spot. In such backdrop of facts, the

FIR No.248/2016 came to be registered on 02.09.2016 at Police

Station Anti Corruption Bureau, Jaipur for offences under Sections

7, 13(1)(d) and 13(2) of the PC Act & Section 120-B IPC.

(iii) It appears from record that after thorough investigation and

on the basis of red handed trap, the ACB found the aforesaid

offences proved against Sh. Chetram and Sh. Dhanni Ram Yadav.

The role of Sh. Bannaram Meena, Chairman of Alwar Dairy, was

noticed to be suspicious, however, investigation against him was

postponed, but later on, charge sheet was filed by the ACB only

against Dhanni Ram Yadav.

(iv) It appears that when after investigation, Chetram who

happens to be posted as LDC-cum-PA of the Chairman was found

involved in the present criminal case and offence against him was

held established by ACB, but before filing of the charge-sheet

against him, since he was a public servant, an application for

seeking grant of prosecution sanction was moved by the ACB

before the Dairy Federation, Alwar. The application moved by ACB

was replied vide letter dated 19.11.2016 by the Managing

Director, Dairy Federation, Alwar that the Board of Directors has

declined to grant prosecution sanction against the Chetram. Again,

[2024:RJ-JP:9775] (6 of 22) [CRLMP-4934/2020]

an application for reconsideration the refusal of prosecution

sanction was moved by the ACB, but vide letter dated 08.12.2017

issued by the Managing Director, Alwar Dairy, it was informed that

the Board of Directors have reviewed the issue and affirmed their

previous decision to decline prosecution sanction against Chetram,

thus the second application by the ACB to reconsider the issue

was also turned down.

(v) It appears that after denial of the prosecution sanction by

the Board of Directors, twice, to prosecute the Chetram in the

present FIR, ACB moved an application under Section 169 Cr.PC

dated 24.10.2018 before the Special Judge, Prevention of

Corruption Cases, Alwar, to discharge/release the accused

Chetram, and filed charge sheet only against the co-accused

Dhanni Ram Yadav.

(vi) Learned Special Judge passed the order dated 25.04.2019,

dismissing the application of ACB under Section 169 Cr.PC with

two directions that:-

(A) to further investigate into the matter to inquire about the

role of Bannaram Meena, Chairman of the Alwar Dairy in this

matter, and;

(B) the application filed by ACB, to reconsider the issue of

refusal of prosecution sanction against accused Chetram, be

placed before the higher officials of Dairy Federation or State

Government, for re-consideration as Reviewing Authority.

8. From perusal of the letter dated 19.11.2016, issued by the

Managing Director, Alwar Dairy, it reveals that the matter of grant

of prosecution sanction to prosecute petitioner Chetram on the

[2024:RJ-JP:9775] (7 of 22) [CRLMP-4934/2020]

allegation of present FIR, was placed in the meeting of Board of

Directors dated 16.11.2016 conducted under the president-ship &

supervision of Sh. Bannaram Meena, the then Chairman of Alwar

Dairy. The prosecution sanction was refused on two grounds; i)

the amount of gratification was not recovered directly from the

Chetram, & ii) Chetram was not authorized to grant permission for

opening of a milk collection center.

9. Thereafter, when the ACB moved application for

reconsideration the issue of refusal of prosecution sanction, again

the matter was taken up in the meeting of Board of Directors

dated 29.11.2017, conducted under the president-ship of same

Chairman, Sh. Bannaram Meena. The same quorum of Board of

Directors, decided the application of the ACB for reconsideration

and affirmed their previous decision of refusal to grant prosecution

sanction, then vide letter dated 08.12.2017, the ACB was

informed about final refusal of prosecution sanction.

Therefore, in such backdrop of facts, the prosecution

sanction against the petitioner was declined in the meeting

although twice, but both meetings were held under the president-

ship of Sh. Bannaram Meena, the then Chairman of the Alwar

Dairy.

10. It is noteworthy that the main allegation of demanding bribe

was made by the complainant-Tej Singh against Sh. Bannaram

Meena, the then Chairman of Alwar Dairy, as indicated in his

written report and it was specifically mentioned that Bannaram

Meena did not take the bribe directly, but his PA-cum-LDC, Sh.

