@JUDGMENTTAG-ORDER
K.N. Keshavanarayana. J.
1. In these five criminal petitions filed u/s 482 of Code of Criminal Procedure, the respective Petitioners have sought for quashing the common order dated 26.02.2011 passed by the XXIII Additional City Civil and Sessions Judge, Bangalore City (CCH-24) (Special Court for Lokayuktha Cases) in PCR: Nos. 2 to 6/2011, whereby the learned Judge has taken cognizance of various offences alleged in the respective complaints and also have sought for quashing all further consequential proceedings in the respective cases.
2. The common Respondent in all these petitions Sri. Sirajin Basha is the common complainant in. PCR Nos. 2 to 6/2011. He presented five private complaints u/s 200 of Code of Criminal Procedure before the Special Judge alleging offences under Sections 405, 406, 420, 463, 465, 468, and 471 of Indian Penal Code, 1860 and Section 13(1)(d), 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988 (for short ''PC Act'') and Sections 3 & 4 of the Karnataka Land (Restriction on Transfer) Act, 1991 r/w. Section 120B of Indian Penal Code, 1860.
3. Sri. B.S. Yeddyurappa the Chief Minister of Karnataka State, is named as Accused No. 1 in all these private complaints. B.Y. Vijayendra and Sri. B.Y. Raghavendra, sons of Sri. B.S. Yeddyurappa have been named as Accused Nos. 2 & 3 in their individual capacity in PCR Nos. 2 & 5/2011. Sri. R.N. Sohan Kumar, the son-in-law of B.S. Yeddyurappa has been named in his individual capacity as Accused No. 4 in PCR Nos. 2, 5 & 6/2011. M/s. Davalagiri Property Developers Pvt. Ltd., represented by its Directors, Sri. B.Y. Vijayendra, Sri. B.Y. Raghavendra and Sri. R.N. Sohan Kumar have been named as Accused No. 6 in PCR No. 2/11 and Accused No. 2 in PCR Nos. 4 & 6/2011. Sri, N. Krishnaiah Setty. a sitting Member of Karnataka State Legislative Assembly has been named as Accused No. 5 in PCR. No. 2 & 5/2011 and Accused No. 4 in PCR No. 4/2011. There are few other individuals, Companies/Institutions named as Accused in PCR. Nos. 3, 4, 5 & 6/2011. It is not necessary to note their names here. Sri. B.Y. Raghavendra, who is named as Accused No. 3 in PCR Nos. 2 & 5/2011 is a sitting Member of Parliament. In all these private complaints, the primary allegation is that the person named as Accused No. I being a public servant in the capacity as the Chief Minister of the State has made use of his power and position to secure illegal pecuniary gain to his kith and kin and thereby flouted all the rules, Regulations and settled procedures, causing irreparable damage to the exchequer of the State.
4. In each of these complaints, several instances have been cited which according to the common complainant reflects clear criminal nexus between the accused persons and those instances reveal classic cases of cheating, criminal breach of trust, criminal conspiracy, abuse of official position, loss to the exchequer of the State, securing of illegal monetary gain for the kith and kin by high ranking public servants.
5. On presentation of complaints, even before the learned Judge could form an opinion "as to whether or not cognizance can be taken, it appears in each of these private complaints, one or the other person named as accused, appeared before the Court through their advocates and filed applications under Sections 210 and 319 of Code of Criminal Procedure Those applications were opposed by the complainant and the participation of the persons named as accused in the proceedings even before cognizance could be taken and process is ordered, was seriously opposed by the common complainant. The learned Judge by his common order dated 26.02.2011, which is impugned in these petitions held that the persons named as accused who have sought to participate in the proceedings even before the Court could formulate an'' opinion as to whether cognizance should be taken or not and even before process is ordered, have No. right to participate in the proceedings and file any applications. In that view of the matter, the learned Judge, dismissed all those applications.. Further by the very same order, the learned Judge took cognizance of the offences alleged in the respective complaints and posted all the cases for recording sworn statements of the complainant. In PCR No. 2/2011, the learned Judge after recording sworn statement of the complainant and one witness on behalf of the complainant, by order dated 24.03.2011 in exercise, of his power under Sub-section (1) of Section 202 of Code of Criminal Procedure postponed the issue of process against the persons who have been arraigned as accused on the ground that the statement made by the complainant and one witness on oath are not sufficient to issue process against any or all of them. He was of the opinion that to satisfy himself as to whether or not there is sufficient ground to proceed further in the matter, it is necessary to direct enquiry as contemplated u/s 202(1) of Code of Criminal Procedure and consequently directed the Superintendent of Police, City Division, Karnataka Lokayuktha, Bangalore to hold enquiry and submit report. In these petitions; the respective Petitioners have sought for quashing the common order taking cognizance of the offences alleged in complaints filed in PCR Nos. 2 to 6 and further order directing enquiry u/s 202 of Code of Criminal Procedure in PCR No. 2/2011.
6. Sri. R.N. Sohan Kumar, who has been arraigned as Accused No. 4 in PCR Nos. 2, 5, & 6 is the sole Petitioner, in Criminal Petition Nos. 2083/2011.2163/2011 and 2164/2011 filed in relation to PCR Nos. 2. 5 & 6/2011 respectively), Smt. Akkammahadevi, named as Accused No. 2 in PCR No. 3/2011 is the sole Petitioner in Criminal Petition No. 2161/2011 filed in relation to PCR No. 3/2011. M/s. Davalagiri Property Developers Pvt. Ltd., named as Accused No. 6 in PCR No. 2/2011 and Accused No. 6 in PCR Nos. 4 & 6/2011, represented by its Directors, Sri. R.N. Sohan Kumar, is the sole Petitioner in Criminal Petition No. 2162/2011 filed in relation to PCR No. 4/2011.
