Suresh Kumar Khanna vs State of Haryana

K.K. Srivastava, J.

This is a petition filed under Section 482 of the Code of Criminal Procedure seeking the quashing of FIR No. 332 dated 23.12.1993, under Sections 409, 420, 468, 471, 120B of the Indian Penal Code, of Section 7/13 of the Prevention of Corruption Act, 1988 (for short P.C. Act) registered at Police Station Sadar Kaithal and proceedings arising therefrom pending in the Court of Shri P.C. Gupta, Presiding Officer, Special Court, Kaithal. The impugned FIR was registered on the basis of a secret information received by Sub Inspector Devi Chand through special informer on 23.12.1993 when he along with other police officials was on patrol duty and present at Cavin Road crossing. According to the information received, firm M/s Sham Lal & Company was having many tankers for carriage of molasses from Sugar Mills, Kaithal on hire basis. The fare from Kaithal to Panipat is at Rs. 8.33 per Quintal. One Vinod Kumar of the said firm M/s Sham Lal & Co. was in league with Vijay Kumar, a clerk working at Sugar Mills, Kaithal and Om Parkash, Sales Manager, was carrying excess weight of molasses out of the premises of the Sugar Mills, Kaithal after manipulating the weight recorded in the receipt issued from the computer. A sum of Rs. 50/ per Quintal was paid to Vijay Kumar Clerk and Om Parkash, Sales Manager aforesaid. These officials of the Sugar Mills used to prepare documents showing less weight of molasses and hand over the same to the said Vinod Kumar of M/s Sham Lal & Company, Vinod Kumar used to unload the excess weight of molasses from the tankers at his godown in Rohtak. On the aforesaid date i.e. 23.12.1993, Sub Inspector Devi Chand had received information that said Vinod Kumar had loaded molasses from Sugar Mills Kaithal in the truck No. HR 12/5971 driven by one Azad Singh, truck No. HYX 5765 driven by Som Bir, Tanker No. HYO 401 driven by one Nanak, Tanker No. DL 1G/5780 driven by one Dharam Vir and Tanker No. HYO 2596 driven by one Ajay for being unloaded at Distillery situated at Panipat. Out of the aforesaid Trucks and Tankers, Tanker No. HYO 2596 driven by Ajay was reported to be carrying correct weight of molasses whereas the remaining four tankers were carrying excess weight as against the lesser weight shown in the papers. The information also disclosed that these tankers and trucks shall proceed in the first instance to Rohtak where Vinod Kumar will unload the excess molasses at his Godown and then the vehicles carrying the correct weight of molasses as per the entries made in the paper will carry it for delivery at Panipat Distillery. The excess weight of molasses stored in the Godown by Vinod Kumar is subsequently sold in the market at a higher rate. These trucks and tankers were to proceed in the night. After registration of the case on the basis of this information, Inspector/SI Devi Chand and other police officials arranged a picket to intercept the trucks and tankers and succeeded in intercepting tankers and trucks aforesaid. The drivers of these vehicles managed to escape due to the darkness. However, Vinod Kumar aforesaid was apprehended while making his escape good. After being captured at the spot, Vinod Kumar produced the documents of all the tankers loaded with molasses. The case was duly investigated and on the completion of investigation a challan was filed against the accused. The aforesaid vehicles were got weighed. On 26.12.1993 Inspector Kuldip Singh took Vinod Kumar to Rohtak where Vinod Kumar produced some documents including the rates for lifting of molasses and power of attorney for lifting of molasses. However, molasses were not found as it was revealed that Sham Lal and Company on getting the information regarding the raid of the vehicles had removed the molasses. The drivers of the said vehicles were later on apprehended and arrested. Om Parkash Sales Manager and Vijay Kumar, Sales Clerk were also interrogated who produced the relevant record which were taken into police possession through a recovery memo. The aforesaid drivers presented their aforesaid molasses relating to their respective tankers which were also taken into police custody though recovery memos. Statement of witnesses were recorded. On 27.12.1993 record of Sugar Mills Kaithal was taken into police custody through recovery memo. On presentation of the challan, accused appeared before the concerned trial Court and were remanded to judicial custody. On 30.12.1993 accused Dharam Vir, driver of tanker No. DL1G/5780 was arrested and molasses GP1 Central Excise and Molasses gate pass were produced which were taken into police custody through recovery memo. Gate pass of other vehicles was also taken into police possession. The molasses concerning the case were released to the Sugar Mills Kaithal on 5.1.1994 at superdari as per orders of the Court. The tankers were also released on superdari. Accused Anil Kumar, owner of tanker No. HYO 401 was arrested and produced before the Court. The investigating Agency attempted to obtain the specimen signatures of accused Vijay Kumar, Om Parkash and Vinod Kumar who refused to give their specimen signatures. The Deputy Superintendent of Police, Headquarters Kaithal obtained permission as per the P.C. Act and thereafter he had entrusted the investigation of the S.H.O.

