Monday, 12 August 2019

Whether Magistrate can pass order U/S 156(3) of CRPC under prevention of Corruption Act?

Indisputably, the petitioner is a public servant. Perusal of the complaint filed by respondent No. 1 discloses that the main offence alleged to have been committed by the petitioner is of demanding bribe of ` 50,000/-, which is an offence under the Prevention of Corruption Act, 1988 (P.C. Act, for short). By virtue of Section 5 of the P.C. Act, it is the Special Judge, appointed under the said Act who is competent to take cognizance of the offence under the said Act. In the case of "Anil Kumar and others" (supra), the Hon'ble Apex Court has held that a Special Judge is deemed to be Magistrate under Section 5(4) of the P.C. Act and clothed with all the magisterial powers provided under the Cr. P.C.. It is clear from the judgment of the Apex Court in the case supra that when the offence is under the P.C. Act, it is the Special Judge who has to deal with the application under section 156(3) of Cr. P.C.. In the case of "Anilkumar and others" (supra), it has been further held that in such a case Special Judge cannot refer the matter for investigation by police under Section 156(3) of Cr. P.C. against a public servant without valid sanction order, under Section 19(1) of the P.C. Act. It has been also held that the application of mind by Special Judge or Magistrate should reflect in the order and mere statement that he has gone through the complaint/documents and heard the complainant will not be sufficient. In the present case, admittedly the Magistrate, who has passed the impugned order, is not a Special Judge under the P.C. Act and further no sanction under Section 19(1) of P.C. Act was obtained before ordering investigation against the petitioner who is a public servant. In the case of "Bhograj Kisan Bhagai" (supra), it has been held that a Magistrate has no power to take cognizance of the offence which Special Judge is specified to try and Magistrate cannot pass an order under Section 156(3) of Cr. P.C. in respect of offences which Special Judge alone is competent to try. 

IN THE HIGH COURT OF BOMBAY AT GOA

Criminal Writ Petition No. 25 of 2014

Decided On: 31.07.2014

 Nilesh S. Rane Vs.  Ravikanth Yadav

Hon'ble Judges/Coram:
R.V. More and U.V. Bakre, JJ.
Citation: 2015 ALLMR (CRI) 1080


1. Heard Mr. Pangam, learned counsel appearing on behalf of the petitioner and Mr. Amonkar, learned Additional Public Prosecutor appearing on behalf of respondent No. 2. Respondent no. 1, though duly served, has been remaining absent.

2. By this petition, the petitioner, working as Police Inspector of Calangute police Station, has taken exception to the order dated 28.11.2013 passed by the learned Judicial Magistrate, First Class, at Mapusa (Magistrate, for short) in Criminal Miscellaneous Application No. 548/2013/B thereby directing the Police Inspector of Calangute Police Station or any other officer in charge to register the FIR on the basis of complaint dated 28.10.2013 filed by respondent No. 1 herein and to conduct detail investigation of the offences as narrated in the complaint and to file report before the Magistrate.

3. Respondent No. 1, in his complaint dated 28.10.2013 to the Police Inspector, Calangute Police Station, inter alia, alleged that on several occasions, the petitioner visited the premises namely Mehfil Bar & Restaurant, situated at Naika Wada, Calangute, of which he is the manager and without any justification directed closure of the business including restaurant and pub. It was specifically complained that on 18.9.2013 the petitioner along with other police personnel barged into the said premises and started assaulting the customers. It was alleged that the petitioner and Vinod Naik, a police constable, demanded an amount of ` 50,000/- as monthly bribe in order to allow to operate the said business peacefully. It was further alleged that the petitioner and said Vinod had threatened that in the event of failure to pay the said amount, they would falsely implicate respondent No. 1 in a drug case or for prostitution and consequently take him into police custody and assault him. Since no action was taken by the Calangute Police Station, similar complaint dated 5.11.2013 was made by respondent No. 1 to the Superintendent of Police(N), Porvorim, Bardez Goa. Since no action was taken by the Superintendent of Police, respondent No. 1 approached learned Magistrate with an application under Section 156(3) of the Criminal Procedure Code, 1973 ("Cr. P.C.", for short) which came to be registered as Criminal Miscellaneous Application No. 548/2013/B.

4. Upon hearing learned Advocate on behalf of respondent No. 1 and on perusal of the documents produced by him, learned Magistrate passed the order which is impugned in the present petition.

5. Mr. Pangam, learned counsel appearing on behalf of the petitioner submitted that the impugned order is passed without hearing representative of the State and without application of mind. He further pointed out that a complaint dated 5.10.2013 was received from the Sarpanch of Village Panchayat due to which raids were conducted by the petitioner with the assistance of NGO's, including on the premises of the respondent No. 1 and this raid was conducted on 19.10.2013. He submitted that the complaint was filed by respondent No. 1 belatedly on 28.10.2013. He further submitted that the complaint of respondent No. 1 was under the Prevention of Corruption Act, 1988. He relied upon the judgment of the Supreme Court in the case of "Anil Kumar and others Vs. M.K. Aiyappa and another", MANU/SC/1002/2013 : [(2013) 10 SCC 705] and submitted that the learned Magistrate had no jurisdiction to order investigation under Section 156(3) of Cr. P.C., 1973. He further submitted that sanction under Section 19(1) of the Prevention of Corruption Act, 1988 is a pre-condition for ordering investigation against public servant under Section 156(3) of Cr. P.C., even at pre-cognizance stage. He also relied upon the judgment of this Court in the case of "Bhojraj Kisan Bhagai Vs. State of Maharashtra", reported in [2005(2) Bom C.R. (Cri.) 631]. In all the above circumstances, learned counsel urged that the impugned order is perverse and bound to be quashed and set aside.

