Dismissed

Dinesh Chauhan v. State of Hp and Ors.

Himachal Pradesh HC9 Jul 2024CRMMO/277/2022

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh dismissed a writ petition challenging a revisional order that set aside a trial court direction for investigation. The court held that a Chief Judicial Magistrate lacks jurisdiction to order investigation under Section 156(3) Cr.P.C. for offences under the Prevention of Corruption Act, as only a Special Judge empowered to take cognizance can do so, and prior sanc

What did the court decide?

Petition dismissed; order of Revisional Court upheld; no remittal for hearing on notice ordered.

Dinesh Chauhan Vs State of Hp and Ors. — Writ and Judicial Review | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:4757 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MMO No. 277 of 2022 Reserved on: 26.06.2024 Date of Decision: 09.07.2024

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Dinesh Chauhan ...Petitioner

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Versus

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State of Himachal Pradesh & others ...Respondents

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Coram

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Hon’ble Mr. Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ Yes

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For the Petitioner	:	Mr Lovneesh Advocate with Advocate.		Kanwar, Senior Mr Tek Chand,
For the Respondents	:	Ms. Ayushi Negi, General for respo	n	eputy Advocate dents No.1/State.
		Mr. Vinod Kuma for respondents.	r	Gupta, Advocate,

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition under Section

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482 of Cr.P.C. read with Article 227 of the Constitution of India for setting aside the judgment dated 10.12.2019 passed in Criminal Revision No. 28-Cr.R/10 of 2019 by learned Sessions Judge, Sirmour at

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Nahan H.P. (learned Revisional Court), vide which the learned

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Revisional Court allowed the revision and set aside the orders dated

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25.05.2019 and 30.09.2019 passed by the learned Chief Judicial Magistrate, Sirmour at Nahan (learned Trial Court) (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint under Sections 465, 468, 469 & 471 read with Section 120-B of the Indian Penal Code (for short ‘IPC’) and Section 13 of the Prevention of Corruption Act (for short ‘Act’) with the prayer to send it to the SHO/ Investigating Officer, Police Station Nahan for investigation.

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Learned Trial Court sent the complaint to S.H.O. State Vigilance and Anti-Corruption Unit, Nahan, vide order dated 25.05.2019 under Section 156 (3) of Cr.P.C.

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Deputy Superintendent of Police Nahan submitted a report stating that the complaint attracted the offence punishable under the Prevention of Corruption Act. It was sent to the Himachal Pradesh Government to obtain approval for conducting an inquiry/investigation as per Section 17-A of the Act. The Vigilance Bureau had already inquired into the same allegations. The Inquiry

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Officer had recommended the closure of the complaint. Hence, no sanction was granted.

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Learned Trial Court held that Section 17(A) of the Act shall be attracted when any offence was committed in the discharge of the official duties. The offence of taking bribes is not committed in the discharge of the official duties. Hence, a direction was issued to register a formal F.I.R. and conduct an investigation as per law.

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Aggrieved from the order passed by Trial Court, a revision was preferred by the accused named in the complaint which was accepted by the learned Revisional Court. Learned Revisional Court held that the Special Judge is to be treated as a Magistrate. Learned Trial Court had no power to direct the registration of the FIR. No Court can take cognizance of the commission of an offence punishable under the Act except with the previous sanction of the Government. Hence, revision was allowed and the orders passed by the learned Trial Court were set aside.

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Feeling aggrieved and dissatisfied with the order passed by the learned Revisional Court the complainant/petitioner filed the present petition asserting that the learned Revisional Court erred in setting aside the orders passed by the Learned Trial Court. The

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petitioner was not arrayed as a party before the learned Revisional Court. He was a complainant and a necessary party. The revision could not have been accepted by the learned Revisional Court without hearing the complainant. Learned Revisional Court erred in holding that only the Special Judge was competent to order the investigation. The complaint disclosed the commission of offences punishable under various Sections of the IPC as well as the Prevention of Corruption Act; hence, learned Trial Court was competent to issue a direction. The learned Chief Judicial Magistrate has not taken any cognizance and has only directed the police to carry out the investigation. There was no requirement of obtaining sanction. Hence, it was prayed that the present petition be allowed and the order passed by the learned Revisional Court be set aside.

