1998 JTR(SC) 748
1998 AIR(SC) 2985 ; 1998 AIR(SCW) 2837 ; 1998 2 ALD(Cri)(SC) 346 ; 1998 37 AllCriC 559 ; 1998 4 AllMR(SC) 386 ; 1999 1 BBCJ(SC) 9 ; 1998 CriLR 546 ; 1998 3 Crimes(SC) 121 ; 1998 CrLJ 4051 ; 1998 2 EastCrC(SC) 710 ; 1998 2 JCC 241 ; 1998 5 JT 277 ; 1998 3 RCR(Cri) 656 ; 1998 RLR 469 ; 1999 1 RLW(Raj) 65 ; 1998 4 Scale 354 ; 1998 6 SCC 551 ; 1998 SCC(Cri) 1485 ; 1998 SCR 879 ; 1998 3 SCR 957 ; 1999 1 SCT 711 ; 1998 5 SLR 673 ; 1998 KHC 1128 ; 1998 2 KLT(Online) 1250 ; 1998 6 Supreme 232
1998(6) Supreme 232
Supreme Court of India
(From Delhi High Court)
M.K. Mukherjee and D.P. Wadhwa, JJ.
State through CBI -Appellant
versus
Raj Kumar Jain -Respondent
Criminal Appeal No. 590 of 1992
Decided on 4-8-1998
Counsel for the Parties :
For the Appellant : K.N. Rawal, Additional Solicitor General, A.S. Nambiar, Sr. Advocate, (A.K. Srivastava) Advocate for P. Parmeswaran, Advocate.
For the Respondent : R. Mohan, Sr. Advocate, R. Ayyam Perumal, Advocate.
Important Point
In investigation for offence under Section 5(2) r/w Section 5(1)(e) of Prevention of Corruption Act, 1947 if CBI found that no case was made out against respondent, it was under no obligation to place the materials collected during investigation before the sanctioning authority under Section 6 of the Act before approaching the Court under Section 173(2) of Cr.P.C. for discharge of the respondent.
Act
Referred
:CRIMINAL PROCEDURE CODE : S.173(2)
PREVENTION OF CORRUPTION ACT : S.6, S.5(1)(e), S.5(2)
(A) The Prevention of Corruption Act, 1947, read in conjunction with the Code of Criminal Procedure, 1973, governs the prosecution of public servants for offences such as possession of assets disproportionate to known sources of income. Section 5(2) read with Section 5(1)(e) of the Act empowers the CBI to register cases and investigate allegations of corruption against public servants, while Section 6(1) mandates that courts cannot take cognizance of such offences without prior sanction from the appropriate authority. Section 173(2) Cr.P.C. provides the procedural framework for closure reports following investigation. In this case, the CBI concluded that no prima facie case existed against the respondent, a Junior Engineer, and sought to submit a closure report, but the Special Judge required prior sanction and further investigation before accepting the report, a position that the High Court endorsed.
(B) The core legal principles are that the requirement of prior sanction under Section 6(1) of the Prevention of Corruption Act applies only when a court is called upon to take cognizance of an offence and evaluate a charge-sheet, not at the stage of a closure report under Section 173(2) Cr.P.C.; the CBI is not mandated to obtain sanction before approaching the court for disposal of the investigation if no prima facie case is made out; and the Special Judge cannot direct further investigation without recording specific reasons for such a direction.
Facts of the case:
On May 11, 1988, the CBI registered a case against a respondent, who was 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, alleging possession of assets disproportionate to known sources of income. After investigation, the CBI found no substantiation and submitted a closure report under Section 173(2) Cr.P.C. The Special Judge declined to accept the report, holding that sanction was required before the court could dispose of the case, and issued directions for further investigation. The CBI challenged these directions before the High Court, which dismissed the revision, upholding the Special Judges observations. The appeal was then brought before this court.
Findings of Court:
The Special Judge was found to be wrong in holding that the CBI had to obtain sanction from the prosecuting authority before submitting the closure report under Section 173(2) Cr.P.C. The directions for further investigation were deemed improper as the Special Judge did not record any reasons for such direction and did not examine the police report. The court also noted that the case had been pending for over 10 years, and on an examination of the file, it was satisfied that the CBI conducted a thorough investigation and its conclusion of no prima facie case was just and proper.
Issues:
Whether the CBI is required to obtain sanction from the appropriate authority before approaching the court for acceptance of a closure report under Section 173(2) Cr.P.C. where no prima facie case is made out; whether the Special Judge had the authority to direct further investigation without recording reasons; and whether the directions for further investigation were justified in view of the delay and the merits of the investigation.
