Criminal Procedure Code 1973 156(3),190,197,200,204397,399 and 482

दण्ड प्रक्रिया संहिता, 1973 - धाराएं 156 (3), 190, 197, 200, 204, 397, 399 एवं 482

1.    धारा 156 (3) के  अंतर्गत अनुसंधान हेतु भेजना - अभिप्राय है –

a.    कि प्रथम वर्ग न्यायिक मजिस्ट्रेट संतुष्ट नहीं था कि परिवाद उस मामले में किसी संज्ञेय अपराध या अन्य अपराध कारित किया जाना प्रकट करता है;

b.   जहां प्रथम वर्ग न्यायिक मजिस्ट्रेट संतुष्ट था कि परिवाद के अभिकथन यद्यपि अभियुक्त व्यक्तियों के विरूद्ध प्रथम दृष्टया मामला गठित करते हैं परंतु ‘अधिक सावधानी’ परिवाद में आरोपित अभिकथनों की सत्यता सुनिश्चित करने की अपेक्षा करती है; और

c.   प्रथम वर्ग न्यायिक मजिस्ट्रेट का यह मत है कि अभिकथनों की सत्यता के आकलन हेतु उस मामले में दक्ष एवं निष्पक्ष अनुसंधान अभिकरण यथा पुलिस द्वारा अनुसंधान वांछनीय है।

2.   संज्ञान - पश्च अनुसंधान - इस प्रभाव का अंतिम प्रतिवेदन कि कोई अपराध गठित नहीं होता है - अभिकथन सिविल दायित्व प्रकट करते हैं – मजिस्ट्रेट द्वारा पुलिस प्रतिवेदन के विरूद्ध संज्ञान लेने हेतु आबद्धकर परिस्थितियों के संबंध में कारण, भले ही संक्षिप्त हों, दिये जाने चाहिए।

3.   आदेशिका निर्गत करने के निर्देश का आदेश - चुनौती - उपलब्ध विकल्प - अभियुक्त आक्षेपित आदेश को या तो-

a.    सत्र न्यायालय या उच्च न्यायालय के समक्ष पुनरीक्षण याचिका द्वारा; या

b.   दण्ड प्रक्रिया संहिता की धारा 482 के अतंर्गत उच्च न्यायालय की अंतर्निहित क्षेत्राधिकारिता का अवलम्ब लेकर चुनौती दे सकता है।

4.   दाण्डिक पुनरीक्षण - पुनरीक्षण न्यायालय केवल ‘कामन लॉ’ और ‘लिखित विधि’ की पृष्ठभूमि में आक्षेपित आदेश की सत्यता की जांच कर सकते हैं - इस आधार पर आक्षेपित आदेश अपास्त नहीं कर सकते कि यह परिवादी के दूषित आशय से प्रेरित था।

5.   अभियोजन के लिये स्वीकृति - विचार हेतु प्रक्रम - स्वीकृति की आवश्यकता प्रक्रम दर प्रक्रम विनिश्चित की जानी चाहिए - यदि अभिकथित कृत्य स्पष्ट रूप से लोक कर्तव्य के निर्वहन से संसक्त है - ऐसे मामलों में स्वीकृति संज्ञान लेने की पूर्व शर्त है - इसे बिल्कुल आरम्भ में ही विचार में लिया जा सकता है - आरोप विरचित होने तक आस्थगित नहीं किया जा सकता।

Malay Shrivastava & ors. v. Shankar Pratap Singh Bundela & anr. Order dated 14.09.2016 passed by the High Court of Madhya Pradesh in M.Cr.C. No. 1052/2008, reported in ILR (2017) MP 199

order:

1)    The Ld. Counsel for the Petitioners has laid a strong emphasis on the point that the order taking cognizance and the summons issued to the Petitioners to stand trial for offences are bad in law as no prior sanction u/s. 197 Cr.P.C has been placed before the JMFC by the Respondents. In support of his contention, the Ld. Counsel has placed reliance on the judgment of the Supreme Court passed in P.K.Choudhury v. Commander, 48 BRTF (GREF), (2008) 13 SCC 229, wherein the Supreme Court while dealing with a case arising from a complaint u/s. 200 Cr.P.C before the Judicial Magistrate where two points arose for consideration (i) whether an offence, the cognizance of which had been hit by limitation on account of the operation of Section 468 Cr.P.C, cognizance could have been taken by the Judicial Magistrate without condoning the delay? And (ii) whether the Magistrate could have taken cognizance of offences u/ss. 166 and 167 without sanction u/s. 197 Cr.P.C? As regards the instant case, it is only the second question that has been answered by the Hon’ble Supreme Court which is of relevance. In paragraph 12 of the said judgment, the Supreme Court held “Far more important however, is the question of non-grant of sanction. The appellant admittedly is a public servant. He is said to have misused his position as a public servant. Section 197 of the Code of Criminal Procedure lays down requirements for obtaining an order of sanction from the competent authority, if in committing the offence, a public servant acted or purported to act in discharge of his official duty. As the offences under Sections 166 and 167 of the Penal Code have a direct nexus with commission of a criminal misconduct on the part of a public servant, indisputably an order of sanction was prerequisite before the learned Judicial Magistrate could issue summons upon”. In the instant case also, undisputedly the Petitioners are all Public Servants and therefore, it was contended that the offences which have been taken cognizance of by the Ld. Trial Court by their very nature were such that (a) the same could only have been committed by a Public Servant and (b) the same could only have been committed by such Public Servant in the discharge of his official duties. It was therefore contended that the order taking cognizance and the issuance of process against the Petitioners u/s. 204 Cr.P.C were bad in law and so the entire proceedings against the Petitioners deserved to be quashed, as the continuation of the same would be a gross abuse of process.

