Dr. Reyaz Farooq @APPELLANT@Hash State Of Jammu & Kashmir And Others

,,,,

1. The petitioner has challenged FIR no. 33/2012, Police Station, Vigilance Organization Kashmir, in a composite petition under Section 104 of the",,,,

Constitution of Jammu & Kashmir read with Section 561-A of the Code of Criminal Procedure. The gravamen of charge mainly rests on the,,,,

allegations that on the basis of a complaint by Tanveer Hussain Khan (respondent no. 7), filed before Special Judge Anti-Corruption under Section",,,,

156(3) Cr.P.C., with regard to procurement of Dental Machinery on exorbitant rates by authorities of Government Dental College, Srinagar.",,,,

Verification was conducted in this regard by Vigilance Organization Kashmir which was formally registered as Preliminary Verification no. 12/2012,,,,

which ultimately led to the registration of FIR No. 33/2012 under section 5(2) Jammu & Kashmir Prevention of Corruption Act Svt. 2006 (hereinafter,,,,

PC Act) and 120-B in Police Station, VOK.",,,,

Factual Matrix,,,,

2. In terms of Government order No. 61-HME of 2008 dated 16. 09.2008, Purchase Committee No. 3 came to be constituted including other",,,,

Members with petitioner as its Chairman for finalizing the rate contracts of items to be purchased by the Health and Medical Education Department.,,,,

It is stated that in partial modification of the aforesaid Government order, another Government order No. 137-HME of 2008 dated 20.10.2008 was",,,,

issued whereby sanction came to be accorded to the inclusion of Deputy Director, Dentistry, Health Services, Kashmir/Jammu as Members of the",,,,

Purchase Committee No. 3. In terms of Government Order No. 518-HME of 2012 dated 22.08.2012, the nomenclature of the Purchase Committee",,,,

came to be changed to Rate Contract Committee on the premise that the said Committee, will fix the rate contract for procuring machinery items. It is",,,,

stated by learned counsel for the petitioner that the aforesaid Government orders specifically provided that the Chairman of the Committee is at liberty,,,,

to co-opt any other Member technical / non technical / expert in the interests of administration and patient care. It is stated in the petition that the,,,,

aforesaid Committee was to undertake the process of fixing the Rate Contracts for procuring machinery and equipment (Dental) for the whole of the,,,,

Jammu & Kashmir State including the Government Dental College, Srinagar, Government Dental College, Jammu, Directorate of Health Services",,,,

after following the necessary codal formalities. It is stated that as a matter of standard and formal practice, before issuing any tender notice for",,,,

procurement of any dental equipments or material for the Dental College, the Heads of the Departments / Experts in their respective disciplines were",,,,

engaged in the process of consolidating the requisition of the items sought to be procured being the end users of these equipments / material and in the,,,,

process Head of the Departments / Experts were involved, engaged and associated for consolidation of the requisitions at pre-tendering process. A",,,,

copy of consolidation of specifications of the equipments and machinery sought to be procured and purchased submitted to the Rate Contract,,,,

Committee duly signed by the Experts / Head of the Departments forms part of the writ record.,,,,

3. After the aforesaid process, Tender Notice No. 02 of 2008 dated 29.12.2008 was floated whereby sealed tenders for supply of various items",,,,

detailed in Section-I, Section-II and Section-III came to be invited by the office of Purchase Committee No. 3 through its Chairman for and on behalf",,,,

of the Governor of the Jammu and Kashmir State. The tender documents were to be submitted in sealed double envelopes as technical bid and,,,,

financial bid as envisaged and indicated in the terms and conditions of the NIT. It is the case of the petitioner that on receipt of tender documents from,,,,

various tenderers, in the first instance, technical bids were opened, examined and evaluated whereafter the financial bids of the tenderers who",,,,

qualified the above technical bids were subsequently opened, examined and evaluated. It is specifically stated that the process of evaluation of both",,,,

technical and financial bids, had been the exclusive role of the HODs / Experts who had made requisitions with requisite specifications, to evaluate,",,,,

examine and assess the offers made strictly in tune with their requirements. As a matter of mandatory process each equipment/machinery sought to,,,,

be procured was collectively scrutinized by the Expert Committee and both the technical and financial bid bears signatures of the Experts. Therefore,",,,,

as per the petitioner, there was no independent decision for allotment of rate contract in isolation to the Purchase Committee. It is only after the",,,,

recommendations recorded by HODs / Experts after evaluation and assessment of technical and financial bids of successful tenderers the Rate,,,,

Contract Committee accepted the recommendations and consequently issued the rat contract in favour of successful tenderer which position is,,,,

reflected and demonstrated by a copy of minutes of meeting.,,,,

04. On consideration of the petition on 23.07.2015, this Court after admitting the petition to hearing stayed the further proceedings qua the petitioner in",,,,

the case FIR No. 33/2012, Police Station, VOK, or any action pursuant to the report of the Vigilance Organization made to the respondents 1 and 2.",,,,

The ad interim direction dated 23.07.2015 reads as follows:,,,,

“I have heard learned counsel for the petitioner at length, perused the record and considered the matter. In view of the facts detailed in the writ",,,,

petition, this writ petition is admitted to hearing.",,,,

Notice, returnable within four weeks. Notice in the CMP also, returnable within the same period. In the meantime, any further proceedings in case",,,,

FIR No. 33/2012, Police Station, VOK, or any action pursuant to the report of the Vigilance Organization made to the Respondents 1 & 2 shall stay",,,,

qua the petitioner till further orders from the Court.â€​,,,,

05. The Respondent Vigilance Organization has filed the detailed reply in opposition to the petition filed by the petitioner. The Vigilance Organization,,,,

have pleaded that it was on the basis of a complaint by an RTI activist, Tanveer Hussain Khan, with regard to procurement of Dental Machinery on",,,,

exorbitant rates by authorities of Government Dental College, Srinagar, verification was conducted which revealed that Dental Machine Digital",,,,

Panoramic and Cephalmetric X-ray imaging unit Model Orthophos XG5DS Ceph manufactured by Sirona GMBH Germany has been purchased by,,,,

the Government Dental College, Srinagar at a cost of Rs. 46.80 lacs from M/s Villa India, New Delhi, while as the same Company has quoted a rate",,,,

of Rs. 19.00 lacs and 21.00 lacs for same type of machine except for an additional part which as per the Vigilance Organization costs an amount of,,,,

Rs. 9.00 lacs. The feature / specifications of the machine were compared with quoted machines by the Experts and found to be the same but at the,,,,

time of installation the same machine had been verified by the Verification Board and HOD concerned as being defective and was also found,,,,

producing substandard results. It is pleaded that during the course of verification it emerged that petitioner as Principal, Government Dental College,",,,,

Srinagar, in his capacity as Chairman, Purchase Committee No. 3 and Head of the Institution alongwith other Members of Purchase Committee in",,,,

criminal conspiracy with V. L. Narayanan of M/s Villa India paved way for procurement of said machine at an exorbitant price for pecuniary benefit,,,,

to one another causing a loss of over Rs. 16.00 lacs to the State exchequer. It is further pleaded that investigation of the case was concluded as,,,,

proved against the accused persons and forwarded to the State Vigilance Commissioner under Rule 24(1) of the Jammu and Kashmir State Vigilance,,,,

Commission Rules, 2013 for confirmation. The State Vigilance Commission in terms of letter dated 14.08.2015 raised some observations in the matter",,,,

and remanded the case back to the Vigilance Organization for clarification. In a nutshell, the stand taken by the Vigilance Organization Kashmir",,,,

indicts the petitioner in the commission of offence which has resulted in loss to the State exchequer to the tune of Rs. 16.00 lacs.,,,,

06. In rebuttal the petitioner has filed the rejoinder affidavit summarizing the legal pleas to elucidate the grounds raised in the petition. From perusal of,,,,

the Court record of the instant case, it is revealed that respondent no. 7 had filed Letters Patent Appeal (LPAOW No. 283/2015) against the orders of",,,,

this Court dated 23.07.2015 and 29.07.2015 which were maintained by observing that the respondent-complainant would pursue the writ petition. The,,,,

record further reveals that respondent no. 7 has also filed applications seeking vacation / modification of the aforesaid orders.,,,,

07. Heard the Learned Counsel for the parties, perused the record and considered the matter. On the basis of arguments advanced by Mr. Salih",,,,

Pirzada, learned counsel for the petitioner, the following aspects of law fall for consideration:",,,,

a) Whether a complaint against a public servant under Section 156(3) of Cr.P.C. can be taken cognizance of by a Magistrate in absence of a valid,,,,

sanction?,,,,

b) Whether prior sanction of a Magistrate under Section 155 of the Jammu &Kashmir Cr.P.C. is mandatory for investigating cognizable offences,,,,

along with non-cognizable?,,,,

c) Whether under the pretext of Preliminary Verification the investigating agency can verify the veracity of a complaint before registration of FIR?,,,,

d) Whether a reasoned order under Section 3 of the Prevention of Corruption Act, Svt. 2006 is necessary when the investigation is entrusted to a",,,,

designated/non-designated investigating officer?,,,,

8. Requirement of sanction under Section 6 PC Act for proceedings under Section 156(3) Cr.P.C.,,,,

Mr. Salih Pirzada, Learned Counsel for the petitioner argued that the Learned Special Judge Anti-Corruption, Srinagar, could not have entertained the",,,,

complaint filed by the private respondent under Section 156(3) Cr.P.C. seeking registration of FIR in absence of a valid sanction under Section 6,",,,,

Prevention of Corruption Act, Svt. 2006 and Section 197 of Cr.P.C. As per his submissions the term ‘cognizance’ is nowhere defined in the",,,,

Criminal Procedure Code, however, it is in routine procedural practice understood as the stage under Section 190 of the Cr.P.C. He further reiterated",,,,

that there is a distinction between ‘cognizance’ vis-à -vis Section 190 Cr.P.C. and ‘cognizance’ as understood in common parlance. The,,,,

latter has wider amplitude and brings within its fold any proceeding before a Magistrate not just under Chapter XV but also under Chapter XIV of the,,,,

Code. The learned counsel for the petitioner laid emphasis on the position of law that sanction is sine qua non for taking of cognizance by a Magistrate,,,,

against a public servant more significantly when the allegations are within the ambit of Prevention of Corruption Act. While reiterating the requirement,,,,

of sanction, Mr. Salih Pirzada, placed reliance on the following authorities of the Hon’ble Supreme Court:",,,,

A. Manharibhai Muljbhaui Kakadia v. Shaileshbhai Mohanbhai Patel (2012) 10 SCC 517;,,,,

B. Anil Kumar v. M.K. Aiyappa (2013) 10 SCC 705;,,,,

C. State of UP v. Paras Nath Singh (2009) 6 SCC 372;,,,,

D. L. Naryana Swamy v. State of Karnataka (2016) 9 SCC 598;,,,,

E. Ramayya v. State of Bombay AIR 1955 SC 287 (Vol. 42),,,,

8.1 On the other hand, Mr. N. H. Shah, learned counsel appearing for respondent nos. 3 to 5, while contesting the requirement of sanction for",,,,

prosecution asserted that the FIR was registered on the basis of the complaint filed by the private respondent and not on the directions of the Learned,,,,