7. The common grounds urged in all these criminal petitions are that the order taking cognizance passed by the learned Special Judge is illegal and suffers from non-application of judicious mind inasmuch as the learned Judge has taken cognizance for the offences for which No. sanction has been accorded by the Governor and that the learned Special Judge during the course of the order has not referred to the purport of the sanction accorded by the Governor; that the impugned order has been passed without arriving at a conclusion as to whether the allegations made in the complaint would attract the ingredients of any of the offences for which cognizance was taken, as such, the order impugned is bald, unreasoned and a non-speaking order, as such, it is liable to be set aside; that the learned Special Judge is not. justified in dismissing the applications filed under Sections 210 and 319 of Code of Criminal Procedure and in this regard, the learned Special Judge has failed to consider that even if the Petitioners had No. locus-standi to file such applications as the persons arraigned as accused but as members of general public they had every ''right to bring it to the notice of the Court circumstances warranting action as per those sections, therefore, the order rejecting those applications is bad in law; that the learned Special Judge has failed to notice that the complainant after obtaining one sanction order mischievously misusing the sanction order has filed several complaints mentioning the offences for which No. sanction is accorded, as such, the order impugned is bad in law.
8. I have heard Sri. B.V. Acharya, Sri. Ravi B. Naik and Sri. C.V. Nagesh, all Senior Counsels, who appeared on behalf of the Petitioners and Sri. C.H. Hanumantharaya as well as Hashmath Pasha, learned Counsels appearing for the Respondent -- complainant.
9. Sri. B.V. Acharya, learned Senior Counsel would urge the following points in support of the petition in Criminal Petition No. 2083/2011 [In relation to PCR No. 2/2011]
10. The order impugned in these petitions suffer from non-application of mind by the, learned Judge and this is evident from the fact that he proceeded to take cognizance for all the offences alleged in the complaints though sanction accorded by the Governor to prosecute the person named as Accused No. 1 u/s 197 of Code of Criminal Procedure was only for the offence u/s 405 of Code of Criminal Procedure, whereas in the complaint several other offences for which No. sanction had been accorded have also been alleged, therefore, the learned Special Judge could not have taken cognizance of those offences for which there was No. sanction; in the complaint/petition filed in PCR No. 2/2011, it has been specifically averred that Accused Nos. 3 and 5 are also public servants, but No. sanction is obtained in respect of those two accused, as such, the cognizance taken against Accused Nos. 3. and 5 in the absence of sanction as contemplated u/s 197 of Code of Criminal Procedure and Section 19(1) of the P.C. Act, is bad in law; Section 405 of Indian Penal Code, 1860 for which the Governor has accorded sanction is not an offence, but it only defines an offence, as such- the sanction accorded by the Governor for the offence u/s 405 of Indian Penal Code, 1860., cannot be construed as a sanction granted for the offences alleged in Para-7 of the complaint even against Accused No. 1 and these aspects have not been considered by the learned Special Judge at the time of passing the order for taking cognizance, as such, the impugned order is bad in law and suffers from non-application of mind, therefore, it is liable to be set aside; as the other accused persons have been lugged in on the basis of the alleged conspiracy, they have a right to question the order of taking cognizance by indicating the legal infirmities, as such, these petitions filed by persons arraigned as accused, who are not public servants, are maintainable; the further orders passed by the learned Special Judge directing inquiry/investigation by Lokayuktha police also suffers from non-application of mind and since the, very order taking cognizance is bad in law, further orders passed thereon also suffers from illegality. In support of these submissions, he placed reliance on the several decisions.
11. Sri C.V. Nagesh, learned Senior Counsel would urge the following points in support of the Criminal Petition No. 2161/2011 (In relation to PCR No. 3/2011). There is total non-application of mind by the learned Special Judge not only while taking cognizance, but also while passing further orders; a proper sanction u/s 197 of Code of Criminal Procedure for prosecuting the public servant is a requisite precondition and since the allegations in the complaint demonstrably indicates that the alleged acts are in discharge of duties as a public servant by the person arraigned as accused No. 1, the learned Special Judge could not have taken cognizance of any of the offences under the Indian Penal Code alleged in the complaints, since the sanction accorded by the Governor u/s 197 of Code of Criminal Procedure was only for the offence u/s 405 of Indian Penal Code, 1860 and not for any other offences; in the course of the further order dated 24.03.2011 passed in PCR No. 2/20.11, the learned judge in exercise of power u/s 202(1) of Code of Criminal Procedure has directed an enquiry by the police, whereas the enquiry contemplated u/s 202(1) of Code of Criminal Procedure is by the judge himself and he could not delegate the same to any other authority including the police, therefore, directing an enquiry to be held by Lokayuktha Police u/s 202 (1) Code of Criminal Procedure is bad in law and this would demonstrate non-application of mind by the learned Judge.
13. Sri, Ravi B. Naik, learned Senior Counsel, would urge the following points:
In the proposed complaint produced before the Governor, there were only 12 accused, whereas five complaints have been filed in all against 37 persons, thus after obtaining one sanction order, the complainant has filed several complaints; the allegations made in the complaint filed before the Court are different from the allegations made in the proposed complaint submitted to the Governor, therefore, the allegations now made in the complaint were not placed before the Governor, who is the sanctioning authority, as such, the sanctioning authority has not applied its mind to all the materials now placed before the Court; reading of sanction order passed by the Governor indicates that the Governor had taken the role of an investigator; Section 210 of Code of Criminal Procedure though is not restricted to any particular kinds of person, the learned Judge has refused to hear the applicant on the application filed u/s 210 of Code of Criminal Procedure, as such, the order rejecting the said application is had In law and, in this regard, reliance was placed on the decisions reported in 1983 (3) SCC 42; Dismissal: of the application u/s 319 is contrary to the decision in the case of (2009) 6 SCC 661 and (2008) 17 SCC 157; in the entire order of the learned Special Judge, there is No. reference as to the purport of the sanction order, therefore, reference to Lokayuktha Police for enquiry or investigation is bad in law. Therefore, the learned Senior Counsel sought for quashing the order taking cognizance of the offences and to dismiss the complaints by allowing these petitions.
