ORDER
N.J. Pandya, J.
1. These three applications are ' filed challenging the action of the learned Special Judge, Rajkot when he entertained a private com-plaint and passed an order under Section 156(3) of Cr. P. C. by which he directed an officer not below the rank of the D.I.G. of C.B.I., I. B. Branch, New Delhi to investigate the case and submit his report and chargesheet within one month from the date of the order i.e. 12-4-1993. With the consent of the law this they are disposed of by this common judgment.
2. The complaint came to be presented on 24-3-93 which happened to be a public holiday on account of Cheti Chand. Next day i.e. 25-3-93 was also a public holiday on account of Ramzan-Id. As the learned District Judge was not available, the matter came to be dealt with by the in charge District Judge and on that day, below the complaint, he passed the following order:
Presented by the complainant and his advocate Shri Pandya. Received at 10.50 a.m. on a public holiday. So it is kept for verification and necessary order by the District Judge on 26-3-93.'
3. On the appointed day i.e. on 26-3-92, the learned Special Judge, passed an order as under :
'The complainant is ordered to produce the documentary evidence before passing the order to justify the ease.
Then the order dated 12-4-93 came to be passed which reads as under:
Heard the learned advocate Shri A. B. Pandya for the complainant.
Perused the documentary evidence produced on record.
Under the circumstances, the complaint is hereby ordered to be sent to Central Bureau of Investigation, I. B. Branch, New Delhi for investigation under Section 156(3) of the Code of Criminal Procedure and the officer not below the rank of D.I.G., is directed to investigate the case and submit his report and chargesheet within one month from today and also directed to submit his report every fortnightly before this Court.
Dictated and pronounced in open court on this 12th day of April, 1993 at Rajkot.'.
Sd/
R. M. Parmar,
Special Judge,
Rajkot District, Rajkot.
From the aforesaid orders, an impression is likely to be created that on 12-4-93 when the order came to be passed below exh. 1, which was being treated as Cri. Misc. Application No. 299 of 1993, was passed on the basis of documentary evidence produced. On 26-3-93, production of documentary evidence was ordered.
4. However, the original record which was called for from the Trial Court reveals that except for the documents which were produced along with complaint exh. I, no other documents were produced, in spite of the said order. The documents so produced along with the complaint are listed at exh. 3 and they are 8 in number. Where-ever there will be reference to the original documents they will be referred in original number as Mark 3/1 to 3/8 as the case may be.
5. In the original records, it is to be found that on 26-3-93, possibly after the said order for production of documentary evidence, application exh. 4 for time was given on the ground that for obtaining Government documents, applications have been made and for important personal work, the complainant has gone out and, therefore, time may be granted. That application was granted and from the daily work-sheet of the court, it can be seen that the matter was adjourned to 29-3-1993. On that day, application exh. 5 came to be given which runs into 3 hand written pages and in this application it is stated that he is being pressurised and subjected to mental torture through the District Collector, Rajkot and therefore, for obtaining copies he has sought a long date in para 1. Likewise, in para 2 reference to the very Collector by name, the complainant says that the documents which arc to be obtained from different courts will not be available immediately and therefore, long date be given. In para 3 in general terms the complainant has requested that he may be given date. Again in the last para, selling out reasons in his own way, the complainant has sought date. Said application came to be granted. But no specific date is mentioned to which the matter was adjourned; however, on 6-4-93, an application was submitted requesting that it be taken on board. It was accompanied by an application exh. 7 which was requested to be kept for hearing on 12-4-93. This was the request made in application exh. 7 also. After taking up the matter on board on 6-4-93, the application exh. 7 came to be dealt with in the aforesaid manner on 12-4-93.
