State Through
CBI Vs. Raj Kumar Jain [1998] INSC 381 (4 August 1998)
M.K.
Mukherjee, D.P. Wadhwa
ACT:
HEAD NOTE:
O R D
E R
On
May, 11, 1988, the Central Bureaus of Investigation (CBI), the appellant before
us, registered a case against the respondent, who was then a junior Engineer in
the New Delhi Municipal corporation, under Section 5(2) read with Section 5(1)
(e) of the Prevention of Corruption Act, 1947 ('Act" for short) on the
allegation that he was in possession of assets disproportionate to his known
sources of income. In the investigation that followed, C.B.I. found that the
allegations made against the respondent could not be substantiated and,
accordingly, it submitted its report under Section 173(2) Cr.P.C. before the
Special Judge, Delhi praying for closure of the case.
The
Special Judge declined to accept the report on the ground that after the
investigation was complete, the C.B.I.
was
required to place the materials collected during investigation before the
sanctioning authority and it was for that authority to grant or refuse
sanction. According to the Special Judge, it was only with the opinion of the
sanctioning authority that the C.B.I. could submit its report under Section
173(2) Cr. P.C. With the above observations the Special Judge issued the
following directions:
"
It is directed that further investigation should be conducted and in the first
instance, the prosecution/Investigating officer must approach the concerned
sanctioning authority before coming to the Court to find out if the said
authority would grant permission to prosecute the accused or not."
Aggrieved by the above directions C.B.I. moved the High Court by filing a
revision petition which was dismissed with a fining that the directions issued
by the Special judge were proper and legal. Hence this appeal.
Section
6(1) of the Act, which is relevant for our present purpose, reads as under: -
(1) " No Court shall take cognizance of an offence punishable under
Section 161 (or Section 164) or Section 165 of the Indian penal Code or under
sub-section (2) [ or sub-section (3A) ] of Section 5 of this Act, alleged to
have been committed by a public servant except with the previous sanction, -
(a) in
the case of a person who is employed in connection with the affairs of the [Union] and is not removable from his office save by or
with the sanction of the Central Government ;
(b) in
the case of a person who is employed in connection with the affairs of [a
State] and is not removable from his office save by or with the sanction of the
State Government;
(c) in
the case of any other person, of the authority competent to remove him from his
office.
From a
plain reading of the above Section it is evidently clear that a Court cannot
take cognizance of the offences mentioned therein without sanction of the
appropriate authority. In enacting the above Section the legislature thought of
providing a reasonable protection to public servants in the discharge of the
official functions so that they may perform their duties and obligations
undeterred by vexatious and unnecessary prosecutions. Viewed in that context,
the C.B.I. was under no obligation to place the materials collected during
investigation before the sanctioning authority, when they found that no case
was made out against the respondent. To put it differently, if the C.B.I had
found on investigation that a prima facie case was made out against the
respondent to place him on trial and accordingly prepared a charge-sheet (challan)
against him then only the question of obtaining sanction of the authority under
Section 6(1) of the Act would have arisen for without that the Court would not
be competent to take cognizance of the chargesheet. It must, therefore, be said
that both the special Judge and the High court were patently wrong in the
observing that the C.B.I. was required to obtain sanction from the prosecuting
authority before approaching the Court for accepting the report under Section
173(2) Cr. P.C. for discharge of the respondent.
As
regards the direction for further investigation, it is, of course, true that
the Special Judge has power to so direct if he finds, on consideration of the
police report, that the opinion formed by the Investigating officer seeking
discharge of the respondent is not based on full and complete investigation, as
observed by this Court in Abhinandan Jha vs. Dinesh Mishra [A.I.R. 1968 SC
117].
Unfortunately,
however, in issuing the above direction the Special Judge has not given any
reason whatsoever which prompted him to direct further investigation nor does
it appear tat he has gone through the police report and its accompaniments.
After
recording the above finding the usual order which we are required to make is to
remand the matter to the special Judge with a direction to look into the report
under Section 173(2) Cr. P.C. and the documents referred to therein to decide
whether further investigation should be ordered or not. But considering the
facts, that since the case was registered more than 10 years have elapsed and
that such a direction would further delay the matter we have for ourselves
looked into those documents and found that a thorough investigation has been
made and the opinion expressed by the C.B.I. that no prima facie case was made
out against the respondent is just and proper.
On the
conclusions as above, we allow this appeal and set aside the impugned orders of
the Special Judge and that of the High Court.
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