2)   In a complaint case, where the JMFC, without taking cognizance refers the case to the police u/s. 156 (3) Cr.P.C, the same by necessary implication discloses (a) that the JMFC is not satisfied that the complaint, as filed, discloses the commission of a cognizable offence or any offence for that matter and (b) where the JMFC is satisfied that the allegations in complaint case though constitute a prima facie case against the accused persons but abundans cautela wants to ascertain the veracity of the allegations levelled in the complaint and is of the opinion that an investigation into the same by a qualified and neutral investigating agency 19 such as the police is desirable to assess the truth in the allegations. Therefore, where the police after investigation files a report to the effect that the complaint case does not disclose the commission of any offence and that the allegations only reveal a civil liability, there the Ld. JMFC is bound to give reasons, howsoever, brief they may be as to what are those compelling circumstances to take cognizance of the offences against the accused persons contrary to the police report. The Trial Court does not have to be elaborate while rejecting the police report but, at least, it is incumbent upon the Trial Court that its order, summoning the accused in such circumstances, reveals an application of mind as to why it was necessary to issue process to the accused persons when the police report filed after an investigation in compliance of the Trial Court’s order u/s. 156 (3) Cr.P.C revealed only a civil liability. In such a case, where the Trial Court wants to reject the police report which does not disclose the commission of any offence, a reasoned order revealing the application of mind on the part of the Trial Court, albeit a brief one, is the only safeguard against arbitrariness. This assumes great significance when seen in the light of the judgment of the Supreme Court in Pepsi Foods Ltd. and another v.  Special Judicial Magistrate and others, (1998) 5 SCC 749, wherein at paragraph 28, the Supreme Court held “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto”. In the facts of this case, the Ld. Trial Court, vide its order summoning the Petitioners dated 17/01/08, records that it has seen the complaint and all the documents filed therewith, the police report and the statement of the Respondent No.1 herein u/s. 200 Cr.P.C. In the next paragraph, the Ld. JMFC finds that on the basis of the above, there is adequate prima facie material to proceed against the Petitioners u/ss. 166 and 167 IPC and u/s. 120-B r/w 166 and 167 IPC. However, the said order is woefully silent on the aspect as to what was the material in the statement of the Respondent No.1 herein u/s. 200 Cr.P.C which compelled the Ld. Trial Court to reject the report of the police which stated that their investigation did not reveal the commission of any offence. Under the circumstances, I am inclined to hold that the order summoning the Petitioners dated 17/01/08 is deficient in material particulars and therefore the proceedings against the Petitioners is bad in law.

