Vasanti Dubey Vs.
State of Madhya Pradesh
No.166 of 2012 arising out of Special Leave Petition (CRL.) No.1548/2011]
J U D G E M E N T
GYAN SUDHA MISRA, J.
appellant herein has challenged the order dated 24.1.2011 passed by the High
Court of Judicature at Jabalpur by which the Criminal Revision Petition No. 839/2004
was dismissed holding therein that the impugned order passed by the Special Judge
(under the Prevention of Corruption Act, 1988) District Narsinghpur did not
suffer from any apparent error of jurisdiction.
the backdrop of the facts and circumstances of the case to be related hereinafter,
the question inter alia which falls for determination by this Court is whether the
Magistrate/Special Judge could straightway direct for submission of
charge-sheet in case he refused to accept final report/closure report of the police/investigating
agency and thereafter direct the police to submit charge-sheet in case he was
of the opinion that the case was not fit to be closed and it required to be proceeded
The question which also
requires consideration is whether the Special Judge could refuse to accept
closure report and direct reinvestigation of the case for the second time in
order to proceed further although he was confronted with the legal impediment
indicating lack of sanction for prosecution in the matter.
the question for determination is not a new or an extra-ordinary one as the
question has cropped up time and again before this Court as to what course is
left open for a Magistrate in a situation when the police submits final report under
Section 173, Cr.P.C. or closure report is 2submitted by any other investigating
agency stating that the case is not made out on account of lack of evidence or for
any other reason.
before we proceed to deal with the question involved herein, it is essential to
state the salient facts and circumstances of this matter which has reached upto
this Court by way of this special leave petition. On perusal of the materials on
record, it emerges that the appellant - Smt. Vasanti Dubey was posted as the
Block Development Officer, Janpad Panchayat, Gotegon, Narsinghpur (M.P.) and in
that capacity was competent to award a contract for constructing concrete road
in the village Baroda.
The contract was
awarded to one Dinesh Kumar Patel who was the Sarpanch of village Baroda for constructing
the concrete road in the village and was initially paid a sum of Rs.15,000/- vide
cheque No. 101626 dated 27.2.2001 for execution of the contract. He was further
paid a sum of Rs.15,000/- vide cheque No.101629 dated 8.5.2001 for execution of
the contract which was awarded to him.
The awardee Sarpanch
- Dinesh Kumar Patel was still further paid Rs.10,000/- vide cheque No.101635
dated 23.5.2001 and the balance payment of Rs. 10,000/- was also finally paid to
him vide cheque No.319586 dated 1.8.2001 towards full and final settlement of
the consideration for the above mentioned contract. Admittedly, all the afore-mentioned
payments were made to the Sarpanch contractor - Dinesh Kumar Patel which were
due to be paid to him and the cheques were duly encashed.
the Sarpanch/contractor after several days of receipt of the final payment,
filed a complaint against the appellant/BDO - Smt. Vasanti Dubey in the Special
Police Establishment, Lokayukta Office, Jabalpur stating inter-alia that the complainant
- Dinesh Kumar Patel had been paid a sum of Rs.40,000/- only with respect to
the contract awarded to him and when the balance payment of Rs.10,000/- was
demanded by him, the appellant demanded a sum of Rs.3,000/- as commission.
The complainant's further
case is that he although paid a sum of Rs.500/-, he felt aggrieved and hence did
not pay any further amount to the appellant but preferred to lodge a complaint on
7.8.2001 in regard to the illegal demand made by her. Since the alleged incident
was falling within the jurisdiction of the Special Police Establishment, Lokayukta
Office, Bhopal, a case was 4registered against the appellant on the basis of
the complaint on the same date i.e. 7.8.2001 under Sections 7 and 13(1)(d) read
with Section 13(1)(2) of the Prevention of Corruption Act, 1988.
Special Police Establishment, Lokayukta Office, proceeded to investigate the matter
and carried out detailed investigation and also recorded statements of various
persons including that of the complainant on 26.3.2002. In course of
investigation, the complainant resiled from his earlier version and stated that
he had made a false complaint at the instance of someone else whose name he did
Further statement of one
Shankar Singh was also recorded that the complainant had paid Rs.2,500/- to the
appellant when she had gone to the bathroom and the money thereafter was
recovered from her.
