Allowed

State of Hp v. Prem Singh

Himachal Pradesh HC7 Aug 2024CR.R/129/2022

Case brief

AI extract

What is this about?

State challenged an order returning a challan on the ground that a report under Section 36 of the HP Prevention of Specific Corrupt Practices Act was submitted to police rather than the Court. The High Court held that since the designated officer had authorized the police to investigate, the challan could not be returned.

What did the court decide?

Impugned order dated 19.10.2021 quashed; direction to Special Judge to proceed with matter on merits.

State of Hp Vs Prem Singh — Corruption | Himachal Pradesh HC (2024)

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2024:HHC:6779

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Criminal Revision Petition No. 129 of 2022 Date of Decision: 7.8.2024

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_____________________________________________________________________ State of Himachal Pradesh ……...Petitioner Versus Prem Singh and another …....Respondents Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes. For the Petitioner: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General with Mr. Ravi Chauhan, Deputy Advocate General. For the Respondents: Mr. G.R. Palsra, Advocate. ___________________________________________________________________________ Sandeep Sharma, J. (Oral)

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In the instant proceedings filed under Section 397 read with Section 401 of CrPC, challenge has been laid to order dated 19.10.2021, passed by the learned Special Judge, Mandi, District Mandi, Himachal Pradesh, whereby challan submitted by the police against the respondents, for their having committed offence punishable under Sections 406, 411 & 120-B of Indian Penal Code (in short the “ IPC ”) and under Sections 4 & 7 of Himachal Pradesh Prevention of Specific Corrupt Practices Act, 1983 (in short the “ Act ”), came to be returned on the ground that same is not presented to the court by the authorized officer.

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2. Precisely, the facts of the case as emerge from the record are that person namely Amar Singh i.e. respondent No.2, who at the relevant time, was a Government Contractor, unauthorizedly sold the bags of

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cement issued to him by the Public Works Department for construction of Government property to a private person namely Prem Singh i.e. respondent No.1. Police, after being submitted report by the Executive Engineer B&R Division, HPPWD, Gohar, registered FIR against the respondents under Sections 406, 411 and 120-B of IPC and under Sections 4 & 7 of the Act. After completion of investigation, police presented challan in the competent court of law i.e. learned Special Judge, Mandi, District Mandi, Himachal Pradesh, under the aforesaid provisions of law.

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3. Vide impugned order dated 19.10.2021, learned Special Judge while discharging the accused named in the challan returned the challan to the police reserving liberty to the prosecution to submit report to the court on the prescribed proforma made by the authorized officer as per rules, if so advised.

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4. Being aggrieved and dissatisfied with impugned order dated 19.10.2021, petitioner-State has come before this Court in the instant proceedings, praying therein to set aside aforesaid order.

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5. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. B.C. Verma, learned Additional Advocate General, is that since very basis of FIR, on the basis of which, challan under Section 173 CrPC came to be submitted in the court of learned Special Judge Mandi, was the report submitted by the Executive Engineer B&R Division, HPPWD, Gohar, who is competent authority under

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Section 36 of the Act, there was no occasion, if any, for the learned Special Judge to return the finding that report was not submitted by the competent authority as prescribed under Section 36 of the afore Act. Mr. Verma, further submitted that otherwise also, there is no bar, if any, under Section 30 of the Act to take cognizance on the basis of police report, which otherwise in the present case was on the basis of report submitted by the Executive Engineer B&R Division, HPPWD, Gohar, who was competent authority under Section 36 of the Act, to make a report in writing to the court. To substantiate his aforesaid submission, Mr. Verma, specifically invited attention of this Court to judgment dated 4.11.2022, passed by coordinate Bench of this Court in Case titled State of Himachal Pradesh v. Labh Singh and Anr ., in Criminal Revision No. 151 of 2022.