3)   X X X X X X

4)   Even otherwise, where the Doctrine of Election permits a person, having more than one option of seeking relief against the order of the Trial Court which summons him to stand trial as an accused exercising jurisdiction in a complaint case u/s. 204 Cr.P.C and where the options available under the law are mutually opposed to each other, the accused in such a situation can elect to either challenge the impugned order of the Trial Court by way of a revision petition before the Court of Sessions or the High Court u/s. 397 or 399 Cr.P.C as the case may be, or approach the High Court directly by invoking its inherent jurisdiction u/s. 482 Cr.P.C to quash an impugned order. However, if the accused seeks to have the proceedings in a complaint case itself quashed without impugning a specific order of the Trial Court, or where the quash of the proceedings are sought on the grounds that the complaint case has been instituted on malicious grounds, then such proceedings can only be entertained u/s. 482 Cr.P.C by the High Court as, (a) a criminal revision can only be preferred against an impugned order of a Court inferior to the High Court or the Court of Sessions and (b) in a criminal revision, the Court sitting in revision can only examine the correctness of the impugned order in the backdrop of the jus scriptum and the jus commune and go no further. A Court sitting in revision over the order passed by a Court judicially subordinate to it, cannot set aside an impugned order where the said order is consonance with the statute law and the common law of the land on the ground that the proceedings have been motivated by malicious intent on the part of the Complainant. That power is exclusively vested in the High Court u/s. 482 Cr.P.C. In the instant case, the prayer clause in both the petitions have sought the relief of quashing the entire proceedings before the Court of the Ld. JMFC and not the order summoning the Petitioners. Under the specific fact circumstances, even if the judgement of the Supreme Court in Mohit alias Sonu and another v. State of Uttar Pradesh and anr., AIR 2013 SC 2248, was still in existence, even then the said judgment would not have applied in this case as the Petitioners have not challenged the particular order summoning the Petitioners to stand trial, but sought the quash of the complaint case itself pending before Ld. JMFC. However, in the light of the judgment of the Supreme Court in Prabhu Chawla v. State of Rajasthan, 2016 SCC OnLine SC 905, the embargo imposed upon approaching the High Court u/s. 482 Cr.P.C against an order in which a Criminal Revision could have been preferred, as held in Mohit alias Sonu (supra), no longer exists and is rendered purely academic. Under the circumstances, the contention of the Ld. Counsel for the Respondents that these petition u/s. 482 Cr.P.C were not maintainable and deserved to be dismissed on that ground alone is devoid of merit and is rejected.

5)   The judgment of the Supreme Court in M. Gopalakrishnan v. State, AIR 2009 SC 2015, has been relied upon by the Ld. Counsel for the Respondents in order to buttress his contention as above, that the requirement for sanction can be appreciated by the Trial Court at the appropriate stage. In that case, the Supreme Court dismissed the contention of the Petitioner/Accused by holding that it was for the Trial Court to consider if the acts of the Petitioner came within the four corners of his discharge of official functions in the course of the trial. Another facet of the case was the inclusion of the charge u/s. 420 IPC for which the Supreme Court has consistently held that the commission of an offence u/s.420 can never be considered as an act done in the discharge of official duties. The Ld. Counsel for the Respondents has tried to show the relevance of the above judgments in the backdrop of the facts of the present case where he has argued that the exercise of authority under rule 45 (3) of the Rules was wrong as the same related only to the competence of a person to be elected to the office and not for the removal of a person already on the post. In short, the Ld. Counsel for the Respondents has impressed upon the Court that the discharge of power/authority being motivated, the requirement of sanction is to be seen at the stage of trial and not before that. I am unable to agree with the contention of the Ld. Counsel for the Respondent. It is true that the requirement of a sanction u/s. 197 Cr.P.C is not always to be seen at the commencement of the trial and can also be appreciated in the course of the trial by the Trial Court. However, if the facts of the case reveal at the very outset that the acts of the accused were of such nature that they were so intrinsically associated to the discharge of official duties by the accused, then the requirement for sanction has to be considered at the very outset. In this regard, the judgement of the Supreme Court in Om Prakash and others v. State of Jharkhand, (2012) 12 SCC 72, wherein a case of alleged fake encounter, the High Court was pleased to quash the proceedings against a police officer on the ground that requisite sanction u/s. 197 Cr.P.C was not on record at the time the Trial Court took cognizance of the offences against the Petitioners in that case, is relevant and directly applicable in this case. On an appeal being filed before the Supreme Court by the father of the deceased, interalia the Supreme Court, while discussing the stage at which the issue of sanction can be looked into, held at paragraph 41 that “The upshot of this discussion is that whether sanction is necessary or not has to be decided from stage to stage. This question may arise at any stage of the proceeding. In a given case, it may arise at the inception. There may be unassailable and unimpeachable circumstances on record which may establish at the outset that the police officer or public servant was acting in performance of his official duty and is entitled to protection given under Section 197 of the Code. It is not possible for us to hold that in such a case, the court cannot look into any documents produced by the accused or the public servant concerned at the inception. The nature of the complaint may have to be kept in mind. It must be remembered that previous sanction is a precondition for taking cognizance of the offence and, therefore, there is no requirement that the accused must wait till the charges are framed to raise this plea”. Under the circumstances, the Court must see if the alleged act of the accused is so unequivocally linked with the discharge of his official duties, in which case the requirement for sanction u/s. 197 Cr.P.C is a prerequisite to cognizance of the offences by the Trial Court. In this case, the judgment of the Supreme Court in P.K.Choudhury v. Commander, 48 BRTF (GREF), (2008) 13 SCC 229, which has been discussed elaborately in paragraph 23 supra which is identical to this case where the Supreme Court held that for offences u/s. 166 and 167 IPC, which by their very nature could only be committed by a person in the discharge of his official duties, sanction u/s. 197 Cr.P.C was a pre-requisite. Therefore, I hold that the prosecution of the Petitioners is vitiated on account of the absence of sanction u/s. 197 Cr.P.C