6. It may be mentioned here that application exh. 5 which runs in 3 handwritten pages is accompanied by a medical certificate issued by a licenced medical practitioner having the degree of Bachelor of Ayurvedic Medicine and Surgery. It shows that the complainant was suffering from Hypo-tension and is mentally disturbed and is advised rest for ten days. Before the expiry of the ten days, obviously the applications exhs. 6 and 7 were submitted at his instance. On 12-4-1993, said applications were dealt with which resulted into the impugned order and thereafter, the address of D.I.G., Central Bureau of Investigation, I. B., New Delhi was submitted as per application exh. 8. Against the impugned order, present three petitions came to be filed before this Court and is court passed an order in all the three matters on 4-5-93 issuing Rule making it returnable on 7-6-93. Along with the said order ad interim relief in terms of paras 25(B), (C) and (D) in Spl.Cri.Appln.No. 644/93, para 11(B) in Spl.Cri.Appln.No. 526/93 and paras 10(B) and (C) in Spl.Cri.Appln.No. 643/93 was also issued. In between the impugned orderand the ad interim orders passed by this Court, nothing has happened at the instance of the complaint.
7. The net result, therefore, is that the impugned, order came to be passed on 12-4-93 in spite of the fact that on 26-3-93 the very learned Spl.Judge had directed production of the documentary evidence so that the complainant can justify his case. The documents that were already produced along with the complaint, though on record obviously were not found sufficient by the learned Spl.Judge so as lo merit any order and for the justification of the case the complainant was required to produce documentary evidence. This has not been done, yet the order has been passed.
8. Aforesaid factual background is necessary to appreciate the submissions that are made at the bar on behalf of the petitioners, the complainant and the State.
9. At the outset it may be stated that the learned special Judge under the Prevention of Corruption Act 1988 is not in dispute. Nor is it disputed that private complainant can approach the learned Spl.Judge and on the basis of the complaint according to law, cognizance can be taken by the learned Spl. Judge. Disputes start from the facts where a complaint under the Prevention of Corruption Act 1988 can be taken cognizance of, if it is against a public servant with or without sanction as per Section 19 of Prevention of Corruption Act. In that light Section 197 of Cr.P.C. will also have to be considered. Needless to say, according to the complainant, no sanction is necessary. The fact is that the complaint has been filed against as many as 37 accused. As against them, quite a number is admittedly public servant. The complaint is filed without any sanction. It is also not the case where the alleged offence can be separately dealt with in isolation against the group of accused comprising of public servants and those accused who arc not public servants. The reason is that the group of accused who fall in the category of non public servant have not only conspired together but have actively abeted the crime punishable under the Prevention of Corruption Act 1988 and have actually paid bribe as per the complainant. The complainant has not expressed any intention whatsoever of separating these two groups of accused. A bare look at the complaint as well as the aforesaid exhibit referred lo so far from the record of the Trial Court would clearly indicate the reason why.
9A. It would now be pertinent lo refer to the original complaint. The complainant is a resident of Raiya Road area in Rajkot city. He has entered into a transaction with accused No. 27 along with 24 others in respect of the house having block No. 101. It is situated on the land which is referred to as a so called land in respect of which one Nemminalh society was incorporated and its chief promoter was said accused No. 27. Against the purchase of the said block No. 101, the complainant has paid the amount in cash. According to the complainant accused Nos. 1 to 29 were all private individuals and they along with this chief promotor have combined together to perform many illegal activities and with the aid and assistance of accused Nos. 30, 31 and 32 who are practicing advocates at Rajkol have successfully carried out the operation and in that the chief promoter of the said society along with other cabinet ministers who arc accused Nos. 33 to 36, the last one being the Chief Minister himself and thereby a public servant having misused the authority and indulged into corrupt practices. Accused No. 37 is the Additional Col lector, Land Ceiling Act, Rajkot. Said office is presumably one under the Urban Land Ceiling Act. After giving the names of accused and before the body of the complaint starts, various offences under the Indian Penal Code as well as that of Prevention of Corruption Act, 1988 have been listed under the heading 'charge'. They are Indian Penal Code Chapter 9 Sections 161, 162, 163, 164, 166, 170 and Sections 120-A and B, 34/114 and Sections 467, 471, 474, 477 etc. along with the offence under the Prevention of Corruption Act, 1988 Sections 7-A, B, C, D, E and Sections 8, 9, 10, 12 etc.
10. As mentioned earlier, after referring to the transaction of accused No. 27 in para No. 1, in para No. 2, the complainant refers to different acts and the so-called activity leading to the crime as alleged and in the course thereof, he described all 37 of them as either as abettors or involved in an activity which amounts to sedition, as also seditors.