The police also seized
various documents from the office of the BDO located in the office of Janpad Gotegaon
which included the files containing the details of the cheques from which payment
had been made to the complainant.
After completion of
the investigation by the Office of Lokayukta who was competent to get the
matter investigated by the police and in view of the statement of the complainant
that he made false complaint at the instance of someone else as also on account
of the fact that the entire payment except Rs. 10,000/- had been made by the
appellant - Smt. Vasanti Dubey to the complainant prior to the date on which the
complaint was filed, it was inferred that the complaint did not disclose commission
of any offence and hence the Lokayukta directed that a closure report be filed
in regard to the complaint lodged against Vasanti Dubey and appropriate action be
initiated against the complainant for lodging a false complaint.
the closure report was submitted before the Special Judge, Narsinghpur but by order
dated 5.8.2002, the Special Judge refused to accept the same. He thus rejected the
closure report and thereafter directed the police to file charge-sheet in the case
against the appellant against which the State Government filed a criminal revision
bearing Criminal Revision No. 1206/2002 in the High Court challenging the order
of the Special Judge who refused to accept the closure report and issued
direction for submission of the charge-sheet against the appellant.
learned single Judge of the High Court by order dated 14.1.2003 was pleased to allow
the Revision Petition and quashed the order passed by the Special Judge who had
refused to accept the closure report and had directed submission of charge-sheet
against the appellant on the ground that there is no power expressly or
impliedly conferred under the Code on a magistrate to call upon the police to
submit a charge-sheet when police had sent a report under Section 169 of the Code
stating that there is no case made out for sending up an accused for a trial.
The learned single
Judge took this view relying upon the ratio of the authoritative pronouncement of
this Court delivered in the matter of Abhinandan Jha & Ors. Vs. Dinesh Mishra1
wherein it was observed that the functions of the magistrate and the police are
entirely different and though the magistrate may or may not accept the report and
take action according to law, he cannot impinge upon the jurisdiction of the police
by compelling them to change their opinion so as to accord with his view.
The learned Judge also
took notice of the observation of the Supreme Court which had further been
pleased to hold therein that the magistrate however, while 1 AIR 1968 SC 117 =
(1967) 3 SCR 668 disagreeing with a final report/closure report of a case can
take cognizance under Section 190(1)(c) or order further investigation under Section
156(3) of the Code of Criminal Procedure but cannot straightaway direct for submission
of charge-sheet to the police.
aforesaid test as laid down by this Court in the case of Abhinandan Jha
(supra), the impugned order passed by the Special Judge, Narsinghpur was held to
be illegal and without jurisdiction and consequently was quashed. However, the learned
single Judge had added an observation in the judgment and order that if the
learned Special Judge thinks it fit and appropriate to take cognizance, the same
can be taken under Section 190(c) of the Code of Criminal Procedure or he may
direct the Lokayukta police for further investigation. As already stated the
revision accordingly was allowed and the impugned order of the Special Judge
dated 5.8.2002 was quashed.
Special Police Establishment, Lokayukta Office, Jabalpur, thereafter again got the
complaint examined in the light of the statement of the witnesses and the
evidence and noticed that there were no materials against the appellant to
proceed as she had made all payments from 27.2.2001 up to 82.8.2001 yet a complaint
dated 7.8.2001 was subsequently filed by the complainant - Dinesh Kumar Patel alleging
that the appellant had demanded commission/bribe of Rs.2,500/- from the complainant
in order to clear his bills which complaint was found to be untrustworthy and hence
unacceptable since all payments had already been received by the complainant
prior to the lodgement of complaint specially in view of the subsequent version
of the complainant that he had lodged a malicious complaint at the instance of a
rival of the appellant.
Special Police Establishment, Lokayukta Office, therefore, once again filed an application/closure
report before the Special Judge, Narsinghpur but the Special Judge, Narsinghpur
this time again rejected the closure report by order dated 18.5.2004 observing therein
that it had been clarified by order dated 5.8.2002 that there is sufficient
basis to take cognizance against the appellant - Smt. Vasanti Dubey and there is
no change in the circumstance on the basis of which closure report can be accepted
clearly overlooking that the High Court had already quashed the order dated 5.8.2002
passed by the Special Judge as it had held that the Special Judge had no jurisdiction
to direct the police to submit charge sheet in case he refuses to accept
closure report although he could take cognizance under Section 190(C) of the
Cr.P.C. or direct further investigation of the case.
