Uday Pratap Sharma vs State of M.P.

Petitioner has filed this petition u/s 482 of Cr.P.C. for quashing the complaint filed by respondent No. 2 (Annexure P/1) and order dated 11/12/2012 passed by the Special Judge under Prevention of Corruption Act, Gwalior and the consequent F.I.R. lodged (Annexure P/2) passed in complaint case (Manish Gupta Vs. M/s. Uday Pratap and Others).

The matrix lies in a narrow compass whether the Special Judge/Magistrate is justified in referring a private complaint made u/s 200 Cr.P.C. for investigation to the Lokayukt Police, in exercise of powers conferred u/s 156 (3) of Cr.P.C. without the production of valid sanction order u/s 19 of the Prevention of Corruption Act, 1988?

The respondent No. 2 filed a complaint u/s 200 of Cr.P.C. before the Special Judge (P.C. Act, 1988), Gwalior, under Sections 7,8, 9 and 13(6)(c)(d)(e) of the Prevention of Corruption Act, 1988, read with Sections 167,107, 198, 201, 420, 465, 468, 471 and 120-B of IPC on 23.03.2011 before the Special Judge (P.C. Act) Gwalior, alleging certain grievous irregularities and false payment made to the beneficiaries without verifying the same. The petitioner is a journalist claimed to have come to the knowledge of the irregularities in the contract of the project of "Water Quality Control" named "Swarnrekha". The petitioner is arrayed as Accused No. 2. Other persons arrayed are Accused No. 3 G.S. Shrivastava is Ex-Chief Engineer. Accused No. 4 M.D. Naroliya, is Assistant Engineer and accused No. 5 is R.D. Tyagi, is a Retired Chief Engineer and accused No. 7 Rajendra Shrivastava, is a Charted Accountant.

On the basis of the complaint, the learned Special Judge (under the P.C. Act, 1988), on 11.12.2012 ordered to send a copy of the complaint to the Lokayut Police and called for a report. Pursuant to the same, the Lokayukt Police, Bhopal, lodged an F.I.R. registered Crime No. 14/13 on 29.1.2013. The case was consigned in the record room, by order dated 29.4.2014, with a direction that when the Lokayut Police files the report, the case may be called from the record room and proceed in accordance with law.

In this background, the present petition is to be adjudicated.

The scope of Section 156(3) Cr.P.C. came up for consideration before the Hon''ble Apex Court in several cases. The Apex Court in Maksud Saiyed Vs. State of Gujarat and Others, examined the requirement of the application of mind by the Magistrate before exercising jurisdiction u/s 156 and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) of Cr.P.C. or Section 200 Cr.P.C., the Magistrate is required to apply his mind. In such a case, the Special Judge cannot refer the matter u/s 156(3) against a public servant without a valid "sanctioned order". It has been clearly and unambiguously held by the Apex Court that the application of mind by the Magistrate should be reflected in the order. Mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant what wide with Magistrate to order investigation u/s 156(3) Cr.P.C. should be reflected in the order. Though, a detailed expression of his view is neither explained nor warranted.

A Special Judge under the P.C. Act, 1988 is deemed to be a Magistrate u/s 5(4) of the P.C. Act. Therefore, he can exercise, the powers of Magistrate under the Cr.P.C.

To make it very clear it may be mentioned here that when a private complaint is filed before the Magistrate he has two options:

(1) he may proceed to take cognizance of the offence u/s 190 Cr.P.C. or

(2) he may proceed further in enquiry or trial.

A Magistrate, who is competent to take cognizance may without taking cognizance u/s 190 Cr.P.C. direct an investigation u/s 156(3) Cr.P.C. The Magistrate is empowered u/s 190 Cr.P.C. to take cognizance has the power to refer a private complaint for investigation by the Police u/s 156(3) Cr.P.C.

Hon''ble the Supreme Court in Anil Kumar and Others Vs. M.K. Aiyappa and Another, has examined the legal position that whether the requirement of sanction is a precondition for ordering the investigation u/s 156(3) Cr.P.C., even at a pre-cognizance stage. It would be pertinent to mention here that a Special Judge considering the case to refer for investigation u/s 200 Cr.P.C., or 156(3) Cr.P.C., cannot refer the matter against the public servant without a valid sanction order.

The Hon''ble Supreme Court referred to an earlier decision rendered in General Officer Commanding Vs. CBI and Another, in which it has been held that,

"82. Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him..."

The principles laid down by the Hon''ble Supreme Court in the above referred judgments squarely applies to the facts of the present case. Therefore, we are inclined to allow the petition u/s 482 of Cr.P.C. and quash the order dated 11.12.2012. Consequently the F.I.R. of Crime No. 14/2013 dated 29.1.2013 of the Special Police Establishment, Bhopal, is also quashed. However, it is made clear that the Lokayukt Police may proceed with the case in accordance with law. We have not opined anything on the merits of the case.

With the aforesaid discussion, this petition stands disposed of.