14. On the other hand, Sri. C.H-. Hanumantharaya, learned Counsel appearing for the Respondent/complainant would urge the following points:
The Petitioners against whom No. order for issue of process in terms of Section 204 of Code of Criminal Procedure has been made, have No. locus-standi to question the validity of the order taking cognizance or the further proceedings thereon as long as process is not issued, as such, these Petitioners have No. locus-standi to present these petitions, therefore, the petitions are liable to be dismissed without going into the merits of the petitions; Presentation of the complaint before the jurisdictional Court was preceded by lodging of a complaint before the Lokayuktha police both in person and through registered post and since there was No. response from Lokayuktha Police, the complainant approached the Governor with a representation along with a copy of the proposed complaint as also number of documents in respect of 15 instances of crimes and sought sanction for prosecution of the Chief Minister and on consideration of these materials, the Governor of Karnataka accorded sanction on 20.01.2011; the sanction accorded is only to prosecute the person named as Accused No. 1 and the question as to which sections of the penal code or other enactment gets attracted to the matter, is left to be decided by the Court; the substratum of the allegations made in the complaint before the Court and also the proposed complaint before the Governor are same, therefore, the order of sanction accorded by the Governor does not suffer from any illegality or irregularity; As the sanction accorded by the Governor relate to 15 instances stated in the proposed complaint, filing of 5 complaints by splitting three offences falling within the period of one year into one complaint in the light of Section 219 of Code of Criminal Procedure, cannot be found fault with, as such, the act of filing 5 complaints is justified; the manner in which the proceedings went on before the learned Special Judge from the date of presentation of the complaint up to the date of the order impugned and the fact. that, one of the person named as accused in each of these complaints sought to participate in the proceedings even at that stage by filing applications and the arguments advanced thereon would clearly indicate the application of judicious mind by the learned Judge before taking cognizance, as such, the order of taking cognizance does not suffer from non-application of mind; the further order passed in PCR No. 2/2011 directing inquiry/investigation by the Lokayuktha police in exercise of power u/s 202 of Code of Criminal Procedure, is in accordance with law and the Petitioners have No. locus-standi to question the legality of the said order, since they have not been summoned by issuing process. Learned Counsel places reliance on several decisions of the Apex Court and of this Court in support of his contentions, which would be referred to during the course of this order. He also submitted that the scope of inquiry/ investigation u/s 202 of Code of Criminal Procedure is limited and the scope of such enquiry is only for the limited purpose of finding out whether or not there is sufficient ground for proceeding, therefore, there is No. infirmity in the further order passed by the learned Special Judge directing an investigation by the Lokayuktha Police; In PCR Nos. 3 to 6/2011 No. further orders are passed as the learned Special Judge has not even recorded the sworn statement of the complainant on oath as required by law, therefore, the challenge to the proceedings in these complaints is highly premature.
15. Sri. Hashmath Pasha, learned Counsel, would urge the following points:
The authority according sanction is not required to mention the details of the provisions for which the persons accused of, is to be prosecuted and if the authority on the basis of the materials produced before him is satisfied, that would be sufficient to render the sanction valid: Sanction u/s 197 of Code of Criminal Procedure is not absolute requirement and it depends upon the manner in which the offence alleged was committed, as such, even in the absence of sanction under. Section 197 of Code of Criminal Procedure, the proceedings cannot be quashed at the thresh-hold; though sanetion is accorded for the offence u/s 405 of Indian Penal Code, 1860, person arraigned as accused No. 1 can be prosecuted for other offences alleged in the complaint falling u/s 405 of Indian Penal Code, 1860 and for other offences No. sanction is required; the Sanction accorded by the governor fulfills all the requirements of Section 19(3) of P.C. Act and Section 197 of Code of Criminal Procedure,; the impugned order taking cognizance is not a cryptic order and is a well-considered one; the object of filing applications under Sections 210 and 319 Code of Criminal Procedure was only to stall the proceedings and No. material is produced to show that rival investigation was under progress as contemplated u/s 210 of Code of Criminal Procedure; filing of applications by the persons named as accused made the learned Judge to look into the facts and his attention had been drawn to the entire matter, thus, there is clear indication of application of judicious mind by the learned Judge and this is further fortified by the action taken by the learned Special Judge on the applications filed by the persons named as accused; persons arraigned as accused Nos. 3 & 5 being Members of Parliament and of Legislative Assembly respectively are public servants and since there is No. authority who could remove the sitting members of the Parliament and of Legislative Assembly, the provisions of Section 19(1) of P.C. Act are. not applicable to such persons, as such, the cognizance taken in the absence of any sanction u/s 19 (1) of P.C. Act and 197 of Code of Criminal Procedure, to prosecute them cannot be found fault with; assuming that Sanction u/s 19 (1) of P.C. Act was necessary even in respect of persons arraigned as accused Nos. 3 and 5, who are members of Parliament and of Legislative Assembly respectively, in the light of the provisions of Sub-section (3) of Section 19 of P.C. Act, the rigor of Section 19(1) is diluted and unless it is shown to the Court that failure of justice in fact has been occasioned, the proceedings cannot be annulled, therefore, at the thresh-hold, the prosecution cannot be quashed for want of sanction u/s 19 of the P.C. Act, as such, the decision of the Hon''ble Supreme Court in the case of R.S. Nayak v. A.R. Antulay AIR 1984 SC. 684 rendered in the light of the provisions of the P.C. Act 1947 has No. application to the cases falling under the provisions of P.C. Act, 1988; as the Petitioners who have approached this Court are not public servants, and the persons named as Accused Nos. 1, 3 & 5 in PCR No. 2/2011 being public servants have not complained of frivolous or false prosecution, there is No. circumstance warranting exercise of inherent power saved u/s 482 of Code of Criminal Procedure: the word ''perused'' used in the impugned order would clearly indicate the application of mind by the learned Special Judge, therefore, there are No. grounds to quash the proceedings. Learned Counsel places reliance on several decisions in support of his various contentions. In the light of these submissions, the learned Counsel sought for dismissal of the petitions mainly on the ground of locus-standi of the Petitioners to seek the relief sought in these petitions.