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6. To the contrary, Mr. G.R. Palsra, Advocate, appearing for the respondents, while supporting the impugned order, submitted that once Section 36 of the Act clearly provides that no court would take contingence of the offence under this Act against any person, unless a report in writing is made by an officer not below the rank of an Under Secretary, no illegality can be said to have been committed by the learned Special Judge while returning the challan because admittedly, same was not submitted to the court by the competent authority in terms of Section 36, rather same was presented by the police, which was not competent to do so.

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7. Having heard learned counsel for the parties and perused the material available on record, this Court finds that FIR, as detailed herein above, came to be instituted against the respondent-accused namely Amar Singh and Prem Singh, on the basis of report submitted by the Executive Engineer B&R Division, HPPWD, Gohar, wherein he alleged that accused indulged in illegal sale and purchase of cement issued by the Public Works Department to the accused namely Amar Singh for construction of building. Having taken note of the aforesaid report submitted by the Executive Engineer B&R Division, HPPWD, Gohar, police lodged FIR and after completion of investigation presented challan in the competent court of law, which came to be returned on the ground that same is not based upon the report submitted by the Authorized Officer in terms of Section 36 of the Act. At this stage, it would be apt to take note of Section 36 of the Act, which reads as under:

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“ 36. Cognizance of offences - No court shall take cognizance of an offence under this Act against any person unless a report in writing is made by such an officer not below the rank of a 1 [Under Secretary] as the State Government as it may by a notification, specify:

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Provided that no such report shall be made against a member of judicial service of State saves with the prior concurrence of the High Court.

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8. Aforesaid provision of law clearly talks about prohibition of cognizable offences under the Act by any court, unless a report in writing is made

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by the authorized officer to be notified by the State Government. As per aforesaid provision of law, Authorized Officer should not below the rank of Under Secretary.

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9. The question, which needs determination at the first instance, is “ whether making of report is to be construed a report being made to the Court by the Authorized Officer as a pre-condition for taking of cognizance or Authorized Officer at the first instance would make report to the police enabling it to investigate the matter and file challan, if any, in the competent court of law ”.

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10. To explore answer to aforesaid query posed by this Court, it would be apt to take note of Section 39 of CrPC, which reads as under:

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“39. Public to give information of certain offences .

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(1) Every person aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely –

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(i) Sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the State specified in Chapter VI of the said Code);

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(ii) Sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquillity specified in Chapter VIII of the said Code);

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(iii) Sections 161 to 165-A, both inclusive (that is to say, offences relating to illegal gratification); (iv) Sections 272 to 278 both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.),

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(v) Sections 302, 303 and 304 (that is to say, offences affecting life); (va) [ Section 364A (that is to say, offence relating to kidnapping for ransom, etc.) [Inserted by Act 42 of 1993, Section 3 (w.e.f. 22-5-1993).]

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(vi) Section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft);

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(vii) Sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoity);

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(viii) Section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.);

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(ix) Sections 431 to 439, both inclusive (that is to say, offences of mischief against property);

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(x) Sections 449 and 450 (that is to say, offences of housetrespass); (xi) Sections 456 to 460, both inclusive (that is to say, offences of lurking house-trespass);

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and (xii) Sections 489-A to 489-E, both inclusive (that is to say, offences relating to currency notes and bank notes),

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shall in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention.

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(2) For the purposes of this section, the term "offence" includes any act committed at any place out of India which would constitute an offence if committed in India.”

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11. As per aforesaid provision of law, every person aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the sections of the IPC, as detailed in the aforesaid provision of law, shall give information to the nearest Magistrate or police officer of such commission or intention.

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12. Section 190 of Cr.PC, further empowers the Magistrate to cognizance of any offence; (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such fact and; (c) upon information received

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from any person other than a police officer or upon his own knowledge that such offence has been committed.