In pursuance of this,
further investigation was done by the Special Police Establishment, Lokayukta Office
and closure report was submitted after completion of reinvestigation. On this occasion,
when the Special Judge refused to accept closure report, it was his statutory
and legal duty to either pass a fresh order taking cognizance if he refused to dismiss
the complaint and proceed with the enquiry under Section 200 Cr.P.C. by examining
the complainant after which he had to record reasons why he disagreed with the
But the Special Judge
did not discharge this legal obligation and simply in a mechanical manner
directed the investigating agency to obtain sanction to prosecute the appellant
despite the fact that the investigating agency had consistently reported that
sufficient evidence was not there to justify prosecution of the appellant. At this
stage, if the Special Judge found that there were sufficient ground to proceed,
it could have taken cognizance but having been confronted with the legal
impediment that it could not proceed without sanction for prosecution, the
Special Judge directed to reinvestigate the matter once again for the second
time and also directed the investigating agency to obtain sanction for
the appellant assailed the order of the Special Judge dated 18.5.2004 by filing
a criminal revision petition No. 839/2004 but the High Court on this occasion
dismissed the revision petition and was pleased to hold that the order of the
Special Judge who had refused to accept the closure report for the second time did
not suffer from any apparent error of jurisdiction. The learned single Judge
while dismissing the revision petition observed that it shall still be open to the
appellant to raise all such pleas as are available to her under the law in case
charge-sheet is filed against her.
the learned single Judge completely missed the ratio laid down in the case of Abhinandan
Jha (supra) which had been relied upon by the learned single Judge of the High
Court on an earlier occasion also when the order of the Special Judge refusing to
accept closure report and directing submission of charge-sheet was quashed and
the entire legal position was summed up in unequivocal terms as follows:-
"There is no power,
expressly or impliedly conferred under the Code, on a Magistrate to call upon
the police to submit a charge- sheet, when they have sent a report under Section
169 of the Code, that there is no case made out for sending up an accused for trial.
The functions of the magistrate and the police are entirely different, and though,
the Magistrate may or may not accept the report, and take suitable action according
to law, he cannot impinge upon the jurisdiction of the police, by compelling them
to change their opinion so as to accord with his view.
has been further reiterated and reinforced in a recent judgment of this Court
delivered in the matter of Ram Naresh Prasad vs. State of Jharkhand2, wherein it
has been held that when the police submitted a final report of investigation of
the case which in colloquial term is called closure report, the magistrate cannot
direct the police to submit the charge-sheet. However, on the basis of the
material in the charge-sheet, he may take cognizance or direct further
investigation. In fact, this position is clearly laid down 2 (2009) 11 SCC 299 12under
Section 190 read with Section 156 of the Cr.P.C. itself and the legal position has
been time and again clarified by this Court in several pronouncements viz. in the
matter of Bains vs. State3, wherein their lordships have summarised the
position as follows:-
"1. When a
Magistrate receives a complaint, he may, instead of taking cognizance at once under
Section 190(1)(a) direct a police investigation under Section 156(3) ante; 2. Where,
after completion of the investigation, the police sends an adverse report under
Section 173(1), the Magistrate may take any of the following steps :
If he agrees with police report, and finds that there is no sufficient ground for
proceeding further, he may drop the proceeding and dismiss the complaint.
may not agree with the police report and may take cognizance of the offence on the
basis of the original complaint, under Section 190(1)(a) and proceed to examine
the complainant under Section 200.
if he disagrees with the police report, he may either take cognizance at once upon
the complaint, direct an enquiry under Section 202 and after such 3 AIR 1980 SC
1883 = 1980 (4) SCC 631 13 enquiry take action under Section 203.
