Dismissed

Smt. Shakuntala Devi Wife of Shri Pooranmal Saini v. State of Rajasthan

Rajasthan HC9 Sept 2022CRLR/363/2022

Case brief

AI extract

What is this about?

This criminal revision petition challenged orders rejecting a complaint invoking investigation powers under Section 156(3) CrPC against public servants accused of corruption. The court held that prior sanction is mandatory when alleged offences relate to official duties under the PC Act, 1988, and dismissed the petition upholding the lower courts' orders.

What did the court decide?

The criminal revision petition was dismissed; lower order dated 08.02.2022 affirmed.

Smt. Shakuntala Devi Wife of Shri… — Pension and Retirement Benefits | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Revision Petition No. 363/2022

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Smt. Shakuntala Devi Wife Of Shri Pooranmal Saini, Aged About 39 Years, Resident Of Ramgarh, Tehsil And Thana Ramgarh, District Alwar (Raj)

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----Petitioner

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Versus

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State Of Rajasthan, Through P.p

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Kailash Chand Sharma, Sub Divisional Officer, Ramgarh, District Alwar (Raj)

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Ghamandi Lal Meena, Tehsildar And Executive Engineer Nagar Palika Ramgarh Alwar (Raj)

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Pramraj Meena, Development Officer Panchayat Samiti Ramgarh District Alwar (Raj)

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Safia Khan Wife Of Zubair Khan, Mla Ramgarh, District Alwar

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Zubair Khan Son Of Bag Singh, Resident Ramgarh At Present Shanti Kunj Alwar

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Deepaknandi Director And Special Secretary, Secretariat, Jaipur

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----Respondents

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For Petitioner(s)	: Mr. Sandesh Khandelwal,Adv.
For Respondent(s)	: Mr. Atul Sharma, P.P.
	Ms. Shivani Kalara, Adv.
	Mr. Saurabh Jain,Adv.

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HON'BLE MR. JUSTICE KULDEEP MATHUR

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J U D G M E N T

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PRONOUNCED ON ::: 09/09/2022 RESERVED ON ::: 26/08/2022

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The petitioner Smt. Shakuntala Devi filed a complaint dated 10.01.2022 before Senior Civil Judge cum Additional Chief Judicial Magistrate, Ramgarh, seeking order of investigation under Section

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(2 of 9)

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156(3) CrPC, which was returned on the ground of jurisdiction vide order dated 18.01.2022. The complaint was thereafter presented before Special Judge, Prevention of Corruption Cases, Alwar which was dismissed vide order dated 08.02.2022 for want of valid sanction as required by operation of Section 17-A and 19 of Prevention of Corruption Act, 1988 (hereinafter referred to as ‘PC Act, 1988’). The instant criminal revision petition has been preferred by the petitioner assailing the above mentioned orders.

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Facts in brief are that the petitioner filed a complaint against respondent Nos. 2 to 7 for offences punishable under Section 420, 467, 478, 471 & 120-B IPC before Senior Civil Judge cum Additional Chief Judicial Magistrate, Ramgarh stating inter alia that she was elected Sarpanch of Panchayat Samiti, Ramgarh w.e.f 22.01.2020. While the petitioner was holding the post of Sarpanch, a notification dated 25.03.2021 came to be issued by the State Govt. declaring Panchayat Samiti, Ramgarh as Nagar Palika (Muncipality). Another notification dated 01.06.2021 was subsequently issued stating that Sarpanch of Panchayat having highest population and second highest population will be Chairman and Vice-Chairman of the newly formed Nagar Palikas (Municipalities) respectively. The petitioner being Sarpanch of Panchayat with the highest population was entitled to be Chairman of the newly formed Nagar Palika (Muncipality). In the complaint, it was further stated that respondent Nos.2, 5 and 6 had entered into a criminal conspiracy or criminal misconduct and demanded a sum of Rs.30 lakhs from the petitioner to facilitate her appointment as the Chairman of newly formed Nagar Palika (Municipality), Ramgarh. The petitioner did not accede to the

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(3 of 9)