Special Judge, Anti-Corruption, Srinagar. So as per his submission, all the precedents do not form ratio decidendi for the instant case. From the perusal",,,,

of the objections (paragraph 8) filed by Respondent-Vigilance Organization, it becomes evident from their own admission that the Preliminary",,,,

Verification no. 12/2012 was registered in compliance of the direction of Special Judge Anticorruption dated 13.08.2012 which ultimately led to the,,,,

registration of FIR No. 33/2012 dated 18.12.2012. So the fact as to whether the direction of the Special Judge led to the registration of the FIR does,,,,

not need any deliberation. Paragraph 8 of the objections filed by Vigilance Organization is reproduced as under:,,,,

“8.That in reply to Ground ‘a’ of Para-14, it is submitted that on the basis of complaint by an RTI activist Tanveer Hussain Khan with regard",,,,

to procurement of Dental Machinery on exorbitant rates by authorities of Government Dental College, Srinagar including the petitioner, the",,,,

Hon’ble Special Judge Anti-Corruption directed VOK for necessary action and accordingly verification No. 12/2012 was registered in P/S VOK,,,,

which led to the registration of case FIR No. 33/2012 u/s 5 (2) PC Act and 120-B RPC against others in P/S VOK, Srinagar.â€​",,,,

8.2 Even otherwise the Learned Special Judge, Anticorruption Kashmir in the detailed order dated 13.08.2012 has directed as follows:",,,,

“However, SSP VOK is directed to register formal FIR if in his opinion any ground for the same exists on the basis of the findings arrived at by the",,,,

inquiry officer under relevant provisions of law and thereafter take up the investigation in accordance with law.â€​,,,,

8.3 There are two aspects to the direction passed under Section 156(3) Cr.P.C. by the Learned Special Judge. One: for conducting the investigation,,,,

by inquiry officer and second: for the registration of FIR on the condition that “if in his opinion any ground for the same exists on the basis of the,,,,

findings arrived at by the inquiry officer.†So in any case investigation under section 156(3) Cr.P.C. to be conducted by “inquiry officer†was,,,,

inevitable. It is pursuant to this direction that Preliminary Verification (PV) No. 12/2012 was registered which led to the registration of the impugned,,,,

FIR. It is safe to infer from the direction of the Learned Special Judge, Anticorruption, Srinagar, that it was the judicial direction dated 13.08.2012 that",,,,

set the criminal law into motion. So the contention of Mr. Shah to the contrary that it was not the direction of Learned Special Judge that led to the,,,,

registration of FIR, and therefore, does not attract the embargo of Section 6 of the PC Act and Section 197 of Cr.P.C. is misplaced for the reason that",,,,

if requirement of sanction is found necessary it is immaterial that the direction of the Special Judge must lead to the registration of FIR. Admittedly,",,,,

the direction has led to registration of Preliminary Verification (PV) and ultimately FIR was registered on the basis of that PV.A direction for such,,,,

investigation was granted in proceedings under Section 156(3) Cr.P.C. The requirement of sanction for prosecution is provided in Section 6 of the PC,,,,

Act which is reproduced as under:,,,,

[6. Previous sanction necessary for prosecution. â€" (1) No Court shall take cognizance of an offence punishable under the provisions of this Act,,,,

alleged to have been committed by a public servant except with the previous sanction-,,,,

(a) in the case of a person who is employed in connection with the affairs of the State and is not removable from his office save by or with the,,,,

sanction of the Government.,,,,

(b) in the case of any other person of the authority competent to remove him from his office-,,,,

(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under sub-section (I) should be given by the,,,,

Government or any other authority, such sanction shall be given the Government or authority which would have been competent to remove the public",,,,

servant from his office at the time when the offence was alleged to have been committed;,,,,

(c) in the case of person who is or has been a member of the Council of Ministers other than the Chief Minister, or the Governor on the advice of the",,,,

Chief Minister;,,,,

(d) in the case of person who is or has been a Chief Minister or the Governor;,,,,

(e) in the case of a person who is or has been a member of either House of the State Legislature of the Speaker of the Legislative Assembly or the,,,,

Chairman of the Legislative Council, as the case may be.] [(3) Notwithstanding anything contained in the Code of Criminal Procedure, Samvat 1989-",,,,

(a) no finding sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of",,,,

any error, omission or irregularities in. the sanction required under sub-section (1), unless in the opinion of that Court, a failure of Justice has in fact",,,,

occasioned thereby;,,,,

(b) no Court shall stay the-proceeding under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless",,,,

it is satisfied that such error. Omission or irregularity has resulted in a failure of Justice;,,,,

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any,,,,

interlocutory order passed in any enquiry, trial, appeal or other proceedings.]",,,,

(4) In determining under sub-section (3) whether any error. Omission or irregularity in, such sanction has occasioned or resulted in a failure of Justice,",,,,

the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.,,,,

Explanation. â€" For the purposes of this section-,,,,

(a) error includes competency of the authority to grant sanction;,,,,

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or,,,,

with the sanction of a specified person or any requirement of a similar natureâ€​.,,,,

8.4 The opening words of the Section make it abundantly clear that no court is competent to take cognizance of any offence under the PC Act against,,,,

a public servant in absence of a valid sanction subject to the requirements of the provision. Now the question which requires consideration is whether,,,,

such sanction precludes a Magistrate from passing an order on a complaint under Section 156(3) Cr.P.C? The stage of proceeding under Section,,,,

156(3) is what is referred to as pre-cognizance stage. Cognizance is nowhere defined in the Code, however, a Magistrate can take cognizance under",,,,

Section 190 of the Code. Section 190 of the Code of Criminal Procedure is reproduced as under: “Section 190 in the Code of Criminal Procedure,",,,,

1898 190. Cognizance of offences by Magistrates.,,,,

(1) Except as hereinafter provided, any Chief Judicial Magistrate and any other Judicial Magistrate, specially empowered in this behalf may take",,,,

cognizance of any offence-,,,,

(a) upon receiving a complaint of facts which constitute such offence;,,,,

(b) upon a report in writing of such facts made by any police-officer;,,,,

(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been",,,,

committed.,,,,

(2) The High Court may empower any Magistrate to take cognizance under sub-section (1) clause (a) or clause (b) of offences for which he may try,,,,

to commit for trial.,,,,

(3) The High Court empower any Judicial Magistrate of the first or second class to take cognizance under sub-section (1), clause (c), of offences for",,,,

which he may try or commit for trial.,,,,

8.5 The Hon’ble Supreme Court in L. Naryana Swamy v. State of Karnataka (2016) 9 SCC 598 while discussing the requirement of sanction,,,,

under Section 19 of the Prevention of Corruption Act, 1988 (Central) which corresponds to our Section 6 of PC Act, Svt. 2006, has held as follows:",,,,

“10. With this factual background, we advert to the questions of law that arise for consideration:",,,,

10.1 (i) Whether an order directing further investigation under Section 156(3) CrPC can be passed in relation to public servant in the absence of valid,,,,

sanction and contrary to the judgments of this Court in Anil Kumar v. M.K. Aiyappa [Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 : (2014) 1",,,,

SCC (Cri) 35] and Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel [Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel,",,,,

(2012) 10 SCC 517 : (2013) 1 SCC (Cri) 218] ?,,,,

10.2 (ii) Whether a public servant who is not on the same post and is transferred (whether by way of promotion or otherwise to another post) loses the,,,,

protection under Section 19(1) of the PC Act, though he continues to be a public servant, albeit on a different post?",,,,

11. Since requirement of obtaining sanction is contained in Section 19(1) of the PC Act, it would be proper to reproduce the same. For our purposes,",,,,

reproduction of sub-section (1) of Section 19 of the PC Act shall suffice which we reproduce herein below:,,,,

“19. Previous sanction necessary for prosecution.â€",,,,

(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant,",,,,

except with the previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act, 2013â€"",,,,

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the,,,,

sanction of the Central Government, of that Government;",,,,

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction,,,,

of the State Government, of that Government;",,,,

(c) in the case of any other person, of the authority competent to remove him from his office.â€​",,,,

12. As is clear from the plain language of the said section, the court is precluded from taking “cognizance†of an offence under certain sections",,,,

mentioned in this provision if the prosecution is against the public servant, unless previous sanction of the Government (Central or State, as the case",,,,

may be) has been obtained. What is relevant for our purposes is that this section bars taking of cognizance of an offence. The question is whether it,,,,

will cover within its sweep, order directing investigation under Section 156(3) CrPC? The High Court has taken the view, in the impugned judgment",,,,

[Shashidhar v. State of Karnataka, 2014 SCC OnLine Kar 12287] , that bar is from taking cognizance which would not apply at the stage of",,,,

investigation by the investigating officer. It is observed that sanction is required only after investigation and that too when, after investigation, it is",,,,

found that there is substantial truth in the investigation report as to what amounts to cognizance of offence.,,,,

13. The High Court has referred to Section 190 CrPC which stipulates that cognizance of an offence is to be taken under three contingencies viz. (a),,,,

upon receiving a complaint of facts which constitute such offence, or (b) on the basis of police report stating such facts which constitute an offence or",,,,

upon information received from any person other than police officer, or (c) suo motu when the Magistrate acquires that such an offence has been",,,,

committed. This position is clearly discernible from the reading of Section 190 CrPC and we extract the same hereinbelow:,,,,

“190. Cognizance of offences by Magistrates.â€"(1) Subject to the provisions of this Chapter, any Magistrate of the First Class, and any",,,,

Magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offenceâ€"",,,,

(a) upon receiving a complaint of facts which constitute such offence;,,,,

(b) upon a police report of such facts;,,,,

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.",,,,

(2) The Chief Judicial Magistrate may empower any Magistrate of the Second Class to take cognizance under sub-section (1) of such offences as are,,,,

within his competence to inquire into or try.â€​,,,,

14. When a complaint is received, the court records preliminary evidence of the complainant on the basis of which it satisfies itself as to whether",,,,

sufficient evidence is placed on record which may prima facie constitute such offence. Likewise, police report is filed under Section 173(2) CrPC on",,,,

the completion of investigation and on perusal thereof, the Magistrate satisfies himself about the facts which constitute such offence. Similar is the",,,,

position in the third contingency. On this basis, the High Court has opined that since prior sanction is required only at the time of taking cognizance",,,,

which stage comes much after the investigation is ordered under Section 156(3) CrPC at the stage of giving direction to investigate into the complaint,",,,,

such a sanction is not required.,,,,

15. The above view taken by the High Court is contrary to the judgments of this Court in Manharibhai Muljibhai Kakadia [Manharibhai Muljibhai,,,,

Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517 : (2013) 1 SCC (Cri) 218] and Anil Kumar [Anil Kumar v. M.K. Aiyappa, (2013) 10",,,,

SCC 705 : (2014) 1 SCC (Cri) 35]. In Manharibhai Muljibhai Kakadia [Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10",,,,

SCC 517 : (2013) 1 SCC (Cri) 218] , the facts were that the respondent filed before the CJM a criminal complaint alleging that the appellant had, by",,,,

doing the acts stated, committed the offences punishable under Sections 420, 467, 468, 471 and 120-B IPC. The CJM, in exercise of his power under",,,,

Section 202 CrPC by his order dated 18-6-2004 directed an enquiry to be made by a police inspector. The investigating officer investigated into the,,,,

matter and submitted a complaint summary report opining that no offence was made out. The CJM on 16-4-2005 accepted that report and dismissed,,,,

the complaint. The respondent complainant filed a criminal revision petition thereagainst under Section 397 read with Section 401 Cr.P.C. before the,,,,