16. In the light of the submissions made on both sides, the points that arises for my consideration are
i) Whether the order impugned in these petitions passed by the learned Special Judge taking cognizance suffers from illegality or irregularity warranting quashing of the order in exercise of inherent powers of this Court.
ii) Whether the person named as accused in a private complaint filed u/s 200 of Code of Criminal Procedure, has locus-standi to question the order taking cognizance and further orders passed thereon as long as process is not issued in terms of Section 204 of Code of Criminal Procedure
17. Now by catena of decisions of the Supreme Court, the principles relating to exercise of inherent powers by the High Court, which is saved u/s 482 of Code of Criminal Procedure to quash the complaint or criminal proceedings are well-settled. In a recent decision, in the case of Subrata Das v. State of Jharkhand (2010) 10 SCC 798, the Hon''ble Supreme Court has held thus in Para-6:
It is fairly well settled by a long line of decisions rendered by this Court that the power vested in the High Court u/s 482 of Code of Criminal Procedure can be invoked for quashing an ongoing investigation, complaint or other proceedings only in cases where either there is legal power (sick bar) to the continuance of the proceedings such as the absence of a sanction wherever required or where averments made in the complaint or first information report even if accepted on their face value do not constitute an offence or where there is No. legal evidence to support the charge made against the accused. It is also fairly settled that the powers vested in the High Court u/s 482 Code of Criminal Procedure have to be exercised sparingly and that the Court cannot be called upon to appreciate the available evidence or material with a view to find out whether the charge levelled against the accused stands proved.
18. In State of Andhra Pradesh v. Golkanda Rangaswamy (2004) 6 SCC 522, the Apex Court has observed thus in Paras - 5 & 8:
5. Exercise of power u/s 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court, it only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely: (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No. legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express-provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a ''wrong in course of administration of justice on the principle qaando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything; it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When No. offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
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8. As noted above, the powers possessed by the High Court u/s 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest court of a State should normally refrain from giving a prime facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the. Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. of course, No. hard and fast rule can be laid down in regard to cases in which the High Court will excercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See Janata Dal -v. H.S. Chowdhary and Raghubir Saran (Dr.) v. State of Bihar). It would not be proper for the High Court to analyze the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where oppressive. If the allegations set out in the compliant do not constitute the offence of which cognisance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers u/s 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is No. material to show that the complaint/FIR is mala fide, frivolous or vexations, in that event there would be No. justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant wold be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of No. consequence and cannot be themselves be the basis for quashing the proceeding. (See Dhanalakshmi v. R. Prasanna Kumar, State of Kerala v. O.C. Kuttan, State of U.P. v. O.P. Sharma, Rashmi Kumar v. State of Kerala v. Mahesh Kumar Bhada, Satvinder Kaur v. State (Govt. of NCT of Delhi), Rajesh Bajaj v. State NCT of Delhi and State of Karnataka v. M. Devendrappa).
19. In Fakhruddin Ahmad v. State of Uttaranchal and Anr. (2008) 17 SCC 157, the Apex Court considering the scope and ambit of the powers of the High Court u/s 482 of Code of Criminal Procedure, has held thus in Para-20:
So far as the scope and ambit of the powers of the High Court u/s 482 of the Code is concerned, the same has been enunciated and reiterated by this Court in a catena of decisions and illustrative circumstances under which the High Court can exercise jurisdiction in quashing the proceedings have been enumerated. However, for the sake of brevity, we do not propose to make reference to the decisions on the point. It would suffice to state that though the powers possessed by the High Court under the said provision are very wide but these should be exercised in appropriate cases, ex debita jusitiae to do real and substantial justice for the administration of which alone the courts exist. The inherent powers possessed by the High Court are to be exercised very carefully and with great caution so that a legitimate prosecution is not stifled. Nevertheless, where the High Court is convinced that the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prime facie constitute any offence or make out a case against the accused or where the allegations made in the FIR or the compliant are so absurd and inherently improbable on the basis of which No. prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, the powers of the High Court under the said provision should be exercised.
20. Though several provisions contained in Chapter XIV of the Code uses the word ''cognizance'', the said word has not been defined in the Code. The expression ''taking cognizance'' has been the subject matter of judicial interpretation in many decisions of the Apex Court and this Court.
21. In R.R. Chari v. State of U.P. AIR 1951 SC 207 it was observed that,
...''taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence''.
22. In
Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint, or on a police report or upon information of a person other than a police officer.
23. In
It was further observed that, "there is No. special charm or any magical formula in the expression "taking cognizance" which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action.
It was also observed that "what Section 190 contemplates is that the Magistrate, takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations.
24. In Kishun Singh v. State of Bihar (1993) 2 SCC 16, it has been held that,
when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence, decides to initiate judicial proceedings against the alleged offender, he is said to have taken cognizance of the offence.
25. In State of West Bengal v. Mohd. Khalid (1995) 1 SCC 684 the Apex Court -after taking note of the fact that the expression "taking cognizance" has not been defined in the Code has held thus in para 43,
In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word ''cognizance'' indicates the point when a Magistrate or a Judge first, takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings: rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge, Cognizance is taken of cases and not of persons.
26. After referring to all the above decisions, the Apex Court in the case of State of Karnataka and Anr. v. Pastor P. Raju (2006) 6 SCC 728 has observed thus in para -13.
13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received, from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.
27. From the above principles it is clear that, taking cognizance of the offences alleged on application of judicious mind is a condition precedent for proceeding with the criminal prosecution against any. person, and as a corollary if cognizance of the offence is not taken in accordance with law, certainly criminal prosecution cannot be proceeded with.
28. In Devendra v. State of U.P. (2009) 7 SCC 495, it has been held that It is obligatory on the part of the Magistrate to apply his mind to the contents of the charge sheet, and such application of mind on his part should be reflected in the order.
29. Bearing in mind the principles laid down in the above decisions, let me proceed to consider the questions raised.
30. As rightly contended by Sri. Hashmath Pasha, learned Counsel for the Respondent/complainant, in these petitions, quashing of the complaints has not been sought on the ground that the allegations made therein does not constitute any offence nor on the ground that the complaints are frivolous or baseless only to tarnish the image of the persons arraigned as accused with a view to wreak vengeance or to achieve political ends. The challenge on the other hand is on the ground that the cognizance has been taken for the offences under Indian Penal Code for which No. sanction has been accorded though sought, It is also the contention of the Petitioners that the facts that the sanction for prosecuting the person arraigned as Accused No. 1. is accorded only for the offence u/s 405 of Indian Penal Code, 1860 and for the offences under the P.C. Act while in respect of two other public servants, No. sanction is obtained, have not been taken into consideration by the learned Special Judge at the time of taking cognizance, as such, there is total non-application of mind by the learned Judge. Thus insofar as the complaint against the person arraigned as Accused No. 1, it is not a case of No. sanction. However, insofar as the complaint against the other two persons who are public servants as Members of Parliament and of Legislative Assembly, the contention is that in the absence of a valid sanction, the Court had No. jurisdiction to take cognizance. It is necessary to note at this stage that the challenge in these petitions on the above grounds is not by those public servants but other persons arraigned as accused. As, these Petitioners are sought to be proceeded with on the premise of criminal conspiracy between them and the person arraigned as Accused No. 1 occupying the post of the Chief Minister of the State, it cannot be said that the Petitioners have No. right to present these petitions.