Ratio Decidendi:
The court held that Section 6(1) of the Prevention of Corruption Act does not apply to a closure report under Section 173(2) Cr.P.C. because the provision operates only when a court is called upon to take cognizance of an offence and evaluate a charge-sheet. The CBI was not under an obligation to seek sanction when it concluded that no prima facie case existed against the respondent. The Special Judges directions for further investigation were set aside for lack of reasoning and proper application of the law, and the appeal was allowed.
Result:
The appeal is allowed. The impugned orders of the Special Judge and the High Court are set aside. The case is disposed of in favor of the respondent.
(A) The Prevention of Corruption Act, 1947, read in conjunction with the Code of Criminal Procedure, 1973, governs the prosecution of public servants for offences such as possession of assets disproportionate to known sources of income. Section 5(2) read with Section 5(1)(e) of the Act empowers the CBI to register cases and investigate allegations of corruption against public servants, while Section 6(1) mandates that courts cannot take cognizance of such offences without prior sanction from the appropriate authority. Section 173(2) Cr.P.C. provides the procedural framework for closure reports following investigation. In this case, the CBI concluded that no prima facie case existed against the respondent, a Junior Engineer, and sought to submit a closure report, but the Special Judge required prior sanction and further investigation before accepting the report, a position that the High Court endorsed.
(B) The core legal principles are that the requirement of prior sanction under Section 6(1) of the Prevention of Corruption Act applies only when a court is called upon to take cognizance of an offence and evaluate a charge-sheet, not at the stage of a closure report under Section 173(2) Cr.P.C.; the CBI is not mandated to obtain sanction before approaching the court for disposal of the investigation if no prima facie case is made out; and the Special Judge cannot direct further investigation without recording specific reasons for such a direction.
Facts of the case:
On May 11, 1988, the CBI registered a case against a respondent, who was 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, alleging possession of assets disproportionate to known sources of income. After investigation, the CBI found no substantiation and submitted a closure report under Section 173(2) Cr.P.C. The Special Judge declined to accept the report, holding that sanction was required before the court could dispose of the case, and issued directions for further investigation. The CBI challenged these directions before the High Court, which dismissed the revision, upholding the Special Judges observations. The appeal was then brought before this court.
Findings of Court:
The Special Judge was found to be wrong in holding that the CBI had to obtain sanction from the prosecuting authority before submitting the closure report under Section 173(2) Cr.P.C. The directions for further investigation were deemed improper as the Special Judge did not record any reasons for such direction and did not examine the police report. The court also noted that the case had been pending for over 10 years, and on an examination of the file, it was satisfied that the CBI conducted a thorough investigation and its conclusion of no prima facie case was just and proper.
Issues:
Whether the CBI is required to obtain sanction from the appropriate authority before approaching the court for acceptance of a closure report under Section 173(2) Cr.P.C. where no prima facie case is made out; whether the Special Judge had the authority to direct further investigation without recording reasons; and whether the directions for further investigation were justified in view of the delay and the merits of the investigation.
Ratio Decidendi:
The court held that Section 6(1) of the Prevention of Corruption Act does not apply to a closure report under Section 173(2) Cr.P.C. because the provision operates only when a court is called upon to take cognizance of an offence and evaluate a charge-sheet. The CBI was not under an obligation to seek sanction when it concluded that no prima facie case existed against the respondent. The Special Judges directions for further investigation were set aside for lack of reasoning and proper application of the law, and the appeal was allowed.
Result:
The appeal is allowed. The impugned orders of the Special Judge and the High Court are set aside. The case is disposed of in favor of the respondent.
Order
On May 11, 1988, the Central Bureau 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.
2. 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.”
3. Aggrieved by the above directions C.B.I. moved the High Court by filing a revision petition which was dismissed with a finding that the directions issued by the Special Judge were proper and legal. Hence this appeal.
4. 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.’’
5. 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 their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions. Viewed in that context, the CBI 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 CBI 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 observing that the CBI 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.
6. 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 v. Dinesh Mishra1. 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 that he has gone through the police report and its accompaniments.
7. 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 CBI that no prima facie case was made out against the respondent is just and proper.
8. 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.
(N.K.R.) Appeal allowed.
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Parallel Citations of other Journals :
State through CBI v. Raj Kumar Jain, 1998(6) Supreme 232 : 1998(V) AD (SC) 577
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