The Presiding Officer, Special Court, Kaithal framed charge sheet against the accused persons including the petitioner Suresh Kumar Khanna on 4.11.1996 and the proceedings are pending in that Court.

Petitioner Suresh Kumar Khanna was posted as Excise Inspector at Kaithal. He was given additional charge of Sugar Mills, Kaithal known as The Kaithal Coop. Sugar Mills Ltd., Kaithal. The main duty of the petitioner wa to look after his regular circle i.e. Kaithal City circle for effecting recovery of license fee, collecting excise duty on liquor and to check the liquor vends. The liquor vends used to be checked regularly at least four to five times in a month which were 14 in number. Apart from his own duties, he was assigned additional duty of Excise Inspector at the said Sugar Mills Kaithal and was required to sign molasses Transport pass for the purpose of transporting the molasses from Sugar Mills Kaithal to various destinations which included Panipat Distillery also. According to the averments made in the petition the weight of the tanker was initially taken and then GP1, Pass of Central Excise was prepared by the staff of Sugar Mills which was signed by the Managing Director of the Sugar Mills after satisfying himself about its correctness. After the preparation of GPI Pass the molasses transport pass was prepared in triplicate which was also signed by the Managing Director and thereafter by the Excise Inspector on which post the petitioner was working at that time. One copy of the molasses pass was kept at the Suger Mills and the remaining two copies of the pass were given to the driver/owner of the tanker for handing over the same to the concerned Distillery where molasses were to be transported. The Distillery was required to acknowledge the receipt on the molasses transport Pass certifying in the following terms :

"Certified that the seal of the tanker of molasses has been found in tact, the consignment has been received in the Distillery and verified to be correct as per details given in this pass."

A copy of the molasses Transport pass was annexed with the petition as Annexure P5. The petitioner seeks the quashing of the impugned FIR and the proceedings flowing therefrom on the grounds, interalia, that the investigation of the case was to be conducted by the Deputy Superintendent of Police but in the instant case the Deputy Supdt. of Police did not conduct the investigation himself. The contention of the petitioner is that the investigation was initially started by the Inspector, CIA Staff Kaithal, namely, Kuldeep Singh and thereafter it was conducted by Sub Inspector Mam Chand. This was done in violation of Section 17 of the P.C. Act which required the investigation to be conducted by Deputy Superintendent of Police. The Deputy Supdt. of Police (Headquarters) moved an application before Additional Chief Judicial Magistrate, Kaithal on 9.2.1994 contending that the Deputy Supdt. of Police Amir Singh due to heavy load of work was not in a position to conduct the enquiry and sought the orders in this regard from the Court. The learned Additional Chief Judicial Magistrate, Kaithal passed an order dated 9.2.1994 allowing the investigation of the case to be taken over by Shri Sube Singh, Inspector/S.H.O., P.S. Sadar Kaithal. A copy of the order passed by Additional Chief Judicial Magistrate, Kaithal is annexed with the petition as Annexure P6. The other ground urged is that the petitioner was not named in the impugned F.I.R. and even in the report filed by the Investigating Officer under Section 173 Cr.P.C. on 10.3.1994, copy Annexure P4. It was also contended that none of the witnesses disclosed commission of any offence by the petitioner. The matter pertains to M/s Sham Lal and Company which was plying tankers for the purpose of carrying molasses from the Sugar Mills Kaithal to the Panipat Distillery. The allegations were against the said firm M/s Sham Lal and Company acting in connivance with the workers appointed in the Sugar Mills at Kaithal. It was contended that there was no evidence on record regarding short supply of molasses to the Distillery. The accounts were tallied at the Sugar Mills Kaithal and at the destination point i.e. Panipat Distillery. These two Agencies are absent from the challan put up in this case. The petitioner contended further that the sanction for prosecution was granted by the Excise and Taxation Commissioner Haryana which is not in accordance with law. The Excise and Taxation Commissioner has not applied his mind to the facts of the case at the time when he accorded sanction for the prosecution of the petitioner. The petitioner contended that there is no material on record which could warrant prosecution and conviction of the petitioner in this case. It was also contended that there was no evidence to connect the petitioner for his liability for the commission of offence punishable under Section 120B of Indian Penal Code. The petitioner referred to various judgments in the petition for placing reliance regarding his prayer of the quashment of the F.I.R. The order of the Presiding Officer, Special Court framing charges against the petitioner has also been assailed as being based on no material on record.