Chetram takes the amount. During the investigation by the ACB,

in their red handed trap, the amount of Rs.45,000/- was seized

[2024:RJ-JP:9775] (8 of 22) [CRLMP-4934/2020]

from the chamber of Chairman, Sh. Bannaram Meena and both

accused persons namely Chetram & Dhanni Ram Yadav were

arrested from his chamber. The ACB postponed the investigation

against Bannaram Meena, to find out his role in the present case,

however, ACB nowhere disclosed the result of investigation against

Sh. Bannaram Meena.

11. When the issue came up before the Special Judge,

Prevention of Corruption Cases, Alwar, seeking to

discharge/release the petitioner-Chetram because of refusal of the

prosecution sanction, learned Special Judge observed that in fact,

in the complaint made on 23.08.2016, two persons were named

namely (i) Sh. Bannaram Meena, the then Chairman of Alwar

Dairy, and (ii) Chetram, LDC-cum-PA of the Chairman, who

demanded the money from complainant Tej Singh. The allegations

were found true by the ACB, on prima facie verification, and

thereafter, trap proceedings were initiated on 31.08.2016. In the

red handed trap, amount of gratification, which was fixed @

Rs.45,000/-, was recovered on the spot from the office of

Chairman, Sh. Bannaram Meena. As far as Sh. Bannaram Meena is

concerned, though his role was too found suspicious, but

investigation against him was postponed at that point of time, but

in the investigation, the charges were found proved by the ACB

against Sh. Chetram & one Sh. Dhanni Ram Yadav

12. Learned Special Judge noticed that later on, the ACB

submitted charge-sheet only against Dhanni Ram Yadav.

Investigation report about the role of Sh. Bannaram Meena, was

not filed by ACB and in the meeting of Board of Directors under

the president-ship of Sh. Bannaram Meena, sanction for

[2024:RJ-JP:9775] (9 of 22) [CRLMP-4934/2020]

prosecution against the accused-Chetram was declined by the

Alwar Dairy.

13. In addition to above, the learned Special Judge also noticed

that the application of ACB to reconsider the issue of refusal of

prosecution sanction against accused-Chetram, was taken up by

the same quorum of Board of Directors, headed by Sh. Bannaram

Meena, whereas the matter ought to have been placed before

higher Authorities of Dairy Federation, or higher officials of the

State Government, to reconsider the issue of refusal to grant

prosecution sanction by the Committee headed by Sh. Bannaram

Meena. On this point, learned Public Prosecutor appearing for ACB

also expressed his concurrence, that the reviewing Authority may

differ from previous refusal and may grant prosecution sanction.

14. Thus, after extending heed on the conspectus of events

holistically, learned Special Judge not only dismissed the

application filed by ACB under Section 169 Cr.PC, but also directed

the ACB;

(A) to further investigate into the matter to inquire about the

role of Bannaram Meena, Chairman of the Alwar Dairy in this

matter, and;

(B) the application filed by ACB, to reconsider the issue of

refusal of prosecution sanction against accused-Chetram, be

placed before the higher officials of the Dairy Federation or

State Government, for re-consideration as reviewing

Authority.

15. The issue before this Court for consideration, is whether the

Special Judge, Prevention of Corruption Cases, Alwar acted well

[2024:RJ-JP:9775] (10 of 22) [CRLMP-4934/2020]

within its jurisdiction, to issue directions to the ACB as indicated

above, while dismissing the application filed by the ACB under

Section 169 Cr.PC & whether the impugned order warrants

interference by the High Court in exercise of inherent powers

under Section 482 Cr.PC?

16. In the Code of Criminal Procedure, Section 2(h) defines term

"investigation". According to the definition, "investigation" includes

all the proceedings under this Code for the collection of evidence

conducted by a police officer or by any person (other than a

Magistrate), who is authorized by a Magistrate in this behalf.

Section 156 of the Code, empowers the Police Officer to

investigate any cognizable case and as per Sub-section (3) of

Section 156, any Magistrate, empowered under Section 190 Cr.PC

may also pass an order for investigation by the Police Officer.

Section 173 of the Code, talks about the procedure, on submission

of report by the Police Officer after completion of investigation.

Sub-section (8) of Section 173 postulates powers for further

investigation in respect of offence after submission of final report

under Sub-section (2) of Section 173. It is apposite to extract

Section 173(8) ad verbatim:-

"(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-

section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)."