31. Perusal of the copy of the private complaints presented before the Special Judge produced along with these petitions would indicate that there are specific averments in the complaints that His Excellency, the Governor of Karnataka, has accorded sanction under the provisions of Section 197 of Code of Criminal Procedure, and Section 19(1) of the P.C. Act to prosecute the person arraigned as Accused No. 1 who is at present the Chief Minister of the State of Karnataka. It is also specifically stated that the sanction order dated 21.10.2011 issued by His Excellency, the Governor of Karnataka, is enclosed. Thus, there was No. embargo on the part of the Special Judge for taking cognizance in respect of the offences under the P.C. Act. The competent authority has accorded sanction u/s 19(1) of the P.C. Act to prosecute the person arraigned as Accused No. 1. With regard to the offence under the Indian Penal Code also, the competent authority has accorded sanction u/s 197 of Code of Criminal Procedure, to prosecute the person arraigned as Accused No. 1 for the offence u/s 405 of Indian Penal Code, 1860, No. doubt Section 405 of Indian Penal Code, 1860 only defines the offence of "criminal breach of trust" and it is not a punishing section. Section 406 of Indian Penal Code, 1860 is the punishing section for the criminal breach of trust. As could be seen from the order impugned in these petitions, the learned Special Judge has taken cognizance of the offences alleged in the complaints. In the private complaints, the common complainant has alleged commission of offences punishable under Sections 406. 420, 463, 465, 468, 471 and 120 (B) of Indian Penal Code, 1860. The argument on behalf of the Petitioners in this regard, as noticed supra, is that the sanction is accorded u/s 197 of Code of Criminal Procedure only for the offence u/s 405 of Indian Penal Code, 1860 and not for any other offences, as such the cognizance taken for other offences under Indian Penal Code, 1860 is without jurisdiction.
32. In the case of
43. The question relating to the need of sanction u/s 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein. This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage,
In the same decision (P.S. Badal), their, Lordships at Para-49 have observed thus:
Mere non-description of the dffences in detail is really not material. At the stage of framing charge it can be urged that No. offence is made out,
At Para-52 of the said decision (P.S. Badal), their Lordships have observed thus:
The sanctioning authority is not required to separately specify each of the offence against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority, materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalised guidelines in that regard.
(underlining is mine)
Further, in Para 55 of the said case (P.S. Badal), their Lordships have observed thus:
The offence of cheating u/s 420 or for that matter offences relatable to Sections 467, 468, 471 and. 120B can by No. stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence.
33. in. State of U.P. v. Paras Nath Singh AIR 2609 SCW 3712, the Apex Court, while considering the argument that for offences under Sections 406, 409 r/w. Section 120(B) of Indian Penal Code, 1860, sanction u/s 197 of the Code is a condition precedent for launching prosecution, has termed said contention as fallacious. The relevant observations are found in Paras- 10 to 12, which read thus:
10. That apart, the contention of the Respondent that for the offences under Sections 406 and 409 r/w. Section 120-B of Indian Penal Code, 1860 sanction u/s 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the legal position in
As far as the offence of criminal conspiracy punishable u/s 120-B r/w. Section 409, Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly. it is into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction u/s 197 of the Code of Criminal Procedure is, therefore No. bar.
11. Above views are reiterated in State of Kerala v. Padmanabhan Nair 1999 (5) SCC 6901. Both Amrik Singh (supra) and S.R, Munnipalli (supra) were noted in that case. Sections 467, 468 and 471 relate to forgery. of valuable security, Will etc; forgery for purpose of cheating and using as genuine as forged document respectively. It is No. part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction u/s 197 of the Code is, therefore, No. bar.
12. This position was highlighted in State of H.P. v. M.P. Gupta 2004 (2) SCC 349.
34. In the light of the aforesaid principles laid down by the Apex Court, I find No. substance in the arguments canvassed by the learned senior counsel for the Petitioners in this regard.
35. In any case, as held by the Apex Court in Prakash Singh Badal''s case (supra), the question as to whether the sanction accorded is valid or not and whether or not the sanction u/s 197 of Code of Criminal Procedure for any of the offences is required will have to be decided depending upon the facts and circumstances of the case from stage to stage. Therefore, I refrain from expressing any opinion on this aspect of the matter. It is for the learned Special Judge to determine the same as and when the occasion demands.
36. In Antulay''s case referred to supra, the Apex Court while interpreting provisions of Section 6 of the P.C. Act, 1947, which created an embargo on the special court from taking cognizance of any of the offences under the said Act without a previous sanction accorded by the competent authority, has held that the existence of a valid sanction is a pre-requisite for taking cognizance of the offence and in the absence of such sanction, the Court would have No. jurisdiction to take cognizance of the offence. A trial without a valid sanction where one is necessary u/s 6 has been held to be a trial without jurisdiction by the Court.
37. In P.V. Narasimha Rao v. State (CBI/SPE) AIR 1998 SC 2120, it has been held thus in Para-92:
92.,-xxx...The requirement of sanction under Sub-section (1) of Section 19 is a matter relating to the procedure and the absence of the sanction does not go to the root of the jurisdiction of the Court.
38. In Prakash Singh Badal''s case (supra), the Apex Court reiterated the above principles in Para-28 thus:
28. The effect of Sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In Sub-section (3) the stress is on." failure of justice" and that too " in the opinion of the Court". In Sub-section (4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of Justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to root of jurisdiction as observed in Para-95 of the Narasimha Rao''s case (supra). Sub-section (3)(c) of Section 19 reduces the regour of prohibition. In Section 6(2) of the Old Act (Section 19(2) of the Act) question relates to doubt about authority to grant sanction and not whether sanction is necessary.