Notice of motion was issued to the respondentState of Haryana. Reply was filed in the shape of affidavit of Shri Kiratpal Singh, Inspector/SHO, P.S. Sadar Kaithal contending, inter alia that it was the duty of the petitioner to check the molasses before issuing the Pass and to issue the same after satisfying himself. It was mentioned that initially the petitioner was not named in the F.I.R. but his involvement came into light during the investigation of the case. After collecting sufficient evidence during investigation challan was submitted against the petitioner in the Court. The respondent contended that all the molasses permits which were found had been issued by the petitioner and the evidence collected during investigation clearly showed the involvement of all the accused in this scam. Regarding investigation it was urged that the investigation was handed over to Inspector Sube Singh, SHO, P.S. Sadar Kaithal on the request of Deputy Supdt. of Police Amir Singh and the investigation was conducted under the provisions of law. The sanction order was duly issued by the Excise and Taxation Officer, Haryana and validity of the same is yet to be examined by the trial Court. The charges framed by the trial Court have been defended on the basis of the evidence on record. Respondent further pointed out that as per evidence collected during investigation the offence was committed in pursuance of the conspiracy hatched by the accused persons, hence the offence punishable under Section 120B of Indian Penal code was added.

I have heard the learned counsel for the petitioner and learned State counsel and perused the record of the case.

The petitioner was undisputedly Incharge of the Excise Department at the Kaithal Coop. Sugar Mills Ltd., Kaithal at the relevant time. It is not disputed that it was the duty of the petitioner to sign and issue the molasses Transport Passes to the various vehicles transporting molasses from the Co operative Sugar Mills, Kaithal to the Distillery at Panipat. There is no dispute regarding the fact that the main allegations were against the said firm M/s Sham Lal and Company which carried on the business of transporting molasses from the Distillery at Panipat and was engaging trucks and tankers for the purpose. The allegations were primarily against Vinod Kumar of M/s Sham Lal and Company for carrying excess weight of molasses from the Sugar Mills Kaithal and manipulating in connivance with the staff of Sugar Mills for showing the lesser weight in papers including the Molasses Transport Pass and to unload the excess molasses at his godown at Rohtak and then to unload the correct weight of molasses as per papers issued by the Sugar Mills Kaithal at the destination i.e. Panipat Distillery. As would be seen from the case of the prosecution as also the case set up in the petition, the petitioner held the additional charge of the Sugar Mills on behalf of the Excise Department and his duty was to sign the Molasses Transport Passes. The excise duty was leviable on the molasses leaving the Sugar Mills premises to the destination i.e. Distillery at Panipat. In the investigation, the evidence was collected regarding the criminal conspiracy having been hatched between the various employees of the Sugar Mills and that of the transport firm i.e. M/s Sham Lal and Company. After collecting the material during investigation, a challan was filed in the Court of competent jurisdiction and the proceedings were laid before the Presiding Officer, Special Court, Kaithal. The charge sheet has also been framed in this case. So far as the submission of the learned counsel for the petitioner about the investigation of the case being conducted contrary to the provisions of Section 17 of the P.C. Act is concerned, the provisions of Section 17 of the P.C. Act my be noticed. Section 17 of the P.C. Act reads as under :

"17. Persons authorised to investigate :

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,

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

(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub section (I) of Section 8 of the Code of Criminal Procedure 1973 (2 of 1974), of an Assistant Commissioner of Police;

(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank.

shall investigate any offence punishable under this Act without the order of a metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefore 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 Metropolitan Magistrate or a Magistrate of the First Class, as the case may be, or make arrest therefore without a warrant.