With reference to the afore-referred statutory provisions of

law, it cannot be said that the Magistrate (in the present case,

[2024:RJ-JP:9775] (11 of 22) [CRLMP-4934/2020]

Special Judge, Prevention of Corruption Cases) does not have

powers and is not authorized to issue directions for further

investigation, rather it can safely be held and observed that in the

scheme of Code, the Magistrate has ample power and jurisdiction

to direct for further investigation, whenever the Court comes to

the conclusion that investigation by the Investigation Agency is

either lopsided or suffer from lackadaisical, and in order to reveal

the truth and to unearth the hidden facts, further investigation is

deemed necessary. Term "further investigation" may not be

misconstrued de-novo/fresh investigation or re-investigation, but

further Investigation means additional, more and supplemental

investigation in furtherance to the previous investigation already

done. The underlying object behind to direct for further

investigation is to arrive at the truth, to render real, effective and

substantial justice. The legal proposition on further investigation,

within ambit and scope of statutory provisions of the Code,

indicated hereinabove, is well settled that the investigation agency

may proceed for further investigation suo moto or in certain

condition, with the leave of the concerned Magistrate and the

Magistrate has also jurisdiction to issue direction to the

investigation agency for further investigation, whenever deemed

necessary to do real justice in the matter. The powers of the

Magistrate are not circumscribed, yet must be exercised within

bounds of law.

17. The legal issue is no more res integra and has been set at

rest by the Hon'ble Supreme Court in a recent decision, delivered

on 28.04.2023 in case of State through Central Bureau of

Investigation Vs. Hemendhra Reddy [(2023) SCC Online SC

[2024:RJ-JP:9775] (12 of 22) [CRLMP-4934/2020]

515], wherein the Hon'ble Supreme Court after sailing through its

various previous judgments, finally held as under:-

"49. Wherever a final report forwarded by the Investigating Officer to a Magistrate under Section 173(2)(i) of the CrPC is placed before him, several situations may arise. The report may conclude that an offence appears to have been committed by a particular person and persons, and in such a case the Magistrate may either:

(1) accept the report and take cognizance of offence and issue process, (2) may disagree with the report and drop the proceeding or may take cognizance on the basis of report/material submitted by the investigation officer, (3) may direct further investigation Under Section 156(3) and require police to make a report as per Section 173(8) of the Code of Criminal Procedure.

(4) may treat the protest complaint as a complaint, and proceed Under Sections 200 and 202 of the Code of Criminal Procedure."

(Emphasis Supplied)

The Apex Court in the aforesaid judgment, also concluded

the powers of the Magistrate to issue directions for further

investigation in following term:-

"63. Thus, this Court, in conclusion, observed that, "when Section 156(3) states that a Magistrate empowered under Section 190 may order "such an investigation", such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of "investigation" contained in Section 2(h)."

64. Thus, in view of the law laid down by this Court in the various decisions cited hereinabove, it is well settled that sub section (8) of Section 173 of the CrPC permits further investigation, and even dehors any direction from the court, it is open to the police to conduct proper investigation, even after the court takes cognizance of any offence on the strength of a police report earlier submitted."

(Emphasis Supplied)

18. Apart from referring the judgment delivered in case of

Hemendhra Reddy (Supra), it would not be out of place to refer

the previous judgment of the Apex Court in case of Hasanbhai

[2024:RJ-JP:9775] (13 of 22) [CRLMP-4934/2020]

Valibhai Qureshi Vs. State of Gujarat [(2004) 5 SCC 347],

wherein the underlying object behind to proceed for further

investigation was discussed and it was held that the prime

consideration for further investigation is to arrive at the truth and

do real and substantial justice. It was held that mere fact that

there may be further delay in concluding the trial should not stand

in the way of further investigation if that help the court in arriving

at the truth and do real and substantial and effective justice.

19. In case of Vinay Tyagi Vs. Irshad Ali @ Deepak [(2013)

5 SCC 762], while dealing with the issue of further investigation

after elaborate discussion in the light of judicial precedents

expounded in various earlier judgments, the Apex Court in Paras

No.40 & 51 held as under:-

"40. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a magistrate in terms of Section 173(2) read with Section 173 and Section 156 of the Code:

40.1. The Magistrate has no power to direct 'reinvestigation' or 'fresh investigation' (de novo) in the case initiated on the basis of a police report.

40.2. A Magistrate has the power to direct 'further investigation' after filing of a police report in terms of Section 173 of the Code.