Therefore. I find No. substance in the contention of the learned Senior Counsels appearing for the Petitioners that the cognizance taken by the learned Special Judge is without jurisdiction.
39. Insofar as the other two persons arraigned as accused who are sitting members of the Parliament and of Legislative Assembly is concerned, of course, there is No. sanction to prosecute them. It is now fairly well-settled by the decision of the Apex Court that the Members of the Parliament and legislative Assembly are public servants, for the purpose of the provisions of P.C. Act, 1988./The question as to whether to prosecute such public servants prior sanction is necessary u/s 19 of the P.O. Act, arose for consideration before the Apex Court in P.V. Narasimha Rao''s case (supra) in Para-95 of the judgment their Lordships have reached the following conclusions.
95. xxx
i) A Member of Parliament does not enjoy immunity under Article 105(2) or under Article 105(3) of the Constitution from being prosecuted before a criminal Court for an offence involving offer or acceptance of bribe for the purpose of speaking or by giving his vote in Parliament or in any committees thereof.
ii) A Member of Parliament is a public servant u/s 2(c) of the Prevention of Corruption Act, 1988.
iii) Since there is No. authority competent to remove a Member of Parliament and to grant sanction for his prosecution u/s 19(1) of the Prevention of Corruption Act, 1988, the Court can take cognizance of the offences mentioned in Section 19(1) in the absence of sanction but till provision is made by Parliament in that regard by suitable amendment in the law, the prosecuting agency, before filing a charge sheet in respect of an offence punishable under Sections 7, 10, 11, 13, and 15 of the 1988 Act against a Member of Parliament in a criminal Court, shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be.
Of course, permission of the speaker of Lok Sabha is not obtained. However, requirement of such permission will have to be considered at the stage of issue of summons, if the Special Judge finds sufficient grounds to proceed further. Therefore, on this ground the complaint cannot be quashed at the thresh-hold.
40. In the light of the above, I find No. substance in the argument canvassed on behalf of the Petitioners.
41. No. doubt in the order impugned in these petitions, the learned Special Judge has not referred to the order of sanction accorded by the Governor. It is on this ground, it was contended that there is total lack of application of mind by the learned Judge as to whether there is requisite sanction, if so, whether the sanction accorded is valid and in accordance with law. I do not find any substance in this argument. During the course of the order impugned, the learned Special Judge before taking cognizance of the offences, has stated that he has perused the complaint. The Dictionary meaning of the word ''Perused'' as contained in ''Chambers'' Twentieth Century Dictionary'' is, to pass in scrutiny, one by one or piece by piece - to examine in detail - to revise - to read attentively or critically; (looslely), to read". In the case of
42. Assuming that the impugned order suffers from either non-application of mind or any other irregularity or illegality, let me consider as to whether the Petitioners have locus-standi to question the order impugned unless the summons are issued.
43. Section 190 of Code of Criminal Procedure occurring in Chapter-XIV of the Code empowers a Magistrate of the First Class to 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... Section 200 directs that,-A Magistrate taking cognizance of an offence on complaint shall examine the complainant on oath and the witnesses present, if any. Thus reading of Section 200 makes it clear that it is only when the complaint as defined u/s 2(d) of the Code is presented, and if the Magistrate finds sufficient materials to take cognizance in exercise of power u/s 190(1)(a), he should proceed to record statement of the complainant and witnesses present, if any, on oath. It is fairly well-settled that whenever a complaint is presented, the Magistrate or the Judge is not duty bound to take cognizance and proceed in accordance with Section 200 Code of Criminal Procedure. On presentation of the complaint, the Magistrate is required to apply his mind to the averments made in the complaint as well as the documents, if any, produced and if he is satisfied that the materials placed before him constitutes an offence, he would take cognizance and proceed further. On the other hand, if the materials placed before him do not make-out even a prima facie case, the Magistrate will be well within his right to reject the complaint even without taking cognizance. As per Section 202(1) of Code of Criminal Procedure, the Magistrate after taking cognizance and recording the statement of the complainant as also the witnesses present if any, on oath, if he is of the opinion that there are No. sufficient ground for proceeding, the Magistrate may postpone the issue of process and either hold an enquiry by himself or direct an investigation to be made by a police officer or by any other person as he thinks fit for the purpose of finding whether or not mere is sufficient ground for proceeding. During such inquiry, a Magistrate may take evidence of witnesses on oath as provided by Sub-section (2) of Section 202 of Code of Criminal Procedure As per Sub-section (3) of Section 202 of Code of Criminal Procedure if an investigation under Sub-section (1) is directed to be held by a person other than the police officer, he shall have all powers conferred by the Code on the officer incharge of the police station for the purpose of such investigation except the power to arrest without warrant. Reading of Section 203 of the Code makes it clear that after taking into consideration the statements on oath of the complainant and the witnesses as also the result of the enquiry or investigation u/s 202, if the Magistrate is of the opinion that there is No. sufficient ground for proceeding, he shall dismiss the complaint however by briefly assigning the reasons. If the Magistrate, on the basis of the aforesaid materials is of the opinion that there is sufficient ground for proceeding, he shall proceed to order issue of process in terms of Section 204 of the Code of Criminal Procedure, Thus, from the scheme of provisions of Sections 200, 202 and 203 contained in Chapter XV and Section 204 falling in Chapter XVI it is clear that taking of cognizance of the offence at the initial stage would be for the purpose of proceeding further as contemplated in Chapter-XV, i.e., to proceed to record the statement of the complainant and witnesses, if any, on oath and to find out whether there are sufficient grounds to proceed and if there are No. sufficient grounds to proceed either to dismiss the complaint in terms of Section 203 or direct either an enquiry in the case by himself or an investigation by a police officer or by any other person, for the purpose of deciding whether or not there is sufficient ground for proceeding. Even after such enquiry or investigation, if the Magistrate is not satisfied about the existence of sufficient ground for proceeding, he shall have right to dismiss the complaint u/s 203 and if he is satisfied about the existence of sufficient ground, he would proceed to order issue of summons to the persons arraigned as accused. It is well-settled that the Magistrate at that stage would take cognizance of the offence and not that of offender. Therefore, from the reading of the entire scheme of these provisions, it is manifestly clear that till the process issued in terms of Section 204 of Code of Criminal Procedure, the persons arraigned as accused have No. right of audience or participation. Even if there is some illegalities or irregularities in the procedure of taking cognizance or in directing inquiry or investigation, the persons arraigned as accused in the complaint would not get a right to question the validity of such orders or proceedings as long as process is not issued. It is only after issuance of process, the persons arraigned as accused would technically become the accused and would get a right or authority to question the validity of the orders. This view would get support from the fact that even after taking cognizance, recording the statement of the complainant and the witnesses on oath, and also considering result of the enquiry or the investigation ordered u/s 202 of Code of Criminal Procedure, if the Magistrate is of the opinion; that there are No. sufficient ground to proceed, and therefore, dismisses the complaint u/s 203. there would be No. occasion for the persons arraigned as accused in the complaint to question the order or the proceedings. Therefore, it is only upon issuance of summons, the persons arraigned as accused would get right to question the order taking cognizance and the further proceedings thereon on any grounds. Even the scope of inquiry or investigation u/s 202(1) of Code of Criminal Procedure is limited only to find out whether or not there are sufficient grounds to proceed further.