Provided further than an offence referred to in clause (e) of sub section (I) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police."

Reliance was placed on Section 17, subsection (c) of the P.C. Act 1988 as the area in this case is covered by the remainder clause contained in Section 17(c) of the P.C. Act 1988. On the basis of the provisions as contained in Section 17(c) it was urged that in the District of Kaithal which was covered by the clause (c), investigation into the case under the P.C. Act was to be conducted by a Deputy Superintendent of Police or a Police Officer of equivalent rank. Perusal of Section 17 of the P.C. Act 1988 will go to show that the State Government was empowered to authorise a Police Officer of the rank of Inspector of Police by general or special order to investigate into such offence and he could investigate into such offence without the order of a Metropolitan Magistrate or a Magistrate of the First Class. It appears from the perusal of Annexure P6 that Shri Amir Singh, Deputy Superintendent of Police (HQ), Kaithal had moved an application on 9.2.1994 before Additional Chief Judicial Magistrate, Kaithal for according permission for conducting the investigation of the case by Sube Singh, Inspector/SHO, P.S. Sadar Kaithal. The learned Additional Chief Judicial Magistrate, Kaithal passed the flowing order :

"Present : Shri B.L. Arya, A.D.A. with applicant. Heard the applicant also. In the interest of justice, investigation in the abovesaid case is allowed to be taken over by Shri Sube Singh, Inspector/S.H.O., P.S. Sadar Kaithal from Sh. Amir Singh, D.S.P.

Sd/

9.2.94."

The learned Additional Chief Judicial Magistrate, Kaithal had, thus, accorded permission for the investigation to be carried on and conducted by an Officer of the rank of Inspector/S.H.O., Police Station Sadar Kaithal.

The Apex Court in the case of State of Haryana & others v. Ch. Bhajan Lal & others, 1991(1) CLR 619 considered the provisions of Section 5A(1) of the P.C. Act 1949 which is almost similar as Section 17 of the P.C. Act 1988. Section 5A(1) (d) of the Act provided that notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), no police officer below the rank, elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161, 165 or 165A IPC (45 of 1860) or 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 subsection (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police."

The Apex Court held that Section 5A 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 validity of the proceedings with the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. (para 119 at page 672).

After going through the various decisions referred to in the judgment, their Lordships of the Apex Court concluded in this regard in para 128 as under;

"The conspectus of the above decisions shows clearly that the granting of permission under Section 5A 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 5A (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 5A is to see that the investigation of offences punishable under Sections 161, 165 or 165A 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 Sec. 5A(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 5A(1) becomes absolutely necessary, because Section 5A(1) expressly prohibits police officers, below certain ranks, from investigating into offences under Sections 161, 165 and 165A 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 (supra).

It may be pointed out that in the instant case the trial Court has taken cognizance of the matter and has also framed charges against the accused petitioner. Besides it, the learned Magistrate has on the application of the Deputy Superintendent of Police permitted the investigation of the case to be conducted by an Officer of the rank of Inspector/S.H.O. In view of the foregoing discussion, there is no merit in the contention of the learned counsel for the petitioner that the investigation in the case has been conducted by an Authority who was not empowered under Section 17 of the P.C. Act 1988 to proceed with the investigations of the case.

Apart from it, the matter regarding the investigation being not conducted in accordance with the provisions of law could still be raised before the trial Court at the stage of trial.