High Court. The appellants then made an application seeking their impleadment as respondents in the revision proceedings so that they could be heard,,,,

in the matter. On 5-8-2005 [Manharbhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, 2005 SCC OnLine Guj 280] , the High Court dismissed",,,,

that application. Against that order, appeal was heard by special leave. This Court set aside [Manharibhai Muljibhai Kakadia v. Shaileshbhai",,,,

Mohanbhai Patel, (2012) 10 SCC 517 : (2013) 1 SCC (Cri) 218] the order of the High Court permitting the appellants to be impleaded in the revision",,,,

proceedings. The Court took note of the provisions of CrPC i.e. Section 202, which does not permit an accused person to intervene in the course of",,,,

inquiry by the Magistrate. However, it was held that even while directing inquiry, the Magistrate applies his judicial mind on the complaint and,",,,,

therefore, it would amount to taking cognizance of the matter. In this context, the Court explained the word “cognizance†in the following manner:",,,,

(Manharibhai Muljibhai Kakadia case [Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517 : (2013) 1 SCC (Cri) 218]",,,,

, SCC p. 533, para 34)",,,,

“34. The word “cognizance†occurring in various sections in the Code is a word of wide import. It embraces within itself all powers and,,,,

authority in exercise of jurisdiction and taking of authoritative notice of the allegations made in the complaint or a police report or any information,,,,

received that an offence has been committed. In the context of Sections 200, 202 and 203, the expression “taking cognizance†has been used in",,,,

the sense of taking notice of the complaint or the first information report or the information that an offence has been committed on application of,,,,

judicial mind. It does not necessarily mean issuance of process.â€​,,,,

16. The second judgment in Anil Kumar [Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] referred to above is directly on",,,,

the point. In that case, identical question had fallen for consideration viz. whether sanction under Section 19 of the PC Act is a precondition for",,,,

ordering investigation against a public servant under Section 156(3) CrPC even at pre-cognizance stage? Answering the question in the affirmative,",,,,

the Court discussed the legal position in the following manner: (SCC pp. 711-12 & 713-14, paras 13-15 & 21)",,,,

“13. The expression “cognizance†which appears in Section 197 CrPC came up for consideration before a three-Judge Bench of this Court in,,,,

State of U.P. v. Paras Nath Singh [State of U.P. v. Paras Nath Singh, (2009) 6 SCC 372Â Â Â Â Â Â Â Â : (2009) 2 SCC (L&S) 200] and this",,,,

Court expressed the following view: (SCC p. 375, para 6)",,,,

‘6. … “10. … And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt",,,,

of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such",,,,

offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the",,,,

Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty.",,,,

The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be,,,,

available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by,,,,

the expression, “no court shall take cognizance of such offence except with the previous sanctionâ€. Use of the words “no†and “shallâ€",,,,

makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very,,,,

cognizance is barred. That is, the complaint cannot be taken notice of. According to Black's Law Dictionary the word “cognizance†means",,,,

“jurisdiction†or “the exercise of jurisdiction†or “power to try and determine causesâ€. In common parlance, it means taking notice of. A",,,,

court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is",,,,

accused of an offence alleged to have been committed during discharge of his official duty.†[Ed.: As observed in State of H.P. v. M.P. Gupta,",,,,

(2004) 2 SCC 349, 358, para 10 : 2004 SCC (Cri) 539] ’",,,,

14. In State of W.B. v. Mohd. Khalid [State of W.B. v. Mohd. Khalid, (1995) 1 SCC 684 : 1995 SCC (Cri) 266] , this Court has observed as follows:",,,,

‘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.’ [Ed.: As considered in State of,,,,

Karnataka v. Pastor P. Raju, (2006) 6 SCC 728, 734, para 13 : (2006) 3 SCC (Cri) 179]",,,,

The meaning of the said expression was also considered by this Court in Subramanian Swamy case [Subramanian Swamy v. Manmohan Singh, (2012)",,,,

3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666] .,,,,

15. The judgments referred to hereinabove clearly indicate that the word “cognizance†has a wider connotation and is not merely confined to the,,,,

stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) CrPC, obviously, he has not",,,,

taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge",,,,

takes cognizance of the offence on a complaint presented under Section 200 CrPC and the next step to be taken is to follow up under Section 202,,,,

CrPC. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage.",,,,

***,,,,

21. The learned Senior Counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and,,,,

hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section 19 has an",,,,

object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall",,,,

not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the",,,,

requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various",,,,

judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3)",,,,

CrPC. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh [State of U.P.v. Paras Nath Singh, (2009) 6 SCC",,,,

372 : (2009) 2 SCC (L&S) 200] and Subramanian Swamy [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 :",,,,

(2012) 2 SCC (L&S) 666] cases.â€​,,,,

Having regard to the ratio of the aforesaid judgment [Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] , we have no",,,,

hesitation in answering the questions of law, as formulated in para 10 above, in the negative. In other words, we hold that an order directing further",,,,

investigation under Section 156(3) CrPC cannot be passed in the absence of valid sanction.,,,,

8.6 The Hon’ble Supreme Court in Ramayya v. State of Bombay AIR 1955 SC 287 (Vol. 42) while reiterating the importance of ‘Sanction’,,,,

has held as follows:,,,,

“18. Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no",,,,

part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act",,,,

can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. What,,,,

it says isâ€",,,,

“when any public servant … is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of,,,,

his official duty….â€​,,,,

We have therefore first to concentrate on the word “offenceâ€​.,,,,

19. Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved",,,,

before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an “entrustmentâ€",,,,

and/or “dominionâ€; second, that the entrustment and/or dominion was “in his capacity as a public servantâ€; third, that there was a",,,,

“disposalâ€; and fourth, that the disposal was “dishonestâ€. Now it is evident that the entrustment and or dominion here were in an official",,,,

capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an",,,,

official capacity. Therefore, the act complained of, namely the disposal, could not have been done in any other way. If it was innocent, it was an",,,,

official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not",,,,

dispose of the goods save by the doing of an official act, namely officially permitting their disposal; and that he did. He actually permitted their release",,,,

and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could",,,,

have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official",,,,

in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would",,,,

be done in the discharge of an official duty and in the other, in the purported discharge of it.",,,,

20. The act of abetment alleged against him stands on the same footing, for his part in the abetment was to permit the disposal of the goods by the",,,,

doing of an official act and thus “willfully suffer†another person to use them dishonestly: Section 405 of the Indian Penal Code. In both cases, the",,,,

“offenceâ€​ in his case would be incomplete without proving the official act.,,,,

21. We therefore hold that Section 197 of the Code of Criminal Procedure applies and that sanction was necessary, and as there was none the trial is",,,,

vitiated from the start. We therefore quash the proceedings against the second accused as also his conviction and sentence.â€​,,,,

8.7 The intention of the Legislature behind such protection as provided under Section 6 of the PC Act and Section 197 Cr.P.C. is to prevent the public,,,,

servant from any vexatious proceeding. The distinction between the two provisions is that in the latter the public servant should have committed the,,,,

offence in discharge of his official duty while as such a requirement is absent under Section 6 of the PC Act. Albeit the object is to prevent only,,,,

vexatious proceedings against public servants and to diminish the inhibition of such deterrence of vexatious proceeding, but the section attracts within",,,,

its radius all public servants irrespective of whether the proceedings sought to be initiated against them are vexatious in nature or not. Such a,,,,

protection therefore is in anticipation of such susceptibility. The above two authorities of the Hon’ble Supreme Court only resuscitate the,,,,

protection provided under law. There can be no procedure countenanced under law by which this protection can be circumvented or diluted in any,,,,

manner. In the event of such occurrence the Courts of law cannot act docile but harbingers of justice and must restore which the rule of law intends,,,,

to confer. If we analyze various criminal statues we will find that the Legislature constructs these laws placing the rights of the accused at the zenith.,,,,

The real object of these laws is not just to create a deterrence of punishment but to ensure an immaculate criminal justice system which undoubtedly,,,,

takes precedence over punishment. The learned counsel for the Respondent-Vigilance Organization while placing reliance on various case laws time,,,,

and again stated that corruption is a cancer that is deteriorating the society. There can be no doubt that such morbidity needs to be pruned out, but",,,,

what requires emphasis is that non-adherence to the procedure established by law is a far greater cancer than its contravention by the accused. The,,,,

disparity between a law enforcement agency and an accused is set at naught if the proven allegation against both is of transgression of law, even",,,,

though the repercussions may be dissimilar. The protection accorded to the accused is sacrosanct and the Courts as well as the authorities are under a,,,,

mandatory statutory duty to ensure such protection for the elementary postulate of criminal jurisprudence is “innocent unless proven guiltyâ€, which",,,,

finds its roots in the legal maxim Ei incumbit probatio qui dicit, non qui negat (the burden of the proof lies upon him who affirms, not him who denies).",,,,

8.8 From the above judgments and the discussion it becomes clear that taking of cognizance is not restricted to the stage of Section 190 Cr.P.C. but to,,,,

any criminal proceedings before a Magistrate against a public servant in which the Magistrate exercises his jurisdiction. Therefore, I hold that a",,,,

Magistrate is precluded from exercising his jurisdiction in any manner against a public servant in any criminal proceeding in absence of a valid sanction,,,,

and it attracts within its fold the proceedings under Section 156(3) of the Criminal Procedure Code.,,,,

09. Prior sanction of a Magistrate under Section 155 J&K Cr.P.C. for investigating cognizable offences along with non-cognizable.,,,,

This position of law has been discussed in detail in the judgement of case titled Dr. Saleem-ur-Rehman v State of J&K & ors. [OWP 1961/2015 dated,,,,

07.05.2018] authored by me. Relevant excerpt of the judgement is extracted below:,,,,

“25. Chapter V-A of Schedule II, Cr.P.C. provides for a bifurcated mode of investigation for an offence under Section 120-B. For Criminal",,,,

Conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of 2 years or upwards shall be",,,,

punished as if he has abetted the same offence. For conspiracy of other offences the punishment is imprisonment not exceeding six (6) months. Under,,,,

Chapter V-A of Schedule II, Cr.P.C., the first part of section 120-B is cognizable. However, the second part is non-cognizable. Criminal conspiracy",,,,

for an offence under Prevention of Corruption Act carries a punishment of one year and may extend to 7 years and also fine. The conspiracy for an,,,,

offence under Section 5 (1)(d) corresponds to Section 120-B (2) which makes it a non- cognizable offence under the Schedule. The embargo placed,,,,

by Section 155 Cr.P.C. precludes the Investigation Agency in absence of a sanction order of a Magistrate. Non-adherence to such embargo is,,,,

tantamount to vitiation of investigation. The rebuttal of Learned AAG, that such an offence of conspiracy is cognizable is misdirected, therefore, is",,,,

rejected. Mr. Rathore placed reliance on a judgement of Punjab and Haryana High Court titled Chattar Singh v. State of Haryana 1980 CRI. LJ 315.,,,,

