Jai Prakash Dubey vs State of U.P. and Another

Amar Saran, J.—Heard learned Counsel for the applicant and the learned A.G.A.

This application has been filed with a prayer that the order dated 11.10.2007, passed by the Additional Sessions Judge-I, district Etawah in Special Case No. 54/03, State v. Jai Prakash Dubey and Ors. refusing to discharge the applicant may be quashed.

The background of this case was that on 26.3.2003 when the complainant Mahesh Kumar was returning from the Court he was proceeding to District Hospital, Etawah to get some medicines for his sister-in-law Ram Sakhi. When he reached the lane of the hospital, the four accused, who were police officials, caught hold of him and put him forcibly in a jeep. On the opposition of Ram Sakhi, they abused her. They brought him near Vikash Bhawan, where they told him it was Captan Sahib''s order to falsely implicate him in a case under the N.D.P.S. Act. Constable Dubey demanded Rs. 10,000 and made the applicant telephone his brother-in-law (behnoi) at the applicant''s phone number. The applicant''s behnoi brought Rs. 8,000 which was given to Constable Dubey and he was told to bring Rs. 2,000 more.

Mahesh Kumar complained about this incident to the Human Rights Court at Etawah. The Presiding Officer of the Court passed an order on 31.3.2003 that for a broad day light loot and extortion incident by the police personnel a case under Sections 388 and 352, I.P.C. be registered against them, which was to be investigated by a police officer of the rank of an Additional Superintendent of Police. A case at Crime No. 5 of 2003, was thereafter registered at Police Station Civil Lines. After investigation, the name of the accused was disclosed. Sanction of the applicant and others for their prosecution under Sections 7/13 of the Prevention of Corruption Act, 1988 was given by the appointing authority, the S.S.P., Etawah, on 23.8.2003 u/s 468 (1,4) of the U.P. Police Regulations, 1988.

After completion of investigaiton, the charge-sheet No. 185 of 2003, was submitted. The same was sent by the Sessions Court after taking cognizance on 2.9.2003 to the Additional Sessions Judge, Court No. 1, Etawah.

An application (Ext. Kha-32) was moved before the aforesaid Court claiming discharge u/s 227, Cr. P.C. which was rejected by an order dated 11.10.2007. Inter alia the aforesaid order is under challenge by means of this application.

Essentially the argument that has been raised in this case is that the Human Rights Court erred in passing an order u/s 156(3) Cr. P.C. for registration and investigation of the case and that without the sanction for prosecution of the applicant u/s 197 from the appointing authority, the applicant could not be prosecuted. It was further argued that on the basis of the F.I.R. the accused had been suspended on 20.5.2003. However, the High Court in Civil Misc. Writ Petition No. 35131 of 2003, has observed that u/s 30 of the Protection of Human Rights Act, a Human Rights Court did not have any power to direct investigation u/s 156, Cr. P.C. and had consequentially stayed the suspension order.

It was pointed out by the Public Prosecutor before the lower court that as no objections have been raised against the order taking cognizance and simply by writing Human Rights Court on the application u/s 156(3), Cr. P.C. the jurisdiction of the Court was not taken away.

Significantly I find that no contention has been raised that the prima facie allegations did not disclose commission of a cognizable offence. Simply a bald statement has been made that the prosecution has been launched in a mala fide manner with an allegation that as earlier some smack had been recovered from the complainant Mahesh Kumar, he bore enmity to the applicant and other police personnel which induced him to file this false complaint.