The order of sanction of prosecution was passed by the Excise and Taxation Commissioner, Haryana and the same has not been challenged for want of proper authority. The only ground of challenge is that the sanctioning authority did not apply his mind to the material on record before according sanction. This is a question which is dependent upon the evidence of the Officer according sanction as to whether he had perused and considered the material placed before him for according sanction. No assumption can be raised at this stage regarding the averments made in the petition in this regard. The other argument is regarding the applicability of Section 120B of the Indian Penal Code against the petitioner. It is suffice to say that the learned trial Judge at the time of framing the charge sheet perused the material on record and after hearing the prosecution as also the accused he proceeded to frame the charge sheet. It is also relevant to note that the petitioner has in this petition not impugned the charge sheet framed by the Presiding Officer of the Special Court trying the case. The petitioner has not prayed for the quashing of the charge sheet. It will appear from the perusal of the petition that the petitioner has specifically prayed for quashing of the F.I.R. and the proceedings. The petitioner had the remedy of filing a criminal revision against the order framing the charge and the charge sheet served on him.

The learned counsel for the petitioner cited the judgment of the Apex Court in the case of R.S. Nayak v. A.R. Antulay, A.I.R. 1984 Supreme Court 684 The Hon''ble Apex Court considered the question of grant of sanction by the competent authority for prosecution of the accused under the P.C. Act and held in para 23, inter alia, as under :

"A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Government servants against frivolous prosecutions and the aforesaid requirements must therefore, be strictly complied with before any prosecution could be launched against public servants. (See Mohd. Iqbal Ahmad v. State of Andhra Pradesh, AIR 1979 SC 677. The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that authority alone would be able, when facts and evidence are placed before him, to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about he functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that the authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office."

In the instant case, it is not disputed that Excise and Taxation Commissioner was the competent authority. The said authority has after considering the material placed before it accorded sanction for the prosecution of the petitioner and the same cannot be, at this stage, said to be without application of mind. The trial of the case is yet to begin inasmuch as evidence is yet to be recorded. The petitioner will have an ample opportunity to show before the trial Court that the sanctioning authority has no sufficient material before it for according sanction for his prosecution. Such an assumption cannot be raised at this stage for the purpose of quashing the proceedings.

Learned counsel for the petitioner placed reliance on the case of Balbir Singh Sami v. State of Haryana, 1989(1) RCR 535 wherein a learned Single Judge of this Court held that the proceedings could be quashed even after framing of the charges. The relevant discussion is in para 3 of the judgment, which reads as under :

"Ordinarily criminal incitement against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. However, in appropriate cases to prevent abuse of the process of any Court or otherwise to secure the ends of justice, the High Court may exercise its inherent powers at any stage of the case. One of the tests to be applied in order to determine whether any particular case is of that exceptional nature or not, is to see whether a bare statement of the facts of the case should be sufficient to convince the High Court that it is a fit case for interference at an interlocutory stage. Another test to be applied is to see whether in the admitted circumstances of the case it would be a mock trial if the case is allowed to proceed. Where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute offence alleged; in such case no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the accusation alleged is disclosed or not. In such a case, as observed in R.P. Kapur v. State of Punjab, AIR 1960 Supreme Court 866, inherent jurisdiction to quash proceedings can and should be exercised."

It may, however, be mentioned that the Hon''ble Apex Court in the case of Minakshi Bala v. Sudhir Kumar, 1994(3) RCR 123 held as under :

"If charges are framed in accordance with Section 240, Criminal Procedure Code on a finding that a prima facie case has been made out as has been done in the instant case the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge sheet submitted under Section 173 Criminal Procedure Code and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional Court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240, Criminal Procedure Code the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240, Criminal Procedure Code nor would it be justified in invoking its inherent jurisdiction under Section 482, Criminal Procedure Code to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.

In the instant case, the learned trial court framed the charge sheet against the petitioner on 4.11.1996. In view of the decision of the Apex Court in the case of Minakshi Bala (supra) the quashing of the proceedings after the framing of the charge under Section 240 of the Code of Criminal Procedure should not be ordered by this Court. Apart from it, the facts of this case cannot be said to be, making out rare cases justifying such a course being adopted at this stage.

The petitioner will be at liberty to raise the pleas on disputed facts before the trial Court at the stage of trial. In view of the foregoing discussion, I find no merit in this petition and same is dismissed.