The Hon’ble High Court in this case has held as follows:,,,,

“5. I find no merit in the case set up in the petition and assed by Mr. Chaudhry. The FIR that was ordered to be registered and in fact, registered",,,,

included an offence which was cognizable, that is, the offence under Section 160 IPC. The moment an FIR is registered with cognizable offence, that",,,,

gives jurisdiction to the police to investigate the case. The investigation cannot be faulted on the ground that the offence that was registered was in,,,,

fact not made out from the facts disclosed in the FIR. At that stage, it is a question of view that a police official recording the FIR takes, as decisions",,,,

of the courts are not before him to guide him and again, it is a moot point as to what amounts to an affray. It is not beyond the pale of possibility that",,,,

another Court or another Judge may take an entirely different view of the matter than the one taken in the three decisions that have been cited by Mr.,,,,

Chaudhry. If, therefore, one of the many offences that the F. I. R. disclosed, was cognizable, then it was open to the police to investigate even in the",,,,

non-cognizable offences also. Therefore, the investigation suffers from no illegality and, consequently, the cognizance taken by the Magistrate on the",,,,

police report has to be held to be legal. Hence, no case is made out for quashing the proceedings pending before the Magistrate.â€​",,,,

26. Chattar Singh’s (supra) case as relied upon by Mr. Rathore is of no precedential value in terms of the submissions made by Mr. Salih Pirzada,",,,,

learned counsel for the petitioner that there is a distinction, inter alia, between Jammu & Kashmir Code of Criminal Procedure, Svt. 1989 (1933 AD)",,,,

and the Central Code of Criminal Procedure, 1973 with respect to Section 155. Under the Indian Cr.P.C. there is a fourth sub-clause to Section 155",,,,

which deems offences to be cognizable where at least one amongst the offences is cognizable and the rest non-cognizable.,,,,

Section 155, Cr.P.C. 1973 (Indian) reads as under:",,,,

“155. Information as to non-cognizable cases and investigation of such cases.,,,,

(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence,",,,,

he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may,,,,

prescribe in this behalf, and refer the informant to the Magistrate.",,,,

(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for,,,,

trial.,,,,

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant),,,,

as an officer in charge of a police station may exercise in a cognizable case.,,,,

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case,",,,,

notwithstanding that the other offences are non- cognizable.â€​,,,,

27. However, such provision has not been incorporated in the Jammu & Kashmir Cr.P.C. and for an Investigation Agency to investigate a group of",,,,

offences which include a non-cognizable one, it must obtain a sanction from the concerned Magistrate before launching the investigation. In the instant",,,,

case, the Investigating Agency has not obtained requisite sanction as is evident from the record submitted by Mr. Rathore. Moreover Learned AAG",,,,

has justified the absence of the sanction order from the Magistrate. Therefore the decision of Punjab and Haryana High Court will not come to the,,,,

rescue of the respondents as it has been delivered on the basis of the Central Cr.P.C, 1973. In Bhajan Lal’s(supra) case the Hon’ble Supreme",,,,

Court vis-Ã -vis Section 155 Cr.P.C. has held as follows:,,,,

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law,,,,

enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power u/art. 226 or the inherent powers u/s. 482 of the,,,,

Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be",,,,

exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any",,,,

precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases",,,,

wherein such power should be exercised,,,,

1. Where 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 prima facie constitute any offence or make out a case against the accused,,,,

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not",,,,

disclose a cognizable offence, justifying an investigation by police officers u/s. 156 (1) of the Code except under an order of a Magistrate within the",,,,

purview of S. 155(2) of the Code,,,,

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the,,,,

commission of any offence and make out a case against the accused,,,,

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted",,,,

by a police officer without an order of a Magistrate as contemplated under S. 155(2) of the Code,,,,

5. Where the allegations made in the FIR or complaint 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,,,,

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is,,,,

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing",,,,

efficacious redress for the grievance of the aggrieved party,,,,

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for,,,,

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge"".",,,,

(Emphasis Supplied),,,,

The second limb of argument vis-à -vis Section 120-B where Mr. Rathore tried to justify the absence of Magistrate’s sanction under Section 155,,,,

Cr.P.C. is that the offence under Section 120-B is not an offence in itself, however, it becomes an offence when the object for which conspiracy is",,,,

entered into becomes an offence. To scrutinize the veracity of such an argument, it is essential to examine a few precedents on the subject. In",,,,

Chandiram and Ors. v. Emperor AIR 1926 Sindh 174, it was held as under:",,,,

“1. We think there has been some confusion is the Courts below as to the law of conspiracy. The ingredients of the offence of conspiracy are: (1),,,,

That there should be an agreement between the persons who are alleged to conspire; and (2) that the agreement should be: (i) for doing an illegal act,",,,,

or (ii) for doing by illegal means an act which may not itself be illegal. It must be remembered that conspiracy is a substantive offence and has nothing,,,,

to do with abetment. It is to be remembered also that though an overt act may be specified in the charge yet this is not (except when the end of the,,,,

conspiracy is not to commit an offence) necessary. In any case the overt act or acts is or are introduced not as partially constituting the offence but as,,,,

giving information and example as to what the conspiracy was. Nor is there any limit to the number of overt acts which can be given in the charge.,,,,

The accused is not charged with committing them, but with committing the offence of conspiracy in the course of which these events took place. It is",,,,

thus clear that it may be specified in a charge that a certain act has been committed which could not possibly be committed by one of the alleged,,,,

conspirators; nevertheless such conspirator may be guilty of that conspiracy in the course of which such act was committed. Thus Lady Rochford,,,,

might well have been charged with conspiracy to commit high treason in connection with the seduction of Anne Boleyn. (Emphasis Supplied) In,,,,

Firozuddin Basheeruddin and ors. V. State of Kerela [(2001) 7 SCC 596], the Hon’ble Supreme Court held as under:",,,,

“25. Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where,,,,

application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for",,,,

every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of",,,,

the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the,,,,

encouragement and support of the group as a whole to warrant treating each member as a causal agent to each act. Under this view, which of the",,,,

conspirators committed the substantive offence would be less significant in determining the defendants liability than the fact that the crime was,,,,

performed as a part of a larger division of labor to which the accused had also contributed his efforts.â€​,,,,

28. Interpreting the provisions in Sections 120A and 120B of the IPC, this Court in the case of Yash Pal Mittal v. State of Punjab (1977) 4 SCC 540 in",,,,

para 9 at pages 543 & 544, made the following observations :",,,,

“9.The offence of criminal conspiracy under Section 120-A is a distinct offence introduced for the first time in 1913 in Chapter V-A of the Penal,,,,

Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every",,,,

detail of the conspiracy as long as they are co-conspirators in the main object of the conspiracy. There may be so many devices and techniques,,,,

adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve,,,,

the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose,,,,

but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be",,,,

committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be,,,,

and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or overshooting by some of the,,,,

conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability,,,,

of those others when they are associated with the object of the conspiracy. The significance of criminal conspiracy under Section 120-A is brought out,,,,

pithily by this Court in Major E.G.Barsay v. State of Bombay (1962) 2 SCR 195 thus:,,,,

“The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal",,,,

act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may",,,,

comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited",,,,

by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them",,,,

could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy,,,,

has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable.â€​",,,,

We are in respectful agreement with the above observations with regard to the offence of criminal conspiracy.â€​,,,,

The offence of criminal conspiracy on the basis of above judgments, is, therefore, without a doubt distinct and a substantive offence and is absolutely",,,,

not dependent upon commission of the resultant offence. As a result the argument of Mr. Rathore is in-cohesive with the dictum of law regarding,,,,

criminal conspiracy.,,,,

28. Hence the investigation launched by the respondents in absence of a valid sanction by the magistrate as provided under Section 155 J&K Cr.P.C.,,,,

is illegal. Accordingly, the second question is answered.â€​",,,,

9.1 The same principle applies to the facts of the instant case also. The investigating agency has proceeded to investigate the offence of criminal,,,,

conspiracy which in the instant case also is non-cognizable in violation of Section 155 Cr.P.C. In absence of a valid permission from the Magistrate,,,,

under Section 155 Cr.P.C., I hold the investigation for the offence of criminal conspiracy is illegal.",,,,

10. Scope of Preliminary Verification,,,,

This scope of Preliminary Verification also stands already deliberated upon Dr. Saleem-ur-Rehman’s case (supra). The relevant extract is,,,,

reproduced as under:,,,,

“30. The limited scope of Preliminary Verification is to determine whether a cognizable offence is made out from the contents of the information or,,,,

not. The State Vigilance Organization is a statutory body formed under Section 10 of PC Act, Svt. 2006. The Vigilance Manual, 2008 formulated on",,,,

the lines of CBI Manual, was formed drafted by the Vigilance Organization and its adoption was approved by the State Government on 19.06.2008.",,,,

This authorization is a part of the Vigilance Manual. Therefore, like the CBI Manual, the Vigilance Manual, 2008 is statutory in nature. The Vigilance",,,,

Organization also carries Preliminary Enquiry in terms of the procedure as provided under the Vigilance Manual, 2008. The procedure dealing with",,,,

Preliminary Enquiry is provided under Chapter 3, which deals with complaints. The excerpt of the Chapter is reproduced as under:",,,,

“Preliminary Enquiry (PE),,,,

3.16 When a complaint or information discloses adequate material indicating misconduct on the part of a public servant which needs a detailed,,,,

verification prior to registration of a cases u/s 154 Cr.P.C., a PE can be ordered. A PE should normally be completed in a period of six months. The",,,,

PE will be registered on a given proforma. Sometimes courts also order an enquiry by the State Vigilance Commission. Such preliminary enquiries,,,,

should also be registered after approval of Commissioner of Vigilance. A PE may be converted into FIR with the prior concurrence of Central Office,",,,,

as soon as sufficient material becomes available to show that, a prima facie commission of a cognizable offence under the Prevention of Corruption",,,,

Act is made outâ€​,,,,

In Christy Fried Gram Industry and Ors. Vs. State of Karnataka and Ors.2016 Cr.L.J. 482, the Karnataka High Court placed reliance on a Supreme",,,,

Court Judgment of State of UP v. Bhagwant Kishore Joshi, AIR 1964 SC 221 (para 8) which held the investigation to consist of the following steps:",,,,

i. Proceeding to the spot,",,,,

ii. Ascertainment of the facts and circumstances of the case,",,,,

iii. Discovery and arrest of the suspected offender.,,,,

iv. Collection of evidence.,,,,

v. Formation of opinion.""",,,,

31. In the instant case Preliminary Verification no. 34/2011 was registered by the Respondent-Vigilance Organization on 30.09.2011. The verification,,,,

culminated into an FIR only on 16.11.2012. Admittedly, the PV continued for over a year. Moreover, the contents of the FIR, the reply affidavit filed",,,,

on behalf of respondent no. 2 (VOK), it is manifest that the investigating agency has examined various documents and carried out exhaustive analysis",,,,

of the matter. The investigating agency has ventured way beyond the peripheries of Preliminary Enquiry and has examined the correspondences,,,,

between Directorate of Health Services, Kashmir and NRHM, communications of Directorate of Health Services Srinagar as well as Jammu. The",,,,

investigating agency has examined the Guidelines issued by Ministry of Health and Family Welfare, Government of India and has drawn a conclusion",,,,

while juxtaposing the same with the purchase of the Drug Kits. A comparative analysis of the rates on which Drug Kits were purchased during the,,,,

year 2009-2010 and 2010-2011 has also been made. The corrigendum issued by Director Health Services, Kashmir, has also been scrutinized during",,,,