44. In
...It is clear from the entire scheme of Chapter-XVI of the Code (old Code) that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a. counsel or agent with a view to be informed of what is going on. But, since the very question for consideration being whether he should be called upon to face an accusation, he has No. right to take part in the proceedings.
45. In
46. In V.S. Narayan v. Sri. B.G. Sridhar and Anr. ILR 1997 KAR 2759, this Court has held that the accused has No. locus-standi to approach the High Court: for invoking the inherent powers u/s 482 of Code of Criminal Procedure even before the Magistrate takes cognizance of the offence alleged in the complaint filed. It is further held in the said decision that, the accused gets right to approach the Court to participate in the proceedings or to quash the order only after the concerned Court takes cognizance and directs to issue process to the accused persons and till such time though the accused is present in Court, cannot participate in the proceedings, but can only observe the proceedings.
47. In the case of
48. In view of this, the persons arraigned as accused had No. right to file any applications as such, the applications filed under Sections 210 and 319 of Code of Criminal Procedure, have been rightly rejected as not maintainable.
49. During the course of arguments, in the light of the aforesaid decisions and the principles, the court sought clarification as to whether during the course of investigation directed to be held by a police officer in terms of Section 202 of Code of Criminal Procedure, the police officer would have a right to arrest the persons named as accused in the complaint in exercise of his plenary power of investigation as defined u/s 2(h) r/w. Section 156 of Code of Criminal Procedure and if he is empowered to do so, as it would affect personal liberty of the person, can it be said that such person will have No. locus-standi to question either the order of taking cognizance or ordering investigation thereon u/s 202 Code of Criminal Procedure till process is issued. In answer to this query of the Court, Sri. C.H. Hanumantharaya appearing for the Respondent-complainant fairly submitted that., the investigation u/s 202(1) & (2) being limited only to the extent of finding as to whether or not there are sufficient grounds to proceed further in terms of Section 203 or 204 of Code of Criminal Procedure, the police officer, who is directed to investigate cannot exercise all the powers of investigation vested in him as defined u/s 2(h) r/w. Section 156 of Code of Criminal Procedure He also submitted that during such an investigation ordered u/s 202(1), the police officer is. not required to register a case and is not empowered to arrest the persons, as he is only required to collect the evidence and place it before the Magistrate, who is ceased of the case so as to enable the Magistrate to find-out whether there are sufficient grounds to proceed further and to order issue of process. In support of this submission, he also drew the attention of this Court to a decision of the Gujarat High Court in the case of Sankalchand Valjibhai Patel v. J.P. Chavda and Ors reported in 1979 Gujarat Law Reporter page 17 and also the decision" of, the Patna High Court in
50. u/s 202 Code of Criminal Procedure, the Magistrate/Special Judge is empowered to postpone the issue of process and direct either enquiry by himself or investigation by a police officer or any other persons. of course, as per Sub-section (3) of Section 202 Code of Criminal Procedure, if investigation is directed to be held by any person other than a police officer, he will have all the powers of investigation except power of arrest without warrant. It is on this basis, it was contended by the learned Senior Counsel Sri. C.V. Nagesh that the embargo on power of arrest without warrant is only on any person other than the police officer and No. such embargo is imposed on the power of arrest if the investigation is ordered by the police officer. Section 2(h) of Code, defines investigation which includes all proceedings under the code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate), who is authorised by a Magistrate in this behalf. Sub-section (1) of Section 156 Code of Criminal Procedure deals with investigation of cognizable case and Section 157 empowers the investigating officer even to arrest the offender if required, without a warrant. However, from scheme of the provisions of Chapter XV and in particular the object of enquiry or investigation- u/s 202(1), it is clear that the enquiry or investigation is limited only to find-out as to whether or not there are sufficient grounds for proceeding. When investigation is ordered by a police officer under Sub-section (1) of Section 202 Code of Criminal Procedure, he is required to collect evidence and place it before the Magistrate or the Special Judge concerned and it is for the Magistrate or the Special Judge to form an opinion as to whether or not there is sufficient ground for proceeding. Investigation under Sub-section (1) of Section 202 by a police officer is thus ordered only to find out whether or not there is sufficient ground for proceeding. At the stage when the Magistrate or the Special Judge was of the opinion that the materials placed before him are not sufficient to proceed further and some more materials are required he would postpone the issue of process and adopt any one of the modes contemplated u/s 202(1) to collect materials to decide as to whether summons to be issued or not. Therefore, it cannot be said that an investigation ordered under Sub-section (i) of Section 202 of Code of Criminal Procedure would be in the nature of investigation as defined u/s 2(h) r/w. Sections 156 and 157 of Code of Criminal Procedure u/s 156 police officer has plenary power of investigation and at the end of such investigation the police officer is empowered to form an opinion and eventually submit a report u/s 173 of Code of Criminal Procedure Where as the investigation ordered u/s 202 (1) of Code of Criminal Procedure, is "limited only to collect evidence and place it before the concerned Magistrate or Judge. Police Officer is not entitled to form any opinion nor he is required to file a final report. During investigation ordered under Sub-section (1) of Section 202 Code of Criminal Procedure, if a police officer is held to have power of arrest, it would lead to an anomalous situation, in the sense, at the stage of ordering investigation under Sub-section (1) of Section 202 Code of Criminal Procedure, the Magistrate himself would have been in dilemma as to the sufficiency of grounds, to proceed and he would have postponed the issue of process to the persons arraigned as accused/Thus, at that stage, he finds materials placed before him as not sufficient even to summon the persons arraigned as accused. In such a situation, if the police officer, who is directed to hold an investigation and to place materials before the Magistrate or the Special Judge, is held to have the powers of arrest it would amount to indirectly summoning a person arraigned as accused. In the event of arrest by the police officer during such investigation, he is bound to produce such arrested persons before the concerned Court within 24 hours as required by law. In that event, when the concerned Magistrate or the Special Judge himself having not summoned the persons arraigned as accused, would be faced with the situation of dealing with the person arraigned as accused on account of being produced before him pursuant to arrest. Therefore, having regard to the limitations imposed and the scope of investigation u/s 202(1) of Cr. PC, even if such an investigation is ordered to be held by a police officer, it has to be held that he will have No. power of arrest without a warrant. For this view of mine, I gain support from the decisions of the Gujarat High Court and Patna High -Court referred to supra.