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I have heard Mr. Lovneesh Kanwar, learned Senior Counsel assisted by Mr. Tek Chand, Advocate, for the petitioner, Ms. Ayushi Negi, learned Deputy Advocate General for respondent No.1/State and Mr. Vinod Kumar Gupta, Advocate, for respondents No. 2 and 3.

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Mr. Lovneesh Kanwar, learned Senior Counsel for the petitioner submitted that the learned Revisional Court erred in setting aside the orders passed by the learned Trial Court. The complaint was

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filed not only under the Prevention of Corruption Act but also under the provisions of IPC. Therefore, it was permissible for the learned Trial Court to order the investigation in the present case. The complainant was not arrayed as a party before the learned Revisional Court, even though he had filed the complaint. The order passed by the learned Revisional Court is not sustainable on this ground alone. Hence, he prayed that the present petition be allowed and the order passed by the learned Revisional Court be set aside.

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Ms. Ayushi Negi, learned Deputy Advocate General for the respondent No.1/State submitted that the learned Trial Court had no power to direct the registration of F.I.R. under Section 156(3) of Cr.P.C. She further submitted that the learned Revisional Court had rightly set aside such orders passed by learned Trial Court. She prayed that the present petition be dismissed.

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Mr. Vinod Kumar Gupta, learned counsel for respondents No. 2 and 3 adopted the arguments advanced by Ms. Ayushi Negi, learned Deputy Advocate General. He submitted that the learned Revisional Court had rightly passed the order and no interference was required with it.

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I have given considerable thought to the submissions given

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at Bar and have gone through the records carefully.

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The complaint was filed for the commission of offences punishable under Sections 465, 468, 469 and 471 read with Section 120 of IPC and Section 13 of the Prevention of Corruption Act. Sections 3 and 4 of the Act deal with the Special Judges under the Act and their powers. They read as under:

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“ 3. Power to appoint Special Judges .—(1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely—

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( a ) any offence punishable under this Act; and

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( b ) any conspiracy to commit or any attempt to commit or

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any abetment of any of the offences specified in clause ( a ).

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(2) A person shall not be qualified for appointment as a Special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974).

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4. Cases triable by Special Judges .—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub-section (1) of Section 3 shall be tried by Special Judges only.

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(2) Every offence specified in sub-section (1) of Section 3 shall be tried by the Special Judge for the area within which it was committed, or, as the case may be, by the Special Judge appointed for the case, or where there are more Special Judges

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than one for such area, by such one of them as may be specified in this behalf by the Central Government.

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(3) When trying any case, a Special Judge may also try any offence, other than an offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

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(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a Special Judge shall, as far as practicable, hold the trial of an offence on day-to-day basis.”

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It is apparent from a perusal of Section 4(1) of the Act that the exclusive jurisdiction has been conferred upon the Special Judges to try the offences under the Act and if the accused is to be charged with any other offence, the same is also to be tried by the Special Judge. It was laid down by the Hon’ble Supreme Court in Vivek Gupta v. CBI, (2003) 8 SCC 628: 2004 SCC (Cri) 51: 2003 SCC OnLine SC 1080 that the Special Judge can try the co-accused who has been charged with the offences punishable under IPC and not under the Act because of Section 4 of the Act. It was observed:

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“9. A mere perusal of Section 4 of the Act clearly mandates that as specified in Section 3, offences punishable under the Act or any conspiracy, attempt or abetment to commit an offence under the Act shall be tried by a Special Judge appointed in accordance with Section 3 of the Act. Sub-section (3) of Section 4 also lays down clearly that while trying any case for an offence specified in Section 3 of the Act, a Special Judge may also try any offence other than offences specified in Section 3 with which the accused may under the Code of Criminal Procedure, 1973 be charged at the same trial. It therefore follows that a Special

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Judge trying a case relating to an offence specified in Section 3 of the Act may also try any offence under any other law for which, under the provisions of the Code of Criminal Procedure, the accused may be charged at the same trial. Thus, in cases within the contemplation of Section 4(3) of the Act, the Special Judge is not precluded from trying an offence other than an offence specified in Section 3 of the Act.