40.3 .........

40.4. Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173 cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156 and the language of Section 173 itself. In fact, such power would have to be read into the language of Section

173. 40.5. The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the Court to the extent

[2024:RJ-JP:9775] (14 of 22) [CRLMP-4934/2020]

that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own.

40.6. It has been a procedure of proprietary that the police has to seek permission of the Court to continue 'further investigation' and file supplementary chargesheet."

...........

51. We have already noticed that there is no specific embargo upon the power of the learned Magistrate to direct 'further investigation' on presentation of a report in terms of Section 173 of the Code. Any other approach or interpretation would be in contradiction to the very language of Section 173 and the scheme of the Code for giving precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such approach, particularly when in terms of Section 190 of the Code, the Magistrate is the competent authority to take cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case to the court of competent jurisdiction or to proceed with the trial himself. In other words, it is the judicial conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. It will be a travesty of justice, if the court cannot be permitted to direct 'further investigation' to clear its doubt and to order the investigating agency to further substantiate its charge sheet. The satisfaction of the learned Magistrate is a condition precedent to commencement of further proceedings before the court of competent jurisdiction. Whether the Magistrate should direct 'further investigation' or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct 'further investigation' or 'reinvestigation' as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, re-investigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation. In this regard, we may refer to the observations made by this Court in the case of Sivanmoorthy Vs. State represented by Inspector of Police [(2010) 12 SCC 29].

(Emphasis Supplied)

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20. In case of Vinubhai Haribhai Malaviya Vs. State of

Gujarat [(2019) 17 SCC 1], the Apex Court again extensively

discussed the evasive issue of further investigation, more

particularly in respect of the jurisdiction of the Magistrate to issue

directions for further investigation. It would be apposite to

reproduce Para No.38 of the judgment, wherein the jurisdiction &

powers of the Magistrate to issue directions for further

investigation was highlighted:-

"To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) of Act to further investigate an offence till charges were framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person was not wrongly arraigned as an Accused or that a prima facie guilty person is not so left out. There was no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers were traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the Code of Criminal Procedure, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered was within the discretion of the Magistrate who would exercise such discretion on the facts of each case and in accordance with law. It was also clarified that, "The investigation spoken of in Section 156(3) would embrace the entire process, which begins with the collection of evidence and continue until charges are framed by the Court, at which stage the trial can be said to have begun."

(Emphasis Supplied)

21. At the cost of repetition and in the light of afore-referred

judgments of the Apex Court, the legal position remains no more

res integra about powers and jurisdiction of the Magistrate to

issue directions for further investigation. Such powers can be

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exercised suo moto as well. Therefore, argument put forth by the

counsel for petitioner, in this regard as noted in Para Nos.3 & 4, is

wholly misplaced, rather can be held as misleading and wholly

converse to the settled proposition of law. Hence, such an

argument made by the counsel for petitioner forcefully, is

deprecated, being against the settled proposition of law, and is

hereby rejected. It is hereby observed that the Special Judge,

acted well within its powers and jurisdiction to issue suo moto

directions to the ACB for further investigation in the matter,

mainly on the point of find out the truth about role of Sh.

Bannaram Meena, Chairman of the Alwar Dairy, against whom

allegation was made in the complaint.

22. In respect of issuing another direction by the Special Judge

to place the matter of refusal of prosecution sanction against

petitioner-Chetram, before the higher Authorities of Dairy

Federation, or higher officials of the State Government, at the

outset, it is noteworthy that in this regard, the Special Judge with

the assistance & concurrence of the Public Prosecutor appearing

for ACB, opined that, when prosecution sanction is refused by the

Authority, the jurisdiction lies with the Reviewing Authority to

reconsider the issue and the Reviewing Authority may grant

prosecution sanction, if deems it necessary & justified after

considering the new & additional facts, coupled with the entire

conspectus of events. Thus, the Special Judge concluded that

when the ACB moved application for re-consideration of the issue

of refusal of the prosecution sanction, it was desirable and

necessary for the management body of the Alwar Dairy, to place

the application before the higher Authorities of Dairy Federation or

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State Government, to reconsider the issue that whether refusal of

grant of prosecution sanction is justified or the sanction for

prosecution may be granted.