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aforesaid illegal gratification demanded by the respondents. The respondents in pursuance of the criminal conspiracy lodged a false complaint against the petitioner on 25.05.2021 in the name of one Khurshid S/o Isaak. It is also stated that on 28.05.2021, Respondent No.2 constituted a three-member committee consisting of Tehsildar, Ramgarh, Vikaas Adhikari, Panchayat Samiti, Ramgarh and Executive Engineer, Nagar Palika, Ramgarh to inquire into the allegations made against the petitioner in the complaint dated 25.05.2021. The aforesaid committee in turn submitted a report against the petitioner, which was forwarded by respondent No.2 to the Director cum Special Secretary, Department of Local Self-Govt, Govt. of Rajasthan i.e. Respondent No.7. A show cause notice was issued by the office of Respondent No.7 to the petitioner, consequently, depriving the petitioner of appointment as the Chairman of newly formed Nagar Palika (Muncipality), Ramgarh.

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In the complaint filed before Senior Civil Judge cum Additional Chief Judicial Magistrate, Ramgarh against Respondent Nos.2 to 7, it was stated that the petitioner had registered an FIR No.592/2021 against Khurshid S/o Isaak resident of Ramgarh (Alwar) for offence punishable under Section 506 IPC as she had received constant threats in this name. The police after investigation though found the allegations levelled in the FIR to be correct but in the final report recorded that there is no person by the name of Khurshid S/o Isaak residing in Ramgarh (Alwar). In view of aforesaid final report submitted by the police authorities, it is clear that respondent Nos.2, 5 & 6 created false and fabricated documents against petitioner in the name of one Khurshid S/o

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(4 of 9) [CRLR-363/2022]

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Isaak to deprive her from becoming the Chairman of Nagar Palika (Muncipality), Ramagarh. The petitioner requested that the complaint filed against the respondent Nos.2 to 7 for offences punishable under Section 420, 467, 478, 471 and 120-B IPC may be sent for investigation by exercising powers under 156(3) CrPC.

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Learned Senior Civil Judge cum Additional Chief Judicial Magistrate, Ramgarh vide order dated 18.01.2022 returned the complaint on the grounds that the alleged offences were punishable under the PC Act, 1988 and therefore, it did not have powers to order investigation under Section 156(3) of CrPC.

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On 24.01.2022, the petitioner filed a complaint before the court of Special Judge, Prevention of Corruption Cases, Alwar seeking order for investigation under Section 156(3) CrPC while incorporating relevant penal sections of the PC Act, 1988. The court of Special Judge, Prevention of Corruption Cases, Alwar vide order dated 08.02.2022, rejected the complaint on the ground that respondents are public servants and therefore, neither investigation nor prosecution can be ordered against them by virtue of Section 17A Section 19 of the PC Act, 1988 without previous sanction from the authority competent to remove them from office.

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Learned counsel for the petitioner submitted that looking to the accusations alleged in the complaint filed before Senior Civil Judge cum Additional Chief Judicial Magistrate, Ramgarh, it is clear that respondent Nos.2 to 7 had entered into a criminal conspiracy or in criminal misconduct against petitioner, which is not part of the official duties of a government servant. Learned counsel for the petitioner further submitted that the petitioner had

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(5 of 9)

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approached the court of Special Judge, Prevention of Corruption Cases, Alwar only after the complaint filed against respondent Nos.2 to 7 was returned on the ground that the allegations levelled in the complaint disclosed commission of offences punishable under the PC Act, 1988. Counsel urged that the complaint ought to have been sent for investigation under Section 156(3) CrPC by the Senior Civil Judge cum Additional Chief Judicial Magistrate, Ramgarh for offences punishable under Sections 420, 467, 468, 471 and 120-B IPC. Reliance was placed on judgments rendered by the Hon’ble Supreme Court in the cases of Station House Officer CBI/ACB/Bangalore vs. B.A. Srinivasan & Anr. reported in (2020) 2 SCC 153 and Anil Deshmukh vs. State of Maharashtra (SLP No.9414/2021) . Further reliance was placed on judgments of Hon’ble Kerala High Court, Hon’ble Bombay High Court and this Court in the cases of Venugopal vs. State of Kerala (Crl. MC No.3765 of 2021) , Anil Vasantrao Deshmukh vs. State of Maharashtra & Ors (WP No.1904 of 2021) and Sohan Lal Singathia vs. State of Rajasthan reported in 2018 (2) Criminal Court Cases 218 (Rajasthan) respectively.