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10. We have earlier reproduced the provisions of Section 220 of the Code. The aforesaid section will clearly apply to the case of the co-accused who undoubtedly must be tried by the Special Judge for the offence under Section 120-B read with Section 420 IPC, apart from the offence under the provisions of the Act. This is so because, in the facts of this case, there is no doubt that the offence under the Act and the offence under IPC of which they have been charged were committed in the course of the same transaction. Even Mr Sanyal, the learned Senior Advocate appearing for the appellant did not dispute this position. His submission is that since the co-accused have been charged of offences under the Act, they can be tried by the Special Judge for other offences as well if such other offences have been committed in the course of the same transaction. He submitted that “accused” in sub-section (3) of Section 4 refers to an accused who is charged of offences specified in Section 3 of the Act. Therefore, he contends that since the appellant is not charged of any offence specified in Section 3 of the Act, his case will not be covered by sub-section (3) of Section 4.

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12. We have given to the rival submissions our deep consideration and we are of the view that the contention of the respondent must be upheld. It is worth noticing that sub-section (3) of Section 4 of the Act provides that a Special Judge may “also try any offence” other than an offence specified in Section 3 with which the accused may under the Code of Criminal Procedure be charged at the same trial. We have observed earlier that the provisions of the Code of Criminal Procedure apply to trials under the Act subject to certain modifications as contained in Section 22 of the Act and their exclusion either express or by necessary implication.

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13. Section 223 of the Code of Criminal Procedure has not been excluded either expressly or by necessary implication nor has the same been modified in its application to trials under the Act. The said provision therefore is applicable to the trial of an offence punishable under the Act. The various provisions of the Act which we have quoted earlier make it abundantly clear that under the provisions of the Act, a Special Judge is not precluded altogether from trying any other offence, other than offences specified in Section 3 thereof. A person charged of an offence under the Act may in view of sub-section (3) of Section 4 be charged at the same trial of any offence under any other law with which he may, under the Code of Criminal Procedure, be charged at the same trial. Thus, a public servant who is charged of an offence under the provisions of the Act may be charged by the Special Judge at the same trial of any offence under IPC if the same is committed in a manner contemplated by Section 220 of the Code.

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14. The only narrow question which remains to be answered is whether any other person who is also charged of the same offence with which the co-accused is charged, but which is not an offence specified in Section 3 of the Act, can be tried with the co-accused at the same trial by the Special Judge. We are of the view that since sub-section (3) of Section 4 of the Act authorizes a Special Judge to try any offence other than an offence specified in Section 3 of the Act to which the provisions of Section 220 apply, there is no reason why the provisions of Section 223 of the Code should not apply to such a case. Section 223 in clear terms provides that persons accused of the same offence committed in the course of the same transaction, or persons accused of different offences committed in the course of the same transaction may be charged and tried together. Applying the provisions of Sections 3 and 4 of the Act and Sections 220 and 223 of the Code of Criminal Procedure, it must be held that the appellant and his co-accused may be tried by the Special Judge in the same trial.