Preliminary Enquiry. Paragraph 8 of the FIR makes it clear that the investigating agency has amassed enormous material with minute details during,,,,

the course of Preliminary Enquiry. Such an in-depth enquiry in the submissions of Mr. Salih Pirzada, learned counsel for the petitioner, amounts to",,,,

investigation before registration of FIR. As rightly pointed out by him, the provisions of Cr.P.C. cannot be amplified to such an extent which can",,,,

enable the Investigating Agency to carry out an in-depth analysis of a complaint while examining documents and formulating opinions.,,,,

32. The Constitution Bench of the Hon’ble Supreme Court in the case of Lalita Kumari v. Govt. of UP[AIR 2014 SC 187] has held as under:,,,,

“Conclusion/Directions:,,,,

111. In view of the aforesaid discussion, we hold:",,,,

(i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary",,,,

inquiry is permissible in such a situation.,,,,

(ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted",,,,

only to ascertain whether cognizable offence is disclosed or not.,,,,

(iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the",,,,

complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in",,,,

brief for closing the complaint and not proceeding further.,,,,

(iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who,,,,

do not register the FIR if information received by him discloses a cognizable offence.,,,,

(v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information,,,,

reveals any cognizable offence.,,,,

(vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category,,,,

of cases in which preliminary inquiry may be made are as under:,,,,

(a) Matrimonial disputes/family disputes,,,,

(b Commercial offences,,,,

(c) Medical negligence cases,,,,

(d) Corruption cases,,,,

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without",,,,

satisfactorily explaining the reasons for delay.,,,,

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.,,,,

(vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it",,,,

should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.,,,,

(viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information",,,,

relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the",,,,

said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.",,,,

112. With the above directions, we dispose of the reference made to us. List all the matters before the appropriate Bench for disposal on merits.â€​",,,,

(Emphasis supplied),,,,

33. As per the law laid down in Lalita Kumari’s (supra) case, the Investigating Agency has carried a discreet Preliminary Enquiry, which has",,,,

been amplified to such an extent that it entered the domain of investigation. No provision under the entire Code of Criminal Procedure grants authority,,,,

upon the Investigating Agency to investigate an offence prior to the registration of FIR. The Constitution Bench (Supra) of the Hon’ble Supreme,,,,

Court has also held that verification cannot be used to verify the veracity of a complaint and that a preliminary verification cannot exceed more than 7,,,,

days. The FIR in the instant case is an outcome of an illegal investigation carried out by the respondent. In Christie Fried Gram Industries v/s State of,,,,

Karnataka (supra), in which the investigating agency had, under the pretext of discreet preliminary verification, in effect investigated the case. The",,,,

High Court of Karnataka, inter alia, on this ground had quashed the FIR therein. The High Court in this case (supra) held as follows:",,,,

“21. The points that arise for consideration are that:,,,,

(1) Whether the investigation and preliminary enquiry prior to registration of FIR is permissible in law? And if not what is the effect?,,,,

(2) Whether in the absence of alleging offence under Section 7 & 11 of Prevention of Corruption Act, non-public servants (petitioners in Writ",,,,

Petitions), can be prosecuted?",,,,

(3) Whether the Lokayuktha Police is empowered to initiate proceedings and investigate in respect of food related offences, when under Food Safety",,,,

and Standards Act, 2006, a separate authority and complete mechanism is provided which has the exclusive jurisdiction to deal with it?",,,,

(4) Search warrant issued and seizure made based on that is vitiated thereby vitiating the entire proceedings as contended by the petitioners?,,,,

(5) Whether the petitioners have made out a case for quashing the proceedings?""",,,,

22. My answer to the above points are in favour of the petitioners for the following reasons:,,,,

Point No. 1. Whether the investigation and preliminary enquiry prior to registration of FIR is permissible in law? And if not what is the effect?""",,,,

23. It is not disputed by the respondent prosecution that in the present case investigation has taken place prior to registration of F.I.R. but learned,,,,

counsel for Lokayukta claims that it is only a discrete enquiry.,,,,

24. An anonymous complaint was filed against the Director of Women and Child Development Department on 5.10.2010. The Superintendent of,,,,

Police, Lokayuktha, Bangalore City Division entrusted the matter to Smt. H R Radhamani, Dy. S.P for investigation. Accordingly, Smt. Radhamani",,,,

investigated the matter, and reported vide report dated 30.1.2011 that husband of Smt. Shamala Iqbal, Director of Women and Child Development",,,,

Department had misused her name and interfered in the work of the department and indulged in corruption. Thereafter Sri Anil Kumar, Inspector of",,,,

Lokayuktha took over the investigation and submitted his report dated 9.2.2012 to the effect that contents of the complaint are true and to ascertain,,,,

the further particulars and collect information he listed out as many as 10 places to be raided and the persons named therein.,,,,

25. On 7.3.2012 statement of Mrs. Priya Udupi was recorded. The learned counsel for Lokayukta sought to contend initially that it is only a,,,,

typographical mistake, actually her statement was recorded on 7.3.2013. In the final report dated 2.3.2013, there is a reference with regard to",,,,

statement of Mrs. Priya Udupi, which falsifies the initial contention of the Lokayukta that it was recorded on 7.3.2013. By way of memo dated",,,,

8.9.2015 filed by the prosecution, it is sought to contend that her statement was recorded on 21.3.2012 basing the same on case diary extract.",,,,

Statement of Mrs. Priya Udupi is produced along with the application filed by the petitioners in the writ petitions on 9.9.2015. It clearly indicates the,,,,

date as 7.3.2012. Therefore, it cannot be concluded that her statement was recorded on 21.3.2012 on the basis of extract of case diary.",,,,

26. Mrs. Priya Udupi was the earlier employee of Christy Fried Gram Industry and she was dismissed from service. Based on the above materials the,,,,

FIR came to be registered on 8.3.2012 before Karnataka Lokayuktha Police, Bangalore. There is about 18 months' investigation prior to registration of",,,,

F.I.R.,,,,

27. It is true, Lokayukta has got suo motto power under Section 9(3) of Karnataka Lokayukta Act to investigate a matter on any complaint or on any",,,,

information. Rule 5(3) of Karnataka Lokayukta Act specifies, all complaints, even if it is not submitted in the prescribed format shall be placed before",,,,

Lokayukta or Upa Lokayukta as the case may be. In the instant case, no such procedure is adopted, instead, the Lokayukta Police themselves",,,,

assumed jurisdiction and started enquiry against the above legal provisions.,,,,

28. It is the contention of the Lokayukta, they had conducted discrete preliminary enquiry to ascertain the truth. Prior to the pronouncement of",,,,

judgment in Lalita Kumari vs., Government of U P & others, (2014) 2 SCC 1, there is neither any provision under Code of Criminal Procedure nor any",,,,

settled law providing for conducting preliminary enquiry. However, after the pronouncement in the above case, preliminary enquiry can be conducted",,,,

not exceeding 7 days. In this regard, reliance is placed on the decision in State of UP vs., Bhagwant Kishore Joshi, AIR 1964 SC 221. In para 8 of the",,,,

judgment itself, the investigation stated to consist the following steps:",,,,

i. Proceeding to the spot,",,,,

ii. Ascertainment of the facts and circumstances of the case,",,,,

iii. Discovery and arrest of the suspected offender.,,,,

iv. Collection of evidence.,,,,

v. Formation of opinion.""",,,,

In the instant case, Dy. S.P Radhamani conducted the investigation, made note, collected documents and submitted report and further investigation",,,,

was taken over by Mr. Anilkumar who seized the documents from DWCD and recorded the statement of Ms. Priya Udupi, which does not fall under",,,,

the definition of preliminary enquiry. The preliminary enquiry is to be without questioning any witness and without making any notes from the,,,,

documents seized.,,,,

29. The learned counsel for the petitioners placed reliance on decision in Rajeevan vs., State of Kerala reported in CD J 2003 SC 323. The relevant",,,,

portion in Para-12 of the judgment is to the following effect:,,,,

Delay in lodging FIR quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of",,,,

the advantage of spontaneity, danger creeps in of the introducing of coloured version exaggerated account, concocted story as a result of deliberation",,,,

and consultation.""",,,,

30. The petitioners in the writ petitions placed reliance on decision in Lalita Kumari vs., State of U.P. & others (2014) 2 SCC 1 and contended that",,,,

registration of F.I.R before conducting investigation is mandatory. The Hon'ble Supreme Court dealt with a direct question in the aforesaid decision,,,,

that, whether a police officer is bound to register a first information report upon receiving any information relating to commission of a cognizable",,,,

offence under Section 154 of Code of Criminal Procedure, 1973 or the police officer has the power to conduct a 'preliminary inquiry' in order to test",,,,

the veracity of such information before registering the same. The Supreme Court took note of observation of the Committee on Reforms of Criminal,,,,

Justice System in Para-102 which is as follows:,,,,

7.19.1 According to the Section 154 of the Code of Criminal Procedure the officer incharge of the police station is mandated to register every",,,,

information oral or written relating to the commission of cognizable offence. Non registration of cases is a serious complaint against the police.,,,,

Besides, the complainant gets an opportunity to consult his friends, relatives and sometimes even lawyers and often tend to exaggerate the crime and",,,,

implicate innocent persons. This eventually has the adverse effect at the trial. The information should be reduced in writing by the SH, if given orally,",,,,

without any loss of time so that the first version of the alleged crime comes on record.,,,,

7.20.11 It has come to the notice of the Committee that even in cognizable cases quite often the police officers do not entertain the complaint and send,,,,

the complainant away saying that the offence is not cognizable. Sometimes, the police twist facts to bring the case within the cognizable category even",,,,

though it is non cognizable, due to political or other pressures or corruption. This menace can be stopped by making it obligatory on the police officer to",,,,

register every complaint received by him. Breach of this duty should become an offence punishable in law to prevent misuse of the power by the,,,,

police officer.""",,,,

The Hon'ble Supreme Court has held in Para-120.7 that while ensuring and protecting the rights of the accused and the complainant, a preliminary",,,,

inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the,,,,

General Diary entry. It is further held in Para-120.8 that since the General Diary/Station Diary/Daily Diary is the record of all information received in,,,,

a police station, Supreme Court directed that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an",,,,

inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected.",,,,

31. The learned counsel for the petitioners placed reliance on the decision in L Shankar Murthy & others vs., State by Lokayuktha Police, reported in",,,,

2012(5) Kar.L.J. 545 where this Court has dealt with the effect of investigation prior to registration therein. Paras-33, 35, 45 and 46 read as follows:",,,,

33. The scheme of Cr P C also makes it clear that, Section 157 of Cr PC gives power to the police officer to take up investigation only after sending",,,,

a report to the Magistrate, and power to take cognizance of such offence where the officer concerned, from the information received or otherwise,",,,,

has reason to suspect the commission of an offence which he is empowered to investigate under Section 156 of Cr P C, he shall follow the",,,,

requirements of Section 157 before embarking upon the investigation. It is, therefore, clear from the aforesaid provisions of Cr P C that the police",,,,

officer concerned cannot proceed with the investigation without first registering the case upon the information received by him.,,,,