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Per contra, learned Public Prosecutor and learned counsel for the private respondents jointly submitted that the alleged acts were committed during discharge of official duties by the respondents and therefore, the court of learned Special Judge rightly concluded that no inquiry or investigation could be ordered without previous sanction of the competent authority in view of the Sections 17-A and 19 of the PC Act, 1988. In support of aforesaid contentions, counsel relied on the judgment rendered by

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(6 of 9)

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the Hon’ble Supreme Court in the case of Anil Kumar & Ors. vs.

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M.K. Aiyappa & Anr. reported in (2013) 10 SCC 705 .

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Heard submissions advanced at Bar and perused the material available on record.

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The powers available to a magistrate under Section 156(3) CrPC are required to be exercised after due application of mind considering the facts of the case. The powers cannot be exercised in a mechanical or casual manner for sending the matter for investigation. The Hon’ble Supreme Court in the Maksud Saiyed v. State of Gujarat & Ors. reported in (2008) 5 SCC 668 held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section200 CrPC, the magistrate is required to apply his mind, in such a case the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the magistrate should be reflected in the order. The mere statement that he has gone through the complaint, document and heard the complainant, as such, as reflected in the order, will not be sufficient.

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The court of Senior Civil Judge cum Additional Chief Judicial Magistrate, Ramgarh vide order dated 18.01.2022, returned the complaint dated 10.01.2022 concluding that the alleged offences were committed by public servants while performing official duties, which is required to be tried in accordance with the provisions of the PC Act, 1988. The order dated 18.01.2022 had culminated into finality as the petitioner in pursuance of the said order approached the court of Special Judge, Prevention of Corruption Cases, Alwar. The order dated 18.01.2022, is therefore,

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(7 of 9)

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not required to be interfered by this Court.

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A plain reading of Section 17-A of the PC Act, 1988 reveals an unambiguous position that no police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the provisions of PC Act, 1988, where the alleged offences is relatable to ‘any recommendation’ made or ‘decision’ taken by public servant in discharge of official functions or duties without the previous approval of the competent authority.

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Section 19 of the PC Act mandates that prior sanction for prosecution against a government servant is a prerequisite for sending a complaint for investigation under Section 156(3) CrPC.

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The Hon’ble Supreme Court in the case of Anil Kumar v.

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M.K. Aiyappa (supra):

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“13. 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 investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra).

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Further, this Court in Criminal Appeal No. 257 of 2011 in the case of General Officer,

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(8 of 9)

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Commanding v. CBI and opined as follows: “Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him….. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.”

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We are of the view that the principles laid down by this Court in the above referred judgments squarely apply to the facts of the present case. We, therefore, find no error in the order passed by the High Court. The appeals lack merit and are accordingly dismissed.”

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The Hon’ble Supreme Court in the case of Manju Surana v. Sunil Arora reported in (2018) 5 SCC 557 has referred the question “whether prior sanction for prosecution qua allegation of corruption in respect of a public servant before setting in motion even the investigative process under Section 156(3) of the code of criminal procedure, 1973” for the consideration of larger bench. However, in the aforesaid case the Hon’ble Supreme Court had observed that a situation may arise where a magistrate may exercise his power under Section 156(3) CrPC in a routine manner resulting in a FIR being registered against a public servant, who may have no role in the allegation made.

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Manifestly thus, the law is well settled that a valid sanction order of the competent authority is a paramount requirement to order investigation under Section 156(3) CrPC and to prosecute a public servant for the offences punishable under the PC Act, 1988.

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In view of the above discussion and finding no shortcoming

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in the order dated 08.02.2022 passed by the learned Special Judge, Prevention of Corruption Cases, Alwar, I find no merit in the instant criminal revision petition which is dismissed as such.

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(KULDEEP MATHUR),J

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KshamaD

Smt. Shakuntala Devi Wife of Shri Pooranmal Saini v. State of Rajasthan

Case brief

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Smt. Shakuntala Devi Wife of Shri Pooranmal Saini v. State of Rajasthan

Case brief

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