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15. This is because the co-accused of the appellant who has been also charged of offences specified in Section 3 of the Act must be tried by the Special Judge, who in view of the provisions of sub-

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section (3) of Section 4 and Section 220 of the Code may also try them of the charge under Section 120-B read with Section 420 IPC. All the three accused, including the appellant, have been charged of the offence under Section 120-B read with Section 420 IPC. If the Special Judge has jurisdiction to try the coaccused for the offence under Section 120-B read with Section 420 IPC, the provisions of Section 223 are attracted. Therefore, it follows that the appellant who is also charged of having committed the same offence in the course of the same transaction may also be tried with them. Otherwise, it appears rather incongruous that some of the conspirators charged of having committed the same offence may be tried by the Special Judge while the remaining conspirators who are also charged of the same offence will be tried by another court because they are not charged of any offence specified in Section 3 of the Act.

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16. Reliance was placed by the respondent on the judgment in Union of India v. I.C. Lala [(1973) 2 SCC 72: 1973 SCC (Cri) 738: AIR 1973 SC 2204 ] but the counsel for the appellant distinguished that case submitting that the facts of that case are distinguishable inasmuch as in that case apart from the two army officers, even the third appellant who was a businessman, was charged of the offence punishable under Section 120-B IPC read with Section 5(2) of the Act. Such being the factual position in that case, Section 3(1)( d ) of the relevant Act was clearly attracted. In the instant case he submitted, there was no charge against the appellant of having conspired to commit an offence punishable under the Act. The aforesaid judgment refers to an earlier decision of this Court in the case of State of A.P. v. Kandimalla Subbaiah [AIR 1961 SC 1241 : (1961) 2 Cri LJ 302] . The learned counsel for the appellant distinguishes that case also for the same reason, since in that case as well the respondent was charged of conspiracy to commit an offence punishable under the Act.

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17. We are, therefore, of the view that in the facts and circumstances of this case, the Special Judge while trying the coaccused of an offence punishable under the provisions of the Act as also an offence punishable under Section 120-B read with Section 420 IPC has the jurisdiction to try the appellant also for

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the offence punishable under Section 120-B read with Section 420 IPC applying the principles incorporated in Section 223 of the Code. We, therefore, affirm the finding of the High Court and dismiss this appeal.”

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Section 156(3) of Cr.P.C. provides that a Magistrate empowered under Section 190 of Cr.P.C. can order an investigation. Section 190 of Cr.P.C. deals with the power of the Magistrate to take cognizance. It is apparent from the combined reading of these two Sections that a Magistrate who can take cognizance of the commission of an offence is competent to order the investigation. Since the learned Trial Court could not have taken cognizance in a complaint alleging the commission of an offence punishable under the Prevention of Corruption Act, therefore, he could not have ordered the investigation under Section 156 (3) of Cr.P.C. It was laid down by Madras High Court in Bagavathiappan Pillai v. State , 2013 SCC OnLine Mad 1150 that only the Court of Special Judge is competent to order the investigation under Section 156 (3) of Cr.P.C. It was observed:-

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“15. The power to take cognizance of offences under the Prevention of Corruption Act has been conferred on the Special Judge by virtue of that Act. Hence, the Application under Section 156(3) of Cr.P.C. disclosing the commission of offences under the Prevention of Corruption Act can be entertained by a Special Judge appointed under Section 3 of the Act, because only that Magistrate or Judge can pass an order under Section 156(3) of Cr.P.C., who is empowered to take cognizance of offences by any Special Act or Code of Criminal Procedure. Although there is no

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specific provision in the Prevention of Corruption Act conferring power on the Special Judge to act under Section 156(3) of Cr.P.C., since the Special Judge by Section 5 of the Prevention of Corruption Act is empowered to take cognizance of offences under that Act, the registration of FIR and its investigation on the Application under Section 156(3) disclosing the commission of the offences under the Prevention of Corruption Act can only be made by the Special Judge.”

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A similar view was taken in Anil Kumar v. M.K. Aiyappa,

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(2013) 10 SCC 705: (2014) 1 SCC (Cri) 35: 2013 SCC OnLine SC 904 wherein it was observed:

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“16. A Special Judge is deemed to be a Magistrate under Section 5(4) of the PC Act and, therefore, clothed with all the Magisterial powers provided under the Code of Criminal Procedure. When a private complaint is filed before the Magistrate, he has two options: he may take cognizance of the offence under Section 190 CrPC or proceed further in enquiry or trial. A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) CrPC. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) CrPC.”