35. In the light of the foresaid position in the law laid down by the Apex Court in particular in the aforementioned cases, the entire proceeding leading",,,,

to conducting the seizure panchanama even without registering the cases as required under Section 154 of the Cr.P.C. is illegal, contrary to law and is",,,,

in violation of the mandatory provisions of the Cr.P.C. and the act on the part of the Police Officer concerned is nothing but an act which could be,,,,

termed as abuse of the process of law.,,,,

45.....as of now, the settled position in law is registering the case upon the information received is sine qua non before proceeding to take up the",,,,

investigation.,,,,

46. Thus, the entire procedure followed by the concerned Police Officer is an abuse of the process of law and, therefore, I have no hesitation in",,,,

agreeing with the contentions put forward by the learned Counsel for the petitioners that these cases are fit enough to be brought within the rarest of,,,,

rare cases and in order to prevent abuse of the process of law and to meet the ends of justice, exercise of inherent power conferred under Section",,,,

482 of the Cr.P.C, therefore, becomes imperative and inevitable"".",,,,

32. It is to be mentioned here that the aforesaid Shankaramoorthy case was challenged by the Lokayuktha police before the Hon'ble Supreme Court,,,,

and the Apex court declined to interfere.,,,,

33. The petitioners further placed reliance on the decision in Girishchandra & another v. State of Lokayuktha Police, Yadgir, reported in 2013(5) Kar.",,,,

L.J. 470 (DB) and the Hon'ble Division Bench of this Court has held as follows:,,,,

S. No.,Name of the Investigating Officer,Designation,Date of investigation,Entrustment Order

01.,Mohammad Ashraf Lone,"Deputy Superintendent of

Police",18.12.2012- 26.03.2013,"N o . SSP-VOK-FIR3368-69 date

18.12.2012

02.,Khurshid Ahmad No. 4476/NGO,Inspector,26.03.2013- 18.12.2013,No. SSP/SLK/VOK3460-62

03.,Ab. Rashid No. 173/SVO,Selection Grade Constable,31.12.2012,No. SSP/SLK/VOK3460-62

04.,Imtiyaz Ahmad,Inspector,"Not traceable from the Case

Diary",Not traceable from the Case Diary

05.,Mohammad Shafi,"Deputy Superintendent of

Police",02.05.2017,"N o . SSP/SLKVOK/17/1705 date

02.05.2017

06.,Imtiyaz Ahmad (Second time entrusted),Inspector,06.06.2017,No. SSP/SLKVOK/17/166-67

counsel himself. It will be convenient for deliberation to reproduce Section 3 of the PC Act (amended vide The Prevention of Corruption Amendment,,,,

Act, 2014, Act No. VIII of 2014), which is reproduced as under:",,,,

“3. Offences to be cognizable and Non-bailable,,,,

Notwithstanding anything to the contrary in the Code of Criminal Procedure all offences punishable under this Act, shall be cognizable and non-",,,,

bailable:,,,,

Provided that no Police Officer below the rank of the Deputy Superintendent of Police shall investigate any such offence without the order of a,,,,

Magistrate of the First Class or make any arrest thereof without a warrant.,,,,

Provided further that if an officer of the Vigilance Organization of and above the rank of a Sub-Inspector of the Vigilance Organization is specially,,,,

authorized in writing by an officer of Vigilance Organization not below the rank of an Assistant Superintendent of Police to investigate such offence,",,,,

such officer may investigate the offence so specified in the order of authorization. But such officer shall not be competent to arrest any person during,,,,

such investigation, unless a Police Officer not below the rank of a Deputy Superintendent of Police authorizes such arrest under Section 56 of the",,,,

Code of Criminal Procedure, Samvat 1989.â€​",,,,

11.3 The import of Section 3 can be better understood if trifurcated; the opening provision followed by two provisos. Firstly the opening language of,,,,

the section creates a procedure of investigation which does not fall within the ambit of Cr.P.C. because of the non obstante clause. Secondly the first,,,,

proviso bars all police officers from investigating any offence under the PC Act except the ones which qualify the conditions of the proviso. It disables,,,,

all police officers below the rank of a Deputy Superintendent of Police (Dy.S.P.) to investigate. The Dy.S.P. for the purpose of the first proviso is a,,,,

designated police officer. But the Dy.S.P. also cannot investigate suo moto after the registration of FIR, without the order of a Magistrate. Meaning",,,,

thereby, that even the Dy.S.P. is barred from investigating any offence under the PC Act unless otherwise authorized by the Magistrate. Thirdly there",,,,

is an exception to the first proviso. It states that a non-designated police officer of and above the rank of a Sub-Inspector of only the Vigilance,,,,

Organization can also investigate provided that he must be specially authorised by an officer of Vigilance Organisation not below the rank of Assistant,,,,

Superintendent of Police by way of a separate and a reasoned order. The object of the Section is to provide protection to public servants from,,,,

investigation by petty or lower rank police officers. So to utilize this exceptional circumstance by entrusting investigation to a non-designated police,,,,

officer requires caution and must not be resorted to perfunctorily as a matter of routine practice.,,,,

11.4 The Hon’ble Supreme Court in State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335 while discussing the importance of Section 5-A,,,,

which corresponds to our Section 3 of the PC Act, has held as follows:",,,,

“114. Section 5-A(1) of the Act with the relevant provisos reads thus: 5-A. Investigation into cases under this Act.â€" (1) Notwithstanding,,,,

anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), no police officer below the rank, â€"",,,,

(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;",,,,

(b) in the presidency towns of Calcutta and Madras, of an Assistant Commissioner of Police;",,,,

(c) in the presidency town of Bombay, of a Superintendent of Police; and",,,,

(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161, Section 165 or Section 165-A of the",,,,

Indian Penal Code (45 of 1860) or under Section 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the first class, as the",,,,

case may be, or make any arrest therefor without a warrant:",,,,

Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special,,,,

order, he may also investigate any such offence without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or",,,,

make arrest therefor without a warrant:,,,,

Provided further that an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a police officer,,,,

not below the rank of a Superintendent of Police.â€​,,,,

115. Section 5-A of the Act as it originally stood, was inserted by the Prevention of Corruption (Second Amendment) Act 59 of 1952 based on the",,,,

recommendations of the committee of Members of Parliament under the chairmanship of Dr Bakshi Tek Chand. The said section as it stands now,,,,

was substituted by Act 40 of 1964, the main object of which is to protect the public servant against harassment and victimization. (See State of M.P.",,,,

v. Mubarak Ali [1959 Supp 2 SCR 201 : AIR 1959 SC 707 : 1959 Cri LJ 921 : (1960) 1 LLJ 36] ). In A.C. Sharma v. Delhi Administration [(1973) 1,,,,

SCC 726 : 1973 SCC (Cri) 608 : (1973) 3 SCR 477] , Dua, J. said that the scheme of this provision is for effectively achieving the object of successful",,,,

investigation into the serious offences mentioned in Section 5 of the Act without unreasonably exposing the public servant concerned to frivolous and,,,,

vexatious proceedings. A Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak [(1984) 2 SCC 500 : 1984 SCC (Cri) 277 : (1984) 2 SCR,,,,

914, 941] at page 941 has observed that “Section 5-A is a safeguard against investigation of offences by public servants, by petty or lower rank",,,,

police officersâ€​.,,,,

116. According to Section 5-A, notwithstanding anything contained in the Code, no police officer below the rank specified in clauses (a) to (d) of",,,,

Section 5-A(1), shall investigate any offence punishable under Section 161, 165 or 165-A of the IPC or under Section 5 of the Act without the order of",,,,

a Presidency Magistrate or a Magistrate of the first class as the case may be or make arrest therefor without a warrant. There are two provisos to,,,,

that section. As per the first proviso, if a police officer not below the rank of an Inspector of Police is authorized by the State Government, either by",,,,

general or special order, he may investigate any such offence without the order of a Magistrate or make arrest therefore without a warrant.",,,,

According to the second proviso, an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a",,,,

police officer not below the rank of a Superintendent of Police.,,,,

117. It means that a police officer not below the rank of an Inspector of Police authorized by the State Government in terms of the first proviso can,,,,

take up the investigation of an offence referred to in clause (e) of Section 5(1) only on a separate and independent order of a police officer not below,,,,

the rank of a Superintendent of Police. To say in other words, a strict compliance of the second proviso is an additional legal requirement to that of the",,,,

first proviso for conferring a valid authority on a police officer not below the rank of an Inspector of Police to investigate an offence falling under,,,,

clause (e) of Section 5(1) of the Act. This is clearly spelt out from the expression “further providedâ€​ occurring in the second proviso.,,,,

118. A conjoint reading of the main provision, Section 5-A(1) and the two provisos thereto, shows that the investigation by the designated police",,,,

officer is the rule and the investigation by an officer of a lower rank is an exception.,,,,

119. It has been ruled by this Court in several decisions that Section 5-A of the Act is mandatory and not directory and the investigation conducted in,,,,

violation thereof bears the stamp of illegality but that illegality committed in the course of an investigation does not affect the competence and the,,,,

jurisdiction of the court for trial and where the cognizance of the case has in fact been taken and the case is proceeded to termination, the invalidity of",,,,

the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. See (1) H.N. Rishbud and Inder Singh v.,,,,

State of Delhi [(1955) 1 SCR 1150 : AIR 1955 SC 196 : 1955 Cri LJ 526] ; (2) Major E.G. Barsay v. State of Bombay [(1962) 2 SCR 195 : AIR 1961,,,,

SC 1762 : (1961) 2 Cri LJ 828] ; (3) Munna Lal v. State of Uttar Pradesh [(1964) 3 SCR 88 : AIR 1964 SC 28 : (1964) 1 Cri LJ 11] ; (4) S.N. Bose v.,,,,

State of Bihar[(1968) 3 SCR 563 : AIR 1968 SC 1292 : 1968 Cri LJ 1484] ; (5) Muni Lal v. Delhi Administration [(1971) 2 SCC 48 : 1971 SCC (Cri),,,,

407] and (6) Khandu Sonu Dhobi v. State of Maharashtra [(1972) 3 SCC 786 : 1972 SCC (Cri) 854 : (1972) 3 SCR 510] . However, in Rishbud case",,,,

[(1955) 1 SCR 1150 : AIR 1955 SC 196 : 1955 Cri LJ 526] and Muni Lal case [(1971) 2 SCC 48 : 1971 SCC (Cri) 407] , it has been ruled that if any",,,,

breach of the said mandatory proviso relating to investigation is brought to the notice of the court at an early stage of the trial, the court will have to",,,,

consider the nature and extent of the violation and pass appropriate orders as may be called for to rectify the illegality and cure the defects in the,,,,

investigation.,,,,

120. Coming to the facts of the present case under consideration, the investigation did not proceed and could not be proceeded with, since the High",,,,

Court by an interlocutory order restrained the investigation even at the initial stage, i.e. on the date when rule nisi was issued in the writ petition.",,,,

Therefore, it is the appropriate stage for examination of the question as to whether the necessary",,,,

requirements contemplated under Section 5-A(1) in permitting the Inspector of Police, are strictly complied with or not.",,,,

121. For the proper understanding of the reasoning which we would like to give touching the question of the validity of the authority of appellant 3, we",,,,

would like to reproduce the Government Order dated July 26, 1975 which reads as follows:",,,,