In the present case, the prosecution sanction has been

refused twice, on behalf of the Alwar Dairy Management, in the

meeting of its Board of Directors, but both times, the meeting held

under the president-ship of Sh. Bannaram Meena, the then

Chairman of the Alwar Dairy. Needless to reiterate that the role of

Sh. Bannaram Meena too was found suspicious by the ACB, in the

light of allegations, made in the written complaint by complainant-

Tej Singh and ACB postponed investigation against Sh. Bannaram

Meena, but never placed on record the final investigation report

against him. Thus, the refusal of prosecution sanction by Sh.

Bannaram Meena, in the same matter against accused-Chetram is

not liable to be approved. Moreover, the twin ground for refusal of

prosecution sanction, as indicated in minutes of meeting of Board

of Directors under the president-ship of Sh. Bannaram Meena,

may not be countenanced, in a red handed trap case of ACB.

23. As far as petitioner-Chetram is concerned, the ACB seized

the transcript conversations between complainant Tej Singh and

petitioner Chetram, putting a demand of Rs.50,000/- and settling

the demand @ Rs.45,000/-. Further, in the red handed trap, this

amount of gratification was seized and petitioner-Chetram was

arrested on the spot. The ACB, after thorough investigation in the

matter, found the petitioner-Chetram to be prima facie guilty for

offences under Sections 7, 13(1)(d) and 13(2) of the PC Act &

Section 120-B IPC, but because he is a public servant and have an

umbrella of protection of mandate of Section 19 of the PC Act, so

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it was incumbent for the ACB to seek prosecution sanction,

however, for one or another reason, discussed hereinabove,

sanction was rejected by the Management of Alwar Dairy. ACB

moved application for re-consideration, but same too was

rejected. Then only, ACB filed the application under Section 169

Cr.PC. It is not a case, where the ACB found no sufficient evidence

against the Chetram, to prosecute him for the allegations of

corruption charges. Hence, considering the entire facts and

circumstances, the learned Special Judge didn't think it proper to

release the accused-Chetram merely on the ground of refusal of

prosecution sanction, that too, on arbitrary reasonings, rather

issued direction to place the matter before the higher Authorities

including the C.M.D, Rajasthan Cooperative Dairy Federation,

Jaipur or other higher officials representing the State Government

to reconsider the refusal of prosecution sanction. Such specific

directions have been issued, more particularly, when both times,

sanction was rejected in the meeting held under the president-

ship of Sh. Bannaram Meena, the then Chairman of the Alwar

Dairy, whose role itself was found to be suspicious by ACB and

against whom investigation was not completed. In such peculiar

facts and circumstances, it may not be held that the Special Judge

acted arbitrarily, illegally or in access of its jurisdiction, dehors to

its powers or against the mandate of law.

24. It is noteworthy that although from the side of ACB

application under Section 169 Cr.PC was moved to

discharge/release the petitioner Chetram, on account of refusal of

the prosecution sanction, but after rejection of its application and

issuance of directions by the Special Judge to place the matter

[2024:RJ-JP:9775] (19 of 22) [CRLMP-4934/2020]

before the higher officials to reconsider the refusal of prosecution

sanction so also to proceed for further investigation, the ACB has

not come forward, to assail the order impugned dated 25.04.2019.

The same leads to an inference that the ACB, the Investigation

Agency, is inclined to proceed in the matter, in furtherance to the

directions/observations made by the Special Judge in the order

dated 25.04.2019 and is not interested to pursue its application

under Section 169 Cr.PC. The petitioner-accused cannot be

allowed to press the application filed by ACB and to challenge the

order of dismissal.

25. In case of Dharam Pal (Supra), relied upon by counsel for

petitioner, the issue before the Apex Court was in respect of

jurisdiction of the Sessions Court to take cognizance of offence

against the accused persons before the stage of Section 319

Cr.PC, dehors the Police report and that too before the case was

committed to the Sessions Court under Section 209 Cr.PC.

The ratio of judgment does not render any help to the case

of petitioner.

26. In case of Reeta Nag (Supra), relied upon by the counsel

for petitioner, the jurisdiction of the Magistrate to issue directions

for further investigation was considered, where the Magistrate has

passed a final order of framing charges against six persons and

discharged other accused persons. In that context, it was held

that the Magistrate had no jurisdiction to recall his order, in the

guise of issuing directions for further investigation under Section

173(8) Cr.PC.