However, when the police
submits a final report or closure report in regard to a case which has been
lodged by the informant or complainant, the magistrate cannot direct the police
to straightway submit the charge- sheet as was the view expressed in the matter
of Abhinandan Jha (supra) which was relied upon in the matter of Ram Naresh Prasad
it is undoubtedly true that even after the police report indicates that no case
is made out against the accused, the magistrate can ignore the same and can take
cognizance on applying his mind independently to the case. But in that situation,
he has two options (i) he may not agree with the police report and direct an enquiry
under Section 202 and after such enquiry take action under Section 203. He is
also entitled to take cognizance under Section 190 Cr.P.C. at once if he disagrees
with the adverse police report but even in this circumstance, he cannot straightway
direct submission of the charge-sheet by the police.
the light of the aforesaid legal position, when we examined the merit of the
instant matter, we noticed that the order dated 18.5.2004 passed earlier by the
Special Judge 14straightway directing the police to submit charge-sheet was
quashed by the learned single Judge of the High Court and liberty was left open
to him either to take cognizance under Section 190(c) of the Cr.P.C. or direct
the Lokayukta Police for further investigation. In spite of this order, the Special
Judge did not pass an order taking cognizance which he could have done under
Section 190(c) of the Cr.P.C.
However, he chose to direct
office of the Lokayukta to enter into further investigation which after further
investigation assigned reasons given out hereinbefore, stating that in view of the
statement of the complainant that he had complained at the instance of a rival of
the accused as also the fact that entire payment had already been made by the complainant
prior to the lodgement of complaint, no case was made out against the complainant.
In spite of this, if
the Special Judge considered it legal and appropriate to proceed in the matter,
he could have taken cognizance upon the complaint and could have proceeded further
as per the provision under Section 200 of the Cr.P.C. by examining the complainant
and if there were sufficient ground for proceeding, he could have issued
process for attendance of the accused. However, such process could not have been
issued, unless the magistrate found that the evidence led before him was contradictory
or completely untrustworthy.
Conversely, if he found
from such evidence that sufficient ground was not there for proceeding i.e. no
prima facie case against the accused was made out, he had to dismiss the complaint,
since the complaint did not disclose the commission of any offence.
But instead of taking
any step either by issuing the process or dismissing the complaint at once, he could
have taken immediate step as a third alternative to make an enquiry into the
truth or falsehood of the complaint or for an investigation to be made by the
police for ascertaining whether there was any prima facie evidence so as to justify
the issue of process. In short, on receipt of a complaint, the magistrate is
not bound to take cognizance but he can without taking cognizance direct investigation
by the police under Section 156(3) of Cr.P.C.
Once, however, he
takes cognizance he must examine the complainant and his witnesses under
Section 200. Thereafter, if he requires police investigation or judicial enquiry,
he must proceed under Section 202. But in any case he cannot direct the Police to
straightaway file charge-sheet which needs to be highlighted 16as this point is
often missed by the Magistrates in spite of a series of decisions of this Court
including the case of Abhinandan Jha (supra) and Ram Naresh Prasad (supra)
referred to hereinbefore.
the facts of the instant matter is further tested on the anvil of the aforesaid
legal position, we find that the Special Judge instead of following the procedure
enumerated in the Cr.P.C. appeared to insist on rejecting the closure report given
by the Special Police Establishment, Lokayukta Office and in the process consistently
committed error of law and jurisdiction not only once, but twice.
On the first occasion
when the order of the Special Judge was quashed and set aside by the High Court
granting liberty to the Special Judge either to take cognizance under Section
190(c) or order for further investigation as he had committed an error of
jurisdiction by directing the police to straightway submit the charge-sheet against
the accused-petitioner, the Special Judge did not consider it appropriate to take
cognizance but ordered for further investigation by Lokayukta Police and when
the matter was reinvestigated by the Special Police Establishment of the Lokayukta
Office, the Special Judge in spite of the finding of the investigating agency
holding that no further material to proceed in the matter was found, refused to
accept the closure report and this time it further realized that it could not proceed
in the matter as there was no sanction for prosecution, which the Special Judge
obviously noticed since he was not in a position to take cognizance directly under
Sections 7, 13(1)(d) of the Prevention of Corruption Act in absence of sanction
which was a statutory requirement.
In spite of this, he
refused to accept closure report but recorded a direction to obtain sanction
for prosecution of the appellant and thereafter ordered for reinvestigation of
the complaint for the second time creating a peculiar and anomalous situation
which is not in consonance with the provision of the Code of Criminal Procedure
enumerated under the Chapter relating to conditions requisite for initiation of
may be worthwhile to highlight at this stage that the enquiry under Section 200
Cr.P.C. cannot be given a go-bye if the Magistrate refuses to accept the closure
report submitted by the investigating agency as this enquiry is legally vital to
protect the affected party from a frivolous complaint 18and a vexatious prosecution
in complaint cases.