11. Para 3 of the complaint proceeds on the basis that the order dated 16-1-92 Mark 3/8 is a speaking one and is an example of an order passed after obtaining illegal gratification. It further states that neither accused No. 27 nor his companions or owners of the land have any authority to pass any such order. It further alleges that accused Nos. 30, 31 and 32 who are practicing advocates with whose help accused Nos. 33 to 37 the Ministers and Government Officials, in misuse of their powers and misuse of process of law, they cannot pass an order mark 3/8; but with mala fide intentions, the entire process has been carried out by obtaining illegal gratification and accused Nos. 1 to 29 have given by way of bribe Rs. one crore to the Chief Minister which has been given to him through accused Nos. 33, 34, 35 and 37. Accused Nos. 30, 31 and 32 have acted as mediators and wearing a cloud of legal provisions. Aforesaid amount of illegal gratification has reached to the pocket of accused No. 36, which is certainly not in the interest of the State and this act has been perpetrated by accused Nos. 1 to 37, all for their personal gain, self interest by indulging into criminal activity. Later on in Para 3, it is alleged that accused No. 36 is responsible for spreading of corruption which is referred to as misfortune of democracy and further it is alleged that for obtaining additional amount, hired musclcmen have been brought in Rajkol from Porbandar and other places. They are resorting to terrorising activity and making the people to vacate their houses and for this accused No. 36 has given express permission. Accused Nos. 1 to 37 have either given or taken bribe and accordingly they have agreed to accept or attempted to obtain every illegal reward for inducing by corrupt illegal means and thereby having committed the offences as alleged. In the complaint after the allegation referred to above, an English quotation has been patently transcribed in Gujarati script and thereafter affairs of the then Chief Minister of Maharashtra Shri A. R. Antulay has been referred to and the attempt on the part of the complainant is to compare the episode set out in his complaint with the one that was allegedly indulged into by the then Chief Minister of Maharashtra in connection with cement.
12. In para 4 of the complaint it is alleged that the lands which came to be released as per order mark 3/8 were Government lands. On that land right from 1981 buildings were constructed without any permission or has been kept reserved from the concerned authorities and the buildings so constructed weren handed over to the purchasers. All. of a sudden in the year 1992 the Government gets a dream to release the lands. This according to the complainant is a naked truth of the mala fide intention and illegal gratification etc. on the part of the accused more particularly accused No. 36 along with the obligation of accused Nos. 33 to 35 and 37 which of course, according to the complainant, is with the active help of accused Nos. 30, 31 and 32. In this behalf an attempt is made in the remaining part of para No. 4 to make out a case that no sanction is necessary either under Section 197 Cr.P.C. or under Section 19 of the Prevention of Corruption Act, 1988. Because said order itself is illegal one and therefore, not forms part of the duty, official duty and illegal act are required to be separated from each other and as accused are sought to be punished for patently an illegal act, it being descended neither sanction under Section 197, Cr. P. C. nor sanction under Section 19 of the Prevention of Corruption Act would be necessary.
13. Para 5 of the complaint refers to the alleged bogus contracts entered into or executed by accused Nos. 1 to 29. The record of Rajkot Urban Development Authority is also requested to be taken into consideration. Records of the partnership firms of accused No. 27 is also requested to be taken into consideration. So are the orders of the State Government passed by various authorities in connection with the land ceiling, land acquisition etc. Further request is that various litigations pending in different courts at Rajkot at the instance of accused No. 27 initiated by accused Nos. 30. 31, 32 or other junior advocates attached with them or functioning under their direction, they all be taken into consideration and in fact a request is made that records of these various litigation be treated as part of the complaint. Similar is the request with regard to the proceedings in the High Court under the provisions of Urban Land Ceiling Act, 1976 in connection with the land bearing survey No. 146 of village Raiya and other number is required to be considered and it being in the possession of the Government machinery is likely to be misused and it can be treated as in possession of the accused. Hence this complaint be investigated by Central Bureau of Investigation. The court is requested in the facts and circumstances in para 6 to seize the documents pertaining to benami transaction and other connected documents having bearing on the said survey number 146 from the custody of accused Nos. 27 and 28. Likewise in para 7, a request is made for the seizure of all papers pertaining to the order dated 16-1-92 mark 3/8. Lastly in Para 8 a request is made in general terms as to whichever consequential or criminal act that might have been done in connection with the lane bearing survey No. 146 by Ramanlal Nanalal Jasani group for obtaining money has been done at the instance of Chief Minister and all such documents be seized and taken into custody. In para 9 prayer clauses are to be found.