Firstly, the ratio of law expounded in the said judgment does

not apply to facts of the present case, since in the case at hand,

[2024:RJ-JP:9775] (20 of 22) [CRLMP-4934/2020]

the powers for further investigation has been exercised by the

Special Judge, at the initial stage, of filing charge-sheet against

Dhanni Ram Yadav and petitioner-Chetram was sought to be

discharged and released. Secondly, such ratio of law does not hold

the field as in case of Hemendhra Reddy (Supra), the Apex

Court held as under:-

"Thus, a conspectus of the aforesaid decisions of this Court rendered in cases where final reports (closure reports) had already been submitted and accepted makes the position of law very clear that even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the CrPC after the final report submitted under Section 173(2) of the CrPC has been accepted. It is also evident, that prior to carrying out a further investigation under Section 173(8) of the CrPC, it is not necessary for the Magistrate to review or recall the order accepting the final report."

27. In case of Amrutbhai Shambhubhai Patel (Supra), the

relative scope of issuing directions by the Magistrate for further

investigation under Section 202 Cr.PC and Sectoin 173(8) CrPC

was discussed. It was held that directions for investigation under

Section 202 Cr.PC is altogether in different in nature than the

further investigation as contemplated under Section 173(8) Cr.PC.

There is no quarrel about the ratio decidendi of such

judgment, however, the same does not render any support to the

case of petitioner, while challenging the order impugned.

28. In case of Krishna Pati Tripathi (Supra), the High Court of

Madhya Pradesh considered the issue that when the Magistrate

has taken cognizance on the complaint under Section 190 Cr.PC,

being satisfied with the material available on record, to prosecute

[2024:RJ-JP:9775] (21 of 22) [CRLMP-4934/2020]

the accused person, it is not open for the Magistrate to direct for

further investigation suo moto or even on application by any

person. Such powers of further investigation were observed to be

wholly different from the jurisdiction of the Magistrate, to direct

further investigation under Section 156(3) Cr.PC before the stage

of taking cognizance.

The ratio of the judgment is that once the cognizance is

taken, the Magistrate cannot direct for further investigation. Such

proposition of law deals with the entire different set of facts, which

are not involved in the present case.

29. In case of Prahlad Sharma (Supra), the issue before the

Coordinate Bench of the Rajasthan High Court, was that the Court

proceeded to take cognizance, ignoring the mandate of Section 19

of the PC Act. Hence, in absence of grant of prosecution sanction,

order of cognizance was set aside and accused petitioners were

discharged.

In the case at hand, the stage of taking cognizance has not

come yet, since the issue qua petitioner has been remanded for

re-consideration in respect of refusal of prosecution sanction

against him.

30. In the light of afore-referred discussions, this Court is of

considered opinion that the impugned order dated 25.04.2019

falls well within jurisdiction of the Special Judge and stands within

bounds of law. In case, the order impugned is quashed, rather the

same would lead to failure of justice. There are serious allegations

of corruption against petitioner Chetram, which have been found

prima facie proved by the ACB during course of investigation.

However, because petitioner is a public servant and procurement

[2024:RJ-JP:9775] (22 of 22) [CRLMP-4934/2020]

of prosecution sanction is essential, which has arbitrarily and

malevolently been refused, therefore, for ends of justice, matter

has been directed to be placed before the reviewing Authority for

re-consideration, on the application of ACB.

31. This Court has concurrence with the view of learned Special

Judge, that in such facts and circumstances, the refusal of

prosecution sanction by the Management of Alwar Dairy, against

the petitioner, obviously requires re-consideration by the

Reviewing Authority. The ACB has not come forward to challenge

the order impugned, therefore, a natural corollary is that the ACB

is agreeable to abide by directions of the Special Judge. Looking to

overall circumstances and for ends of justice, this Court affirms

the order impugned dated 25.04.2019. The concerned Special

Judge, Prevention of Corruption Cases, Alwar, deserves

appreciation and commendation, for applying such an erudite

judicious approach in this matter and this Court does that.

32. As a final result, the present criminal misc. petition is hereby

dismissed. Consequently, interim stay order dated 15.12.2021

stands vacated.

33. Stay application and other pending application(s), if any,

stand(s) disposed of.

34. A copy of this judgment be forwarded to Anti Corruption

Bureau, Jaipur, to proceed further in the matter.

(SUDESH BANSAL),J

Sachin

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