The relevance, legal
efficacy and vitality of the enquiry enumerated under Section 200 Cr.P.C., therefore,
cannot be undermined, ignored or underplayed as non compliance of enquiry under
Section 200 Cr.P.C. is of vital importance and necessity as it is at this stage
of the enquiry that the conflict between the finding arrived at by the investigating
agency and enquiry by the Magistrate can prima facie justify the filing of the
complaint and also offer a plank and a stage where the justification of the order
of cognizance will come to the fore. This process of enquiry under Section 200 Cr.P.C.
is surely not a decorative piece of legislation but is of great relevance and
value to the complainant as well as the accused.
is no doubt possible to contend that at the stage of taking cognizance or
refusing to take cognizance, only prima facie case has to be seen by the Court.
But the argument would be fit for rejection since it is nothing but mixing up two
different and distinct nature of cases as the principle and procedure applied in
a case based on Police report which is registered on the basis of First Information
Report cannot be allowed to follow the procedure in a complaint case.
A case based on a
complaint cannot be allowed to be dealt with and proceeded as if it were a case
based on Police report. While in a case based on Police report, the Court while
taking cognizance will straightaway examine whether a prima facie case is made
out or not and will not enter into the correctness of the allegation levelled in
the F.I.R., a complaint case requires an enquiry by the Magistrate under Section
200 Cr.P.C. if he takes cognizance of the complaint. In case he refuses to take
cognizance he may either dismiss the complaint or direct the investigating agency
to enter into further investigation.
In case, he does not exercise
either of these two options, he will have to proceed with the enquiry himself as
envisaged and enumerated under Section 200 Cr.P.C. But, he cannot exercise the
fourth option of directing the Police to submit a charge-sheet as such a course
is clearly not envisaged under the Cr.P.C. and more so in a complaint case. As
already stated, this position can be clearly deduced from the catena of decisions
including those referred to hereinbefore but needs to be reinstated as time and
again this magisterial error reaches up to this Court for rectification by
instant matter is one such example and is one step ahead wherein the Special
Judge was confronted with yet another legal impediment of lack of sanction for prosecution
giving rise to a peculiar situation when he noticed and recorded that he could not
proceed in the matter under the Prevention of Corruption Act without sanction
for prosecution, but in spite of this he directed to obtain sanction, ordered
for reinvestigation and consequently refused to accept closure report.
the Special Judge in the instant matter refused to accept the closure report
dated 18.05.2004 without any enquiry or reason why he refused to accept it
which was submitted by the Special Police Establishment, Lokayukta Office, Jabalpur
after reinvestigation for which reasons had been assigned and there was also lack
of sanction for prosecution against the appellant which was necessary for
launching prosecution under the Prevention of Corruption Act, we deem it just
and appropriate to hold that the Special Judge clearly committed error of jurisdiction
by directing reinvestigation of the matter practically for the third time in
spite of his noticing that sanction for prosecution was also 21lacking, apart from
the fact that the Special Police Establishment, Lokayukta Office, after reinvestigation
had given its report why the matter was not fit to be proceeded with.
are therefore of the considered view that the Special Judge in the wake of all these
legal flaws as also the fact that the Special Judge under the circumstance was not
competent to proceed in the matter without sanction for prosecution, could not
have ordered for reinvestigation of the case for the third time by refusing to accept
closure report dated 18.05.2004.
This amounts to sheer
abuse of the process of law resulting into vexatious proceeding and harassment of
the appellant for more than 10 years without discussing any reason why he
disagreed with the report of the Lokayukta and consequently the closure report which
would have emerged if the Special Judge had carefully proceeded in accordance with
the procedure enumerated for initiation of proceeding under the Code of
view of the aforesaid discussion based on the existing facts and circumstances,
we deem it just and appropriate to set aside the impugned order passed by the Special
Judge refusing to accept the closure report dated 18.05.2004 and consequently the
judgment and order of the High Court by which the order of the Special Judge was
upheld, also stands quashed and set aside. Accordingly, the appeal is allowed.
(Asok Kumar Ganguly)
(Gyan Sudha Misra)