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Thus, the learned Revisional Court had rightly held that the learned Trial Court had no jurisdiction to order an investigation into the present complaint and the order passed by the learned Revisional Court cannot be faulted with.

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It was submitted that the learned Revisional Court erred in holding that sanction under Section 19 of the Act was required for

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ordering the investigation, which is not correct. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Anil Kumar (supra) , that an order directing the investigation under Section 156 (3) of Cr.P.C. would amount to taking cognizance and hence requires sanction. It was observed:

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21. The learned Senior Counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order an investigation against a public servant while invoking powers under Section 156(3) CrPC. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh [(2009) 6 SCC 372: (2009) 2 SCC (L&S) 200] and Subramanian Swamy [(2012) 3 SCC 64: (2012) 1 SCC (Cri) 1041: (2012) 2 SCC (L&S) 666] cases.

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This judgment was followed by the Hon’ble Supreme Court

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in L. Narayana Swamy v. State of Karnataka, (2016) 9 SCC 598: 2016 SCC OnLine SC 908 wherein it was observed:

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Having regard to the ratio of the aforesaid judgment [ Anil Kumar v. M.K. Aiyappa, (2013) 10 SCC 705: (2014) 1 SCC (Cri) 35 ], we have no hesitation in answering the questions of law, as formulated in para 10 above, in the negative. In other words, we

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hold that an order directing further investigation under Section 156(3) CrPC cannot be passed in the absence of a valid sanction.

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The correctness of these judgments was doubted in Manju Surana v. Sunil Arora, (2018) 5 SCC 557: 2018 SCC OnLine SC 280 and the matter was referred to a larger Bench. The answer to the reference is still awaited as noticed in Special Leave to Appeal (Crl.) No(s). 3567-

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3568/2017 titled Shamim Khan vs. Debashish Chakrabarty decided on 16-

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04-2024 as under:

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“ The judgment in Manju Surana (supra) would reveal that the matters were referred to a larger Bench on 27.3.2018. Considering the fact that the question involved is a matter of relevance and such issues arise frequently for consideration before Courts, we are of the considered view that an earlier decision on the question referred is solicited.”

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Therefore, it is not necessary to say anything in this matter

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except that the learned Revisional Court had rightly held that an order under Section 156 (3) of CrPC cannot be passed under the Prevention of Corruption Act without obtaining sanction from the competent authority.

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It has been submitted that the learned Sessions Judge erred in setting aside the orders without issuing notice to the petitioner/complainant. He was a necessary party as he had filed the

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complaint before the learned Chief Judicial Magistrate, Sirmour at Nahan, H.P. It is true that the complainant was entitled to notice; however, in the present case, the complaint was wrongly filed before the learned Chief Judicial Magistrate, Sirmour at Nahan, H.P. who could not have ordered the investigation under Section 156(3) of Cr.P.C., therefore, no fruitful purpose would be served by remitting the matter to the learned Revisional Court to decide it afresh after issuing a notice to the petitioner/complainant because the question of law regarding the competence of learned Chief Judicial Magistrate, Sirmour at Nahan, H.P. to order investigation would remain the same. Hence, the matter is not being remitted to the learned Revisional Court for issuing a notice to the complainant and giving an opportunity of a hearing.

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In view of the above, the present petition fails and the same is dismissed. However, this order will not prevent the complainant

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from approaching the competent Court of law for redressal of his grievance, if otherwise permissible under law.

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( Rakesh Kainthla) Judge

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09^th July, 2024 (ravinder)

Dinesh Chauhan v. State of Hp and Ors.

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Dinesh Chauhan v. State of Hp and Ors.

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