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13. Section 173 CrPC deals with police report, sub-clause 2 whereof makes it mandatory for the officer in charge of the Police Station concerned to file charge sheet on completion of investigation before the Magistrate empowered to take cognizance of the offence. The power to investigate the cognizance of the offence vests with the police officer as per procedure prescribed under the Code. Cognizance upon the police report as provided under Clause (b) of sub-Section 1 of Section 190 would mean report under Section 173 (2) of the Code. Chapter –XV of the CrPC, provides for complaints to the magistrate and procedures to be adopted by the magistrate on receipt of the complaints. The complaints as prescribed under Clause (a) of sub-Section 1 of Section 190 has reference to Chapter 15 of the Code. Clause (c) of sub section 1 of Section 191 enables the Magistrate to proceed in accordance with provisions contained under Sections 191 and 192 of the Code. Police report, if any, can only be filed under Section 173 of the Code, whereas any other person other than police can only file a complaint. Though Section 36 of the Act, as taken note herein above, nowhere specifically provides for making a report by the designated officer to the Court, rather it only speaks of making of report by an authorized officer.

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14. In the case at hand, learned Special Judge while passing impugned order has held that police has obtained a report from the Executive Engineer B&R Division, Gohar, in which it was mentioned that Executive Engineer is the competent authority under Section 36 of the Act, to make a writing to the court, that accused Amar Singh should be prosecuted in the court of law for commission

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of the offence. He further observed in the impugned order that Executive Engineer made a report in witting to the police to take cognizance of the offence against accused Amar Singh and since such report was part of the challan, it cannot be called to be report contemplated under Section 36 of the Act, because report was made to the police and not to the court.

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15. No doubt, Rule 3 of the Rules framed under the Act, provides that report shall be made in writing by the competent authority empowered by the State Government under Section 36 of the Act, to the Court, enabling it to take cognizance of the offence under the Act in the Proforma attached to the Rules, however it is also not in dispute that rule making power has been vested with the State Government by virtue of Section 40 of the Act, which authorizes the State Government to make rules for the purpose of carrying into effect the provisions of Act. Needless to say, in the exercise of power to make rules, rules cannot be so framed to oversight the provisions of act itself. Section 36 of the Act itself does not provide for making of report by the Authorized Officer or the court, rather it only provides for making of report by such officer not below the rank of Under Secretary as may be specified by the State Government vide notification. In terms of aforesaid provision of law, State Government by way of notification can specifically authorize an officer, who can make the report, but such officer should not be below the rank of Under Secretary.

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16. In view of the aforesaid, rule 3 of rules framed under Act, otherwise cannot be interpreted to be a bar to the power of the court to take cognizance in the absence of the report being made by the Authorized Officer. At this stage, it would be apt to take note of 36A of the Act, which reads as under:

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“[36-A. Investigation of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in case of a public servant, no Police Officer below the rank of the Deputy Superintendent of Police shall investigate into or make any arrest in, an offence punishable under this Act:

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[Provided that the State Government may, by general or specific order, authorize a police officer not below the rank of Inspector of Police to investigate into, or make any arrest in, an offence punishable under this Act.]

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Explanation.-For the purpose of this section "public servant" means a public servant as defined in 2 [clause (c) of section 2 of the Prevention of Corruption Act, 1988.]”

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17. Aforesaid provision of law suggests that power to investigate offence punishable under the Act should lie with an officer not below the rank of Deputy Superintendent of Police. Exception has been also carved out, whereby the State Government by general or specific order may authorize a police officer not below the rank of Inspector to investigate an offence punishable under this Act. When the power of investigation is with the police, the necessary corollary would be that police can register an FIR also.

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18. Offence punishable under Section 30 (2) of the Act is punishable with imprisonment upto three years and thus, is cognizable. On receipt of information regarding the cognizable offence police is otherwise under legal obligation to register an FIR. Once police has power to register the case and to investigate the same, there was otherwise no occasion for the learned Special Court to return the challan on the ground that same was not submitted by the Authorized Officer. Cognizance for offence under Section 30, Sub-Clause 2 of the Act, cannot be said to be barred on the police report, rather mandatory requirement is to have report from the Authorized Officer, which in the case at

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hand, has been admittedly given by the Authorized Officer. This Court with a view to ascertain whether Executive Engineer B&R Division, HPPWD, Gohar, was designated/authorized in terms of Section 36 of the Act, specifically called upon the learned Additional Advocate General to make available notification, if any, issued by the government in that regard.