6. Mr. Amonkar, learned Additional Public Prosecutor submitted that Assistant Public Prosecutor, representing the State, was not heard by the Magistrate and no preliminary inquiry was conducted.

7. We have perused the entire material on record and considered the submissions made by learned counsel for the parties.

8. Respondent No. 1 is the manager of Mehfil Bar and Restaurant situated at Naikawaddo, Calangute, Bardez Goa. Letter dated 16.08.2013, under No. PI/CAL/PS/9194/2013, written by the petitioner to the Sarpanch of Village Panchayat of Calangute, reveals that on 15.08.2013 the establishment Mehfil Bar and Restaurant was raided by the petitioner and documents were checked and there were no valid renewed establishment licence issued by the Calangute Panchayat due to which establishment was asked to stop the operations. Perusal of the letter dated 5.10.2013 of the Sarpanch of Village Panchayat, Calangute reveals that the said intimation dated 17.08.2013, was placed before the panchayat body meeting dated 30.09.013 and it was resolved to ask the Police Inspector, Calangute Police Station as to why night Clubs/Discos are still in operation and to request the police to stop all the establishments which do not possess licences. One of the establishments was the said Mehfil Bar and Restaurant. Several raids were conducted by the petitioner, thereafter. The copy of the station diary entry dated 19.10.2013 of Calangute Police Station reveals that on 19.10.2013 at 4.10 hours, raid was conducted by the petitioner on the said Mehfil bar and Restaurant, to see if dance girls were kept. However, no girls were found inside the said club. It is seen that almost after about 15 days, from the date of said raid of Mehfil Bar and Restaurant, by the petitioner, respondent No. 1 lodged the complaint at Calangute Police Station alleging that the petitioner demanded bribe from respondent No. 1.

9. Indisputably, the petitioner is a public servant. Perusal of the complaint filed by respondent No. 1 discloses that the main offence alleged to have been committed by the petitioner is of demanding bribe of ` 50,000/-, which is an offence under the Prevention of Corruption Act, 1988 (P.C. Act, for short). By virtue of Section 5 of the P.C. Act, it is the Special Judge, appointed under the said Act who is competent to take cognizance of the offence under the said Act. In the case of "Anil Kumar and others" (supra), the Hon'ble Apex Court has held that a Special Judge is deemed to be Magistrate under Section 5(4) of the P.C. Act and clothed with all the magisterial powers provided under the Cr. P.C.. It is clear from the judgment of the Apex Court in the case supra that when the offence is under the P.C. Act, it is the Special Judge who has to deal with the application under section 156(3) of Cr. P.C.. In the case of "Anilkumar and others" (supra), it has been further held that in such a case Special Judge cannot refer the matter for investigation by police under Section 156(3) of Cr. P.C. against a public servant without valid sanction order, under Section 19(1) of the P.C. Act. It has been also held that the application of mind by Special Judge or Magistrate should reflect in the order and mere statement that he has gone through the complaint/documents and heard the complainant will not be sufficient. In the present case, admittedly the Magistrate, who has passed the impugned order, is not a Special Judge under the P.C. Act and further no sanction under Section 19(1) of P.C. Act was obtained before ordering investigation against the petitioner who is a public servant. In the case of "Bhograj Kisan Bhagai" (supra), it has been held that a Magistrate has no power to take cognizance of the offence which Special Judge is specified to try and Magistrate cannot pass an order under Section 156(3) of Cr. P.C. in respect of offences which Special Judge alone is competent to try. Hence, the impugned order is without jurisdiction and therefore liable to be set aside.

10. It is seen that in Criminal Miscellaneous Application No. 548/2013/B, though below the cause title, the presence of the learned Assistant Public prosecutor is marked, however, the reading of the order as a whole reveals that the Assistant Public prosecutor was not heard. Even otherwise the roznama dated 19/11/2013, in the said proceedings, reveals that the learned Magistrate only heard Advocate on behalf of respondent No. 1 and held that prima facie sufficient evidence has been produced by respondent No. 1 as required under Section 156(3) of Cr. P.C. against the petitioner, who is the Police Inspector and Mr. Vinod Naik, who is Police Constable, Buckle No. 4468 and that detail investigation should be carried out and accordingly made that impugned order. The impugned order does not reflect that the Magistrate applied his mind.

11. Considering all the aspects, we are of the sustained view that the learned Magistrate did not have jurisdiction to order registration of FIR and direct investigation into the offence under P.C. Act, as alleged in the complaint dated 28/10/2013 lodged by the respondent No. 1. Even otherwise, there was absolutely no case made out for registration of FIR. The impugned order is, therefore, liable to be quashed and set aside.

12. In the result, petition is allowed.

(a) The impugned order dated 28.11.2013 is quashed and set aside.

(b) Rule is made absolute in the aforesaid terms with no order as to costs.

13. Petition stands disposed of accordingly.


Print Page

No comments:

Post a comment