51. In the decision of the Gujarat High Court in Sankalchand Valjibhdi Patel''s case (supra), the question that arose for consideration was that, when upon receipt-.of a. complaint of an offence, a Magistrate instead of issuing process postpones the issue of process against the accused and direct a police officer to make an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding, can the police officer in charge of the investigation, on his own, place the accused under arrest. Their Lordship after referring to the language of Section 202 Code of Criminal Procedure, the scope and limitations imposed on the investigation, and also referring to the definition of expression '' Investigation'' u/s 2(h), has held that, ''for the purposes of Section 202, the power to investigate cannot include the power to arrest. It is further observed that, to read the power to arrest therein would be to introduce an anachronism for then there can be No. question of the Magistrate applying his mind to the materials gathered by the police officer and to decide whether or not there are sufficient grounds for proceeding and whether it was necessary to issue process, and if so, what type of process. It is further held that, ''there is No. room for doubt that a police officer does not have any power to arrest without warrant any person in the course of an investigation directed by a Magistrate u/s 202(1) of the Code.''
52. In S.K. Jamaluddin''s case (supra), it has been held that, ''the object of an investigation under Chapter XII of the Code, namely investigation by a police in a case instituted before it and the one contemplated in Section 202(3) Code of Criminal Procedure is not the same. It has been further held that, the expression ''the person holding investigation shall have all the powers of an Officer-in-Charge of a Police Station" occurring in Section 202(3) of Code of Criminal Procedure has to be construed within the framework and in the light of the provisions of Section 202. Section 202 refers to a stage after cognizance has been taken in the case and investigation thereafter is defined for the purpose of issuing process against the accused and to that purpose alone the officer investigating the case u/s 202 has to direct his attention. Whereas under Chapter-XII of the Code, the entire matter is at large before the investigating authority, who is entitled to collect materials from any quarters whatsoever bearing on the truth or otherwise of the allegations made against the accused. Thus, it is clear that the scope of the two investigation is quite different.
53. In Devarapalli Lakshminarayana Reddy v. Narayana Reddy AIR 1976 SC 1672 the Apex Court has considered the provisions of Section 202 both before and after" the. amendment of the Code in 1973 and has noticed the distinction between the police investigation ordered under. Section 156(3) and the one directed u/s 202 under the new Code. The relevant observations are found in Para-17 of the decision, which reads as under:
17. Section 156(3) occurs in Chapter XII, under the caption: " Information to the Police and their powers to investigate": while Section 202 is in Chapter XV which bears the heading "Of complaints to Magistrate.
The power to order police investigation u/s 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power u/s 156(3) can be invoked by the Magistrate before he takes cognizance of the offence u/s 190(1) (a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under Sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation u/s 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence u/s 156 and ends with a report or charge sheet u/s 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered u/s 202 to direct within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding" Thus the object of an investigation u/s 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.
54. In
55. Therefore, in view of the above, the apprehension expressed by the learned Senior Counsel appearing for the Petitioners that during investigation u/s 202 by a police officer, persons arraigned as accused in the complaint run the risk of arrest without a warrant has No. basis. Any such apprehension in the mind of such persons is allayed by holding that the investigation ordered u/s 202 (1) of Code of Criminal Procedure by. a-police officer does not include power of arrest without warrant In this regard, I am in respectful agreement with the judgment of Gujarat High Court.
56. In view of the above discussions, the Petitioners in these petitions against whom No. process is ordered in terms of Section 204 of Code of Criminal Procedure, have No. locus-standi to question the correctness of the order taking cognizance and the proceedings thereon. Therefore, these petitions filed seeking to quash the common order taking cognizance in PCR Nos. 2 to 6/2011 are highly premature, as such, they are liable to be dismissed.
57. Before parting with the case, having regard to the fact that serious allegations are made against the persons occupying high public offices, I deem it proper to note the seven principles of public life stated in the report of the Committee Headed by Lord Nolan constituted in England to make recommendations regarding "standards in public life" which are apt and relevant principles for ail the time to come. The seven principles stated therein which have been noted by the Apex Court in Vineet Narain and Ors. v. Union of India, and Anr. AIR 1998 SC 889, are as under:
Selflessness
Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.
Integrity
Holders of public office should not. place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.
Objectivity
In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.
Accountability
Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.
Openness
Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.
Honesty
Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
Leadership
Holders of public office should promote and support these principles by leadership and example."
58. After referring to the above 7 principles, the Apex Court has observed thus:
These principles of public life are of general application in every democracy and one is expected to bear in mind while scrutinizing the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence it. must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law.
In view of the above discussions, these petitions are dismissed. In the light of dismissal of these petitions, investigation ordered by the. learned Special Judge in PCR No. 2/2011 shall proceed, and in PCR Nos. 3 to 6/2011, the Special Judge shall proceed further.