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19. Today, during proceedings of the case, learned Additional Advocate General, made available copy of notification dated 4.10.2014, issued by the Government of Himachal Pradesh, which is taken on record. Careful perusal of aforesaid notification i.e. PBW(B)F14(6)1/2010 clearly reveals that under Section 36 of the Act, Executive Engineer of the concerned HPPWD Division has been declared to be competent authority to issue report-in-writing against the contractors executing the work under jurisdiction of that division. Since in the case at hand, Executive Engineer B&R Division, Gohar, while making report under Section 36 of the Act specifically apprised the police with regard to commission of offence alleged to have been committed by the accused named in the FIR, there was no occasion, if any, for the learned Special Judge to discharge the accused that too on the ground that report was not submitted to the court by the competent officer as envisaged under Section 36 of the Act. Since entire case came to be instituted against the accused on the basis of report of the Authorized Officer and such report came to be made part of the police report, this Court is persuaded to agree with Mr. B.C. Verma, learned Additional Advocate General that challan submitted against the petitioners-accused for their having committed offence punishable under the aforesaid provisions of law could not have been returned, rather should have been decided on its own merits.

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20. In similar facts and circumstances, coordinate Bench of this Court

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Labh Singh (supra) has held as under:

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“13. Thus, under the Code, the report can be filed only by the police under Section 173 of the Code. Any other person can only file a complaint. The designated officer under Section 36 of the Act definitely is not the Police Officer and, as such, he cannot file a report before the Magistrate.

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Even otherwise, Section 36 of the Act, does not provide for making of a report by the designated Officer to the Court. It only speaks about making of report by the Authorized Officer. Learned Special Judge has noticed Rule 3 of the Rules framed under the Act, which says that the report shall be made in writing by the competent authority empowered by the State Government under Section 36 of the Act, to the Court to take cognizance of an offence under the Act, in the proforma attached to the Rules.

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The rule making power has been vested in the State Government by virtue of Section 40 of the Act. Such provision authorizes the State Government to make rules for the purpose of carrying into effect the provisions of the Act. It is trite that in exercise of power to make rules, the rules cannot be so framed to overside the provisions of the Act itself. Section 36 of the Act itself does not provide for the making of report by the Authorized Officer to the Court. It only provides for making of report by such officer not below the rank of Under Secretary as may be specified by the State Government by a notification. The plain reading of Section 36 thus clearly provides that the State Government by notification can specify the Authorized Officer, who can make the report, with the caveat that such officer should not be below the rank of Under Secretary. In this view of the matter, Rule 3 of the Rules under the Act, cannot be interpreted to bar the power of the Court to take the cognizance in absence of report being made to it by the Authorized Officer.

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Viewed from another angle, Section 36-A of the Act provides power to investigate any offence punishable under the Act, however, with the condition that Police Officer should not be below the rank of Deputy Superintendent of Police. Exception has also been provided whereby the State Government by general or specific order may authorize a Police Officer not below the rank of Inspector to investigate the offence punishable under

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the Act. When the power of investigation is with the police, the necessary corollary would be that the police can register the FIR also. The offence punishable under Section 30 (ii) of the Act is punishable with imprisonment upto three years and thus is cognizable. The police on receipt of information regarding cognizable offence is otherwise under legal mandate to register the FIR.

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Once the police has power to register the case and to investigate the same, it is not understandable as to what will be the use and fate of such investigation, when the report is to be submitted by the Authorized Officer.”

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21. Consequently, in view of the detailed discussion made herein above

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as well as law taken into consideration, present petition is allowed and impugned order dated 19.10.2021 is quashed and set-aside and a direction is issued to the learned Special Judge to proceed with the matter further. Learned counsel for the parties undertake to cause presence of their respective clients before the court below on 22.8.2024 . In the aforesaid terms, present petition is disposed of along with pending applications, if any.

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August 7, 2024

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(manjit)

State of Hp v. Prem Singh

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State of Hp v. Prem Singh

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