“Haryana Government,",,,,

Home Department,",,,,

ORDER No. 4816-3H-75/22965July 26, 1975",,,,

Conferred by the first proviso to sub-section (1) of Section 5-A of the Prevention of Corruption Act, 1947, the Governor of Haryana hereby authorizes",,,,

all the Inspectors of Police under the administrative control of the Inspector General of Police, Haryana to investigate offences under Section 5 of the",,,,

said Act.,,,,

S.D. Bhandari,,,,

Secretary to Government, Haryana",,,,

Home Departmentâ€​,,,,

122. The subsequent Government Order dated April 19, 1988 is on the same lines of the above government order.",,,,

123. On the strength of the above government order of 1975, it has been rightly contended that appellant 3 (Inspector of Police), though not a",,,,

designated officer has been legally authorised by the State Government in exercise of its powers under the first proviso of Section 5-A(1) to,,,,

investigate the offences falling under Section 5 of the Act, namely, the offences enumerated in clauses (a) to (e) of Section 5(1) of the Act.",,,,

124. Now what remains for consideration is whether there is any valid order of the SP permitting appellant 3 to investigate the offence falling under,,,,

clause (e) of sub-section (1) of Section 5. As we have already mentioned in the earlier part of this judgment, the SP (appellant 2) has given the one",,,,

word direction on November 21, 1987 ‘investigate’. The question is whether the one word direction ‘investigate’ would amount to an",,,,

‘order’ within the meaning of second proviso of Section 5 2DA(1).,,,,

125. In H.N. Rishbud case [(1955) 1 SCR 1150 : AIR 1955 SC 196 : 1955 Cri LJ 526] at page 1165 while examining the order of a Magistrate,,,,

contemplated under Section 5-A(1), it has been observed: (SCR p. 1165)",,,,

“When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for,,,,

authorising an officer of a lower rank to conduct the investigation. The granting of such permission is not to be treated by a Magistrate as a mere,,,,

matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it. In our opinion, therefore, when such a breach is",,,,

brought to the notice of the court at an early stage of the trial the court will have to consider the nature and extent of the violation and pass appropriate,,,,

orders for such re-investigation as may be called for, wholly or partly ….â€​",,,,

126. The above dictum has been approved in Mubarak Ali case [1959 Supp 2 SCR 201 : AIR 1959 SC 707 : 1959 Cri LJ 921 : (1960) 1 LLJ 36] , the",,,,

facts of which disclose that the District Magistrate before whom an application was submitted by the Sub-Inspector seeking permission under Section,,,,

5-A passed the order reading “permission grantedâ€. Subba Rao, J. as he then was while speaking for the bench disapproved such casual order",,,,

and expressed that the Magistrate did not realise the significance of this order giving permission but only mechanically issued the order and stated thus:,,,,

(SCR p. 210),,,,

“… in a case where an officer other than the designated officer, seeks to make an investigation, he should get the order of a Magistrate",,,,

empowering him to do so before he proceeds to investigate and it is desirable that the order giving the permission should ordinarily, on the face of it,",,,,

disclose the reasons for giving the permission.â€​,,,,

127. Hegde, J. in S.N. Bose case [(1968) 3 SCR 563 : AIR 1968 SC 1292 : 1968 Cri LJ 1484] following the maxim in Mubarak Ali case [1959 Supp 2",,,,

SCR 201 : AIR 1959 SC 707 : 1959 Cri LJ 921 : (1960) 1 LLJ 36] has expressed his opinion in the following words: (SCR p. 568),,,,

“It is surprising that even after this Court pointed out the significance of Section 5-A in several decisions there are still some Magistrates and police,,,,

officers who continue to act in a casual manner. It is obvious that they are ignorant of the decisions of this Court.â€​,,,,

128. The conspectus of the above decisions clearly shows that the granting of permission under Section 5-A authorising an officer of lower rank to,,,,

conduct the investigation is not to be treated by a Magistrate as a mere matter of routine, but it is an exercise of his judicial discretion having regard to",,,,

the policy underlying and the order giving the permission should, on the face of it, disclose the reasons for granting such permission. It is, therefore,",,,,

clear in the light of the above principle of law that the Superintendent of Police or any police officer of above rank while granting permission to a non-,,,,

designated police officer in exercise of his power under the second proviso to Section 5-A(1), should satisfy himself that there are good and sufficient",,,,

reasons to entrust the investigation with such police officer of a lower rank and record his reasons for doing so; because the very object of the,,,,

legislature in enacting Section 5-A is to see that the investigation of offences punishable under Section 161, 165 or 165-A of Indian Penal Code as well",,,,

as those under Section 5 of the Act should be done ordinarily by the officers designated in clauses (a) to (d) of Section 5-A(1). The exception should,,,,

be for adequate reasons which should be disclosed on the face of the order. In this connection, it is worthy to note that the strict compliance with",,,,

Section 5-A(1) becomes absolutely necessary, because Section 5-A(1) expressly prohibits police officers, below certain ranks, from investigating into",,,,

offences under Sections 161, 165 and 165-A, IPC and under Section 5 of the Act without orders of Magistrates specified therein or without",,,,

authorisation of the State Government in this behalf and from effecting arrests for those offences without a warrant. See also A.C. Sharma v. Delhi,,,,

Administration [(1973) 1 SCC 726 : 1973 SCC (Cri) 608 : (1973) 3 SCR 477] .,,,,

129. In the present case, there is absolutely no reason, given by the SP in directing the SHO to investigate and as such the order of the SP is directly",,,,

in violation of the dictum laid down by this Court in several decisions which we have referred to above. Resultantly, we hold that appellant 3, SHO is",,,,

not clothed with the requisite legal authority within the meaning of the second proviso of Section 5-A(1) of the Act to investigate the offence under,,,,

clause (e) of Section 5(1) of the Act.â€​,,,,

11.5 The object of Section 5A (corresponding provision of Section 3 of J&K PC Act) came up for consideration before the Constitution Bench of the,,,,

Hon’ble Supreme Court in A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC 500which held as follows:",,,,

“21. The sheet-anchor of the submission was the decision of this Court in H.N. Rishbud and Inder Singh v. State of Delhi [AIR 1955 SC 196 :,,,,

1955) 1 SCR 1150 : 1955 Cri LJ 526] . In that case the question posed was whether the provision of Section 5-A of the 1947 Act requiring that the,,,,

investigation into the offences specified therein shall not be conducted by any police officer of a rank lower than a Deputy Superintendent of Police,,,,

without the specific order of a Magistrate, is directory or mandatory? The Court rendered the opinion that Section 5-A is mandatory and not directory,",,,,

and that an investigation conducted in violation thereof bears the stamp of illegality. Thus so far as investigation of a case is concerned, this Court has",,,,

recorded a definite opinion that investigation by a police officer in contravention of the provision contained in Section 5-A bears the stamp of illegality.,,,,

What is the effect of this illegality on the outcome of a concluded trial does not arise for our consideration but there are certain observations which,,,,

were relied upon to urge that a prior investigation under Section 5-A being held to be mandatory and as a Special Judge can take cognizance of an,,,,

offence upon a police report submitted at the end of a valid and legal investigation in consonance with Section 5-A, by necessary implication, taking",,,,

cognizance of an offence by a Special Judge under Section 8(1) of 1952 Act upon a private complaint is excluded. We must frankly say that we find,,,,

nothing in this judgment even remotely to bear out the submission. Section 5-A is a safeguard against investigation by police officers lower in rank than,,,,

designated officers. In this connection at p. 1159, the Court has observed as under:",,,,

“The underlying policy in making these offences by public servants non-cognizable appears to be that public servants who have to discharge their,,,,

functionsâ€"often enough in difficult circumstancesâ€"should not be exposed to the harassment of investigation against them on information levelled,",,,,

possibly, by persons affected by their official acts, unless a Magistrate is satisfied that an investigation is called for, and on such satisfaction authorises",,,,

the same. This is meant to ensure the diligent discharge of their official functions by public servants, without fear or favour. When, therefore, the",,,,

Legislature thought fit to remove the protection from the public servants, in so far as it relates to the investigation of the offences of corruption",,,,

comprised in the Act, by making them cognizable, it may be presumed that it was considered necessary to provide a substituted safeguard from undue",,,,

harassment by requiring that the investigation is to b conducted normally by a police officer of a designated high rank….â€​,,,,

This observation will leave no room for doubt that the safeguard incorporated in Section 5-A is one against investigation by police officer of a rank,,,,

lower than the designated rank and that the Magistrate can permit investigation by police officer of lower rank. It was however, urged that the three",,,,

vital stages relevant to initiation of proceedings in respect of offences enumerated in Section 6(1)(a) and (b) have been clearly delineated in this,,,,

judgment when at p. 1162 it is observed: “trial follows cognizance and cognizance is preceded by investigationâ€. This is the basic scheme of the,,,,

Code in respect of cognizable offences but that too where in respect of a cognizable offence, the informant approaches an officer in charge of a",,,,

police station. When in the case of a cognizable offence, a police officer on receipt of information of an offence proceeds under Chapter XII, he starts",,,,

with investigation and then submits his report, called the police report, upon which cognizance is taken, and then follows the trial. And these three",,,,

stages in that chronology are set out with regard to an investigation by an officer in charge of a police station or a police officer entitled to investigate,,,,

any particular offence. This sentence cannot be read in isolation or torn out of the context to lend support to the submission that in no case cognizance,,,,

can be taken without prior investigation under Section 5-A. In fact the Court proceeded to make it abundantly clear that “a defect or illegality in,,,,

investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trialâ€. The Court examined the",,,,

scheme of Sections 190, 193 and 195 to 199 of the Code of Criminal Procedure and observed: that “the language of Section 190 is in marked",,,,

contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the,,,,

competence of the court and bar its jurisdiction in certain cases excepting in compliance therewith, Section 190 does notâ€. The Court concluded by",,,,

observing “that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent",,,,

investigation does not vitiate the result, unless miscarriage of justice has been caused therebyâ€. Having minutely read this judgment on which firm",,,,

reliance was placed on behalf of the appellant, we find nothing in it to come to the conclusion that an investigation under Section 5-A is a condition",,,,

precedent before cognizance can be taken of offences triable by Special Judge. Reliance next was placed upon the decision of this Court in State of,,,,

M.P. v. Mubarak Ali [AIR 1959 SC 707 : 1959 Supp (2) SCR 201 : 1959 Cri LJ 920] . This Court held that Section 5-A was inserted in the 1952 Act,,,,

to protect the public servants against harassment and victimization. If it was in the interest of the public that corruption should be eradicated, it was",,,,

equally in the interest of the public that honest public servants should be able to discharge their duties free from false, frivolous and malicious",,,,

accusations. To achieve this object, Sections 5-A and 6 introduced the two safeguards: (1) no police officer below the rank of a designated police",,,,

officer, shall investigate any offence punishable under Section 161, Section 165 or Section 165-A of the Indian Penal Code or under sub-section (2) of",,,,

Section 5-A of the 1947 Act without the order of a Presidency Magistrate and (2) no court shall take cognizance of offences hereinabove enumerated,,,,

except with the previous sanction, of the appropriate Government. The Court held that these statutory safeguards must be complied with, for they",,,,

were conceived in public interest and were provided as a guarantee against frivolous and vexatious prosecutions. The Court further observed that the,,,,