It may be noted that in State of Orissa and Another Vs. Saroj Kumar Sahoo, it has been held that probabilities of the prosecution version cannot be analyzed at this stage. Likewise the allegations of mala fide of the informant are of secondary importance. The relevant passage reads thus:

It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar 1990 Supp SCC 868 ; State of Bihar and Another Vs. P.P. Sharma, IAS and Another, Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, State of Kerala v. O.C. Kuttan (1992) 2 SCC 651 ; State of U.P. Vs. O.P. Sharma, Rashmi Kumar (Smt) Vs. Mahesh Kumar Bhada, Satvinder Kaur Vs. State (Govt. of N.C.T. of Delhi) and Another, and Rajesh Bajaj Vs. State NCT of Delhi and Others,

In this view of the matter such a question of mala fide cannot be gone into for quashing the order taking cognizance and in any case in the present case, a mere suggestion of mala fide has been raised and has not at all been substantiated. Such pleas regarding mala fide etc., can only be examined, if the applicant leads evidence during defence and the value of the defence plea will then be appraised by the trial court.

So far as the principal contention of the learned Counsel for the applicant that an order passed by the single Judge in Civil Misc. Writ Petition No. 35131 of 2003, is concerned, the interim order dated 22.8.2003 was passed when the applicant was challenging the suspension order and some observations have been made by the learned single Judge that the Human Rights Court cannot exercise powers u/s 156(3), Cr. P.C. for directing investigation into an offence.

It would indeed have been better if the Protection of Human Rights Act, 1983, contained provisions for directing investigation by the Human Rights Court. However, even without going into the validity of the said interim order, it needs to be pointed out that in view of Section 156(1)(2) of the Code of Criminal Procedure an officer-in-charge of a police station can investigate any cognizable offence which a Court having jurisdiction in the local area could try even without orders of a Magistrate. Sections 156(1)and 156(2) of the Cr. P.C., may be usefully perused in this connection:

Police officer''s power to investigate cognizable case.-

(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate.

Now in view of Section 36, Cr. P.C. a police officer superior in rank to an officer-in-charge of a police station may exercise the same powers throughout the area in which he is appointed as may be exercised by a police officer-in-charge of the police station in the local area. Therefore, in the present case where the Human Rights Court was prima facie satisfied after examining the complainant Mahesh Kumar and his brother-in-law Sarvesh Kumar on oath confirming their version that he was dumped into a police jeep and a bribe demanded and extracted from him, it could be said that there was some credible information about commission of a cognizable offence, and the police officer concerned (here the A.S.P. appointed by the S.S.P.) could even have investigated the offence suo motu.

To the same effect is Section 41(1)(a) of the Cr. P.C., which confers power on a police officer to arrest without warrant or an order from a Magistrate any person who is concerned or against whom reasonable information or suspicion exists of his having been concerned in any cognizable offence. Section 41(1)(a), Cr. P.C. may be perused in this context:

Every police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned ;

Furthermore, the crucial point is that after cognizance has been taken, even if the process of investigation can be faulted in any manner, the validity of the order taking cognizance cannot be called into question on that account. In Union of India (UOI) Vs. Prakash P. Hinduja and Another, the Apex Court examined the validity of an investigation by the C.B.I., even without orders of the Chief Vigilance Commissioner even if the latter was a pre-condition for such investigation. Referring to the decisions of H.N. Rishbud and Inder Singh Vs. The State of Delhi, Prabhu v. Emperor AIR 1944 SC 73 and Lumbhardar Zutshi v. King AIR 1950 PC 26, the Apex Court observed in Prakash P. Hinduja''s case, that even if there are some defects in the authority for investigation or in the investigation process that would provide no ground for quashing an order of cognizance, unless miscarriage of justice had in fact occurred. Paragraph 20 in Prakash P. Hinduja''s case, is especially important in this regard and I quote it in extenso:

An incidental question as to what will be the result of any error or illegality in investigation on the trial of the accused before the Court may also be examined. Section 5A of the Prevention of Corruption Act, 1947 provided that no police officer below rank of a Deputy Superintendent of Police shall investigate any offence punishable u/s 161, Section 165 and Section 165A, I.P.C. or u/s 5 of the said Act without the order of a Magistrate of the First Class. In H. N. Rishbud (supra) the investigation was entirely completed by an officer of the rank lower than the Deputy Superintendent of Police and after permission was accorded a little or no further investigation was made. The special Judge quashed the proceedings on the ground that the investigation on the basis of which the accused were being prosecuted was in contravention of the provisions of the Act, but the said order was set aside by the High Court. The appeal preferred by the accused to this Court assailing the judgment of the High Court was dismissed and the following principle was laid down: "The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading "conditions requisite for initiation of proceedings." The language of this Section 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. But Section 190 does not. While no doubt, in one sense, Clauses (a) (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance of an invalid police report is prohibited and is therefore, a nullity. Such an invalid report may still fall either under Clause (a) or (b) or Section 190(1) (whether it is one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial.

The Court after referring to Prabhu v. Emperor AIR 1944 SC 73 and Lumbhardar Zutshi v. King AIR 1950 PC 26, held that if cognizance is in fact taken on a police report initiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial, which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial. This being the legal position, even assuming for the sake of argument that the C.B.I. committed an error or irregularity in submitting the charge-sheet without the approval of C.V.C., the cognizance taken by the learned special Judge on the basis of such a charge-sheet could not be set aside nor further proceedings in pursuance thereof could be quashed. The High Court has clearly erred in setting aside the order of the learned special Judge taking cognizance of the offence and in quashing further proceedings of the case.

(Emphasis added)

u/s 460(e) of the Code of Criminal Procedure, it has also been held that if any Magistrate not empowered by law to take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of Section 190 takes cognizance erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered and such an irregularity has been not held to be such which vitiates proceedings. In this context Section 460(e) is being extracted hereunder:

Irregularities which do not vitiate proceedings.-If any Magistrate not empowered by law to do any of the following things, namely: (e) to take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (1) of Section 190.

As already indicated hereinabove that in view of Section 156(2), Cr. P.C., no investigation would be called into question on the ground of the incompetency for investigation of the concerned police officer.

Furthermore, it may be noted that in the present case at the stage when the charge-sheet was filed no application was filed for challenging the said order, and only at a belated stage, when the charge was to be framed that the application for discharge has been moved raising a plea regarding the incompetency of the Human Rights Court to order investigation. I think that at this belated stage such an objection cannot even be raised.

There is also no force in the contention of the learned Counsel for the applicant that there is any bar on the learned Magistrate for taking cognizance in view of Section 197, Cr. P.C. in a case where essentially the allegations were of illegally detaining a person and demanding and illegally taking a bribe, which can never be part of the duty of a public servant.

In this connection it would be useful to refer to paragraph 23 in Romesh Lal Jain Vs. Naginder Singh Rana and Others, where the legal position on this aspect has been enunciated and the relevant case law discussed:

However, in State of H.P. Vs. M.P. Gupta, upon, inter alia, noticing Amrik Singh Vs. The State of Pepsu, in a case where offences alleged against a public servant were under Sections 406, 409, 467, 468 and 471, I.P.C. this Court held:

That apart, the contention of the Respondent that for offences under Sections 406 and 409 read with Section 120B, I.P.C. sanction u/s 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the legal position in Shreekantiah Ramayya Munipalli case and also Amrik Singh case, that it is not every offence committed by a public servant which requires sanction for prosecution u/s 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad, etc. Vs. State of Bihar,

As far as the offence of criminal conspiracy punishable u/s 120B read with Section 409 of the Indian Penal Code is concerned and also Section 5 (2) of the Prevention of Corruption Act, are concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction u/s 197 of the Code of Criminal Procedure is, therefore, no bar.

Above views are reiterated in State of Kerala v. V. Padmanabhan Nair. Both Amrik Singh and Shreekantiah were noted in that case. Sections 467, 468 and 471, I.P.C. relate to forgery of valuable security, Will etc. ; forgery for the purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction u/s 197 of the Code is, therefore, no bar." AIR 1999 SCW 2526.

(Emphasis added)

For all the reasons enumerated above there is no force in this application and it is dismissed in limine.