Legislature was prepared to believe an officer of an assured status implicitly, and it prescribed an additional guarantee that in the case of police",,,,

officers below the rank, the previous order of a Presidency Magistrate or a Magistrate of the first class as the case may be. Comes thereafter a",,,,

pertinent observation “that the Magistrate's†status gives assurance to the bona fides of the investigationâ€. This would rather show that,,,,

Legislature while on the one hand conferred power on the police officers of the designated rank to take upon themselves the investigation of offences,,,,

committed by public servants, it considered intervention of the Magistrate as the real safeguard when investigation was permitted by officers lower in",,,,

rank than the designated officers. In other words, the Court was a safeguard and it ought to be so because the judicially OWP No. 1259/2015 Page 57",,,,

of 65 trained mind is any day a better safeguard than any police officer of any rank. In State of U.P. v. Bhagwant Kishore Joshi [AIR 1964 SC 221 :,,,,

(1964) 3 SCR 71 : (1964) 1 Cri LJ 1140] the observation of the Court in Mubarak Ali case [AIR 1968 SC 1292 : (1968) 3 SCR 563 : 1964 1 Cri LJ,,,,

1484] was affirmed. In S.N. Bose v. State of Bihar [(1970) 1 SCC 595 : AIR 1971 SC 520 : (1970) 3 SCR 931] this Court held that the order of the,,,,

Magistrate giving permission to the Inspector of Police to investigate the case did not give any reasons and there was thus a violation of Section 5-A.,,,,

Yet this illegality committed in the course of an investigation does not affect the competence and jurisdiction of the court for trial and where,,,,

cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investigation does not vitiate,,,,

the result unless the miscarriage of justice has been caused thereby, and in reaching this conclusion reliance was placed on the case of H.N. Rishbud",,,,

[AIR 1955 SC 196 : 1955) 1 SCR 1150 : 1955 Cri LJ 526] . In P. Sirajuddin v. State of Madras [AIR 1957 MB 43 : 1957 Cri LJ 184] it was held that,,,,

the Code of Criminal Procedure is an enactment designed inter alia to ensure a fair investigation of the allegations against a person charged with,,,,

criminal misconduct. This is undeniable but has hardly any relevance. Some guidance is given to the enquiry officer and the means to be adopted in,,,,

investigation of offences. This has no bearing on the issue under discussion. Reference was also made to Union of India v. Mahesh Chandra[AIR,,,,

1957 MB 43 : 1957 Cri LJ 184] which does not advance the case at all. Having carefully examined these judgments in the light of the submissions,,,,

made, the only conclusion that unquestionably emerges is that Section 5-A is a safeguard against investigation of offences committed by public",,,,

servants, by petty or lower rank police officer. It has nothing to do directly or indirectly with the mode and method of taking cognizance of offences by",,,,

the Court of Special Judge. It also follows as a necessary corollary that provision of Section 5-A is not a condition precedent to initiation of,,,,

proceedings before the Special Judge who acquires power under Section 8(1) to take cognizance of offences enumerated in Section 6(1)(a) and (b),",,,,

with this limitation alone that it shall not be upon commitment to him by the Magistrate.â€​,,,,

11.4 From the above discussion a number of essential requirements of Section 3 PC Act come to fore which are as follows:,,,,

i. There must be an authorization order by a Magistrate in,,,,

favour of a particular designated police officer of the rank of a Dy.S.P. or above.,,,,

ii. If in departure to above an investigation is sought to be carried out by a non designated police officer of the vigilance organization, of and above the",,,,

rank of a Sub-Inspector of Police, then there must be a separate reasoned entrustment order by a police officer of the Vigilance Organization not",,,,

below the rank of Assistant Superintendent of Police.,,,,

iii. Following the entrustment to a non-designated police officer there must be a reasoned authorization order enabling the non designated police officer,,,,

to investigate. The grant of permission to a non designated police officer is not to be treated customarily as a matter of routine by the Magistrate but in,,,,

exercise of judicial discretion and a conscientious judicial order.,,,,

11.5 From the perusal of the case diaries, I did not find authorization order of the Magistrate granting permission of investigation to Mohammad",,,,

Ashraf Lone, Dy.S.P., who was entrusted with the investigation of the impugned FIR at the commencement of investigation. What is more bothering",,,,

is the frequency with which the investigating officers have been changed in the instant case. There are entrustment orders in favour of non-designated,,,,

police officers without any recorded reasons. The practice of resorting to this statutory exception should have been exercised with caution. However,",,,,

in the instant case, it has become a matter of routine. The Vigilance Organization has been everything but vigilant while dealing with the requirements",,,,

of Section 3. The permission granted by a Magistrate to a designated investigating officer is granted to his personal capacity and every time there is,,,,

change of the designated investigating officer, a separate permission must be sought. Same goes for the non-designated police officer. However, to",,,,

allow this exception the Magistrate must pass a reasoned order. In the instant case, the Vigilance Organization while entrusting the investigation to",,,,

numerous non-designated police officers has only obtained permission in favour of Inspector Imtiyaz Ahmad. The entrustment order in his favour was,,,,

passed by Sr. Superintendent of Police vide order No. SSP/SLK-VOK/17/2166-67 dated 06.06.2017. The permission of Learned Special Judge Anti-,,,,

Corruption was granted vide order dated 05.06.2017 passed in FIR No. 33/2012. The order of the Learned Special Judge Anti-Corruption is,,,,

reproduced hereunder:,,,,

“By this motion, applicant has sought the indulgence of this court for permission to hand-over the investigation of the case FIR No. 33/2012 to an",,,,

officer of the rank of Inspector on the ground dearth of officers of the rank Dy.SP posted in the VOK. It is submitted that only Dy.SP posted in,,,,

VOK, is investigating a number of cases of serious nature, as such, is not in a position to do justice with the instant matter.",,,,

Heard SPO and perused the application and order of this court dated 13.08.2012 by virtue of which directions were issued that matter be investigated,,,,

not below the rank of Dy.SP. The difficulty projected appears to be genuine since the further investigation has not been concluded even after the,,,,

lapse of about five years. In view of the difficulty projected by the SSP (SHO) VOK, he is permitted to hand-over the investigation to an officer of the",,,,

rank of Inspector forthwith and is further directed to conclude the same at the earliest preferably within three months time. The application is disposed,,,,

of accordingly and shall be consigned to records after due compilation.â€​,,,,

11.6 The situation at hand is dichotomous. The date of entrustment order to Inspector Imtiyaz Ahmad is 06.06.2017 whereas the permission to the,,,,

Inspector was granted by the Learned Special Judge Anticorruption a day before he was entrusted with the investigation on 05.06.017. The scheme of,,,,

Section 3 provides that a police officer must be entrusted with the investigation first and then the permission from the Magistrate is to be sought. In the,,,,

instant case the contrary has happened. The Learned Special Judge has granted permission to Inspector Imtiyaz Ahmad on the day he was not,,,,

clothed with the authority to investigate. Meaning thereby, on 05.06.2017 he was not entrusted with the authority under section 3 of the PC Act.",,,,

Ironically the entrustment order was passed a day after the permission by the Magistrate was granted. Therefore the only effort by the Vigilance,,,,

Organization to obtain requisite permission from the Magistrate is in vain for the non application of mind of the Learned Special Judge Anticorruption,,,,

has granted permission to an officer who is alien to the investigation for the purpose of Section 3.,,,,

11.7. Therefore the entire investigation right from the inception is rendered illegal for the failure of the investigating agency to comply with the,,,,

mandatory provision of Section 3 of the PC Act.,,,,

11.8 Another important aspect of the instant case is the interim direction that was passed on 23.07.2015. The interim direction is reproduced in,,,,

paragraph 4 above. From the perusal of the interim direction it becomes manifest that any further proceedings from the date of the order were,,,,

interdicted. Despite the direction of this Hon’ble Court, the Vigilance Organization has still gone ahead with the investigation. From the perusal of",,,,

the case diary it came to fore that the Investigating Officer Mushtaq Ahmad (Dy.S.P., SLK) on 19.04.2016 has made a remorseful observation in the",,,,

Case Diary that the previous investigating officer had still gone ahead with the investigation which constituted contempt of court. The conduct of the,,,,

investigating agency is reprehensible and impairs the confidence of this Court with which the affairs of investigation have been conducted.,,,,

12. On the basis of facts of the case and the position of law as discussed above, I therefore hold as under:",,,,

i. A Magistrate is precluded from exercising his jurisdiction in any manner against a public servant in any criminal proceeding not just under Chapter,,,,

XV but also under Chapter XIV of the Criminal Procedure Code, in absence of a valid sanction for prosecution and it attracts within its fold the",,,,

proceedings under Section 156 (3) of the Criminal Procedure Code.,,,,

ii. The investigation for offence under Section 120-B (2), without a sanction of Magistrate under Section 155 Cr.P.C. is illegal.",,,,

iii. The Preliminary Verification must be carried out in the light of the direction of the Constitution Bench of the Hon’ble Supreme Court in Lalita,,,,

Kumari’s (supra) case.,,,,

iv. Investigation under the Prevention of Corruption Act, Svt. 2006 is not laissez-aller but controlled by the mandatory provisions of Section 3 of the",,,,

Act and there must be permission granted by the Magistrate to a designated police officer under Section 3 of the Jammu & Kashmir Prevention of,,,,

Corruption Act, Svt. 2006 for commencement of investigation. Every time the investigating officer is replaced by a new one, such permission must be",,,,

obtained again at the occasion of replacement. Absence of this permission renders the investigation void ab initio.,,,,

v. There must be separate and reasoned order of entrustment of Investigation to a non designated police officer of the vigilance organization, of and",,,,

above the rank of a Sub-Inspector of Police, by a police officer of the Vigilance Organization not below the rank of Assistant Superintendent of",,,,

Police.,,,,

vi. Investigation by a designated police officer of and above the rank of a Deputy Superintend of Police is the rule and by a non-designated police,,,,

officer of and above the rank of a Sub-Inspector is an exception. Entrustment order to a non-designated police officer must be followed by grant of,,,,

permission by a Magistrate.,,,,

vii. The grant of permission to a non-designated police officer is not to be as a matter of normal course by the Magistrate but in exercise of judicial,,,,

discretion, must pass a reasoned order for allowing the exceptional mode of investigation by a non-designated police officer.",,,,

13. Directions:,,,,

I. I, therefore in exercise of the inherent powers under Section 561-A Cr.P.C. to secure the ends of justice, quash the order passed by the Learned",,,,

Special Judge Anti-Corruption, Srinagar, under Section 156(3) Criminal Procedure Code dated 13.08.2012, in FIR no. 33/2012 Police Station, Vigilance",,,,

Organization Kashmir, as being without application of mind.",,,,

II. In the above circumstances, the Preliminary Verification no. 12/2012, the impugned FIR No. 33/2012, Police Station, Vigilance Organization",,,,

Kashmir, and the resultant investigation of the FIR is hereby quashed, as being illegal.",,,,

III. As a corollary, I also quash the order passed by the Learned Special Judge, Anticorruption dated 05.06.2017 as also being without due application",,,,

of mind.,,,,

14. The record produced by Mr. N. H. Shah, learned AAG, for perusal of the Court is returned to him in the open Court. However, the record that",,,,

was produced was in the most disorganized fashion, despite that I prefer to chose reticence over reprimand.",,,,

15. The petition is allowed as above. However, there will be no order as to costs.",,,,