14. Prayer Clause 1 says that all the accused Nos. I to 37 have acted against public interest, corrupt rule cannot be tolerated and therefore, they be proceeded against under the provisions of Anti-Corruption Act and be severely punished. Prayer clause No. 2 is with reference to all 37 accused. It has been requested that they have committed very serious offences and all of them have aided and abetted each other under the name of law and taking shelter thereunder, having done illegal act, they be proceeded against under various provisions of I.P.C. including the offence of sedition and they be severely punished. Again a request is made in the last line of that prayer clause that whatever be the record in possession of various accused it be taken into custody of the court and they be severely punished.
14A. Aforesaid is the resume of the complaint is in Gujarati. In the petitions filed in this Court, the complaint has been translated into English and is on record along with the petitions. If necessary, reference will be made to that English translation also in the course of this judgment.
15. However, the brief resume clearly indicates that what was decided by the learned Spl. Judge on 26-3-93 that the complainant should produce documentary evidence to justify his case before any order can be passed on the complaint, so eminently men list (sic). It is therefore, difficult to comprehend as to why on 12-4-93, the learned Spl. Judge proceeded to pass the aforesaid impugned order without any additional documents having been produced.
16. Mr. Pandya, L.A. for the original complainant-respondent No. 1 has tried to justify this act of the learned Spl. Judge on the basis of the submission in application exh. 7 submitted on 6-4-93. Aforesaid application exh. 7 from the original record indicates that the complaint has been filed on 24-3-93 requesting to deal with the same as per the provisions of Cr.P.C. immediately and investigation thereof is requested to be handed over to the Investigating Agency immediately as the complaint is against the entire State machinery its officers and if insistence is made for production of documents before the court, the accused will be alerted and they will either alter the record or score of the record and thereby frustrate the complaint itself. In fact the complainant further goes to the extent of there being a possibility of a conspiracy hatched' for frustrating the complaint. A request was therefore, made that without any further delay the complaint be handed over to the Central Bureau of Investigation. Thereafter, a reference is made to the cancellation of the order dated 16-1 -92 on 30-3-93 after filing of the complaint, which according to the complainant prima-facic shows that accused have committed wrong deeds and any further is likely to frustrate the complaint. Therefore, under Section 156(3) of Cr.P.C. the complaint should be sent for investigation to Central Bureau of Investigation, New Delhi. It is further submitted that if the court is not going to consider the question of taking cognizance of the complaint or not, there is no need for insistence upon the production of documents and a speedy order is required to be made. The complainant is stated to be under various troubles and mental strain because of the political current after 24-3-93 and he also apprehends physical injury to himself through the medium of the accused. This application was fixed for hearing on 12-4-93 on which date the impugned order came to be passed below complaint exh. 1. Exh. 7 application therefore, remains with the earlier order passed on 6-4-93 as it is fixed for hearing on 12-4-93. If order below exh. 1 i.e. the impugned order, is not even endorsed below exh. 7 it no longer survives.
17. In the aforesaid factual background of the complaint and the development till the date of the impugned order, the learned Counsel appearing for different petitioners in different petition had made various submissions that can be grouped into two parts i.e. technical submissions and factual submissions.
Technical submissions.
A. Subordinate courts cannot entrust the investigation to any authority except referred to in Section 156 of Cr.P.C.
B. The C.B.I, may have an administrative office in Gujarat but it has no police station as understood under the provisions of Section 2(s) of Cr.P.C.
C. C.B.I, is a creature of Delhi Police Establishment Act 1946 and as per Section 6 thereof it cannot operate within the limits of a Slate within Union of India without its sanction/State be heard.
Factual submissions.
A. Complaint as a whole read along with documentary evidence with list exh. 3 docs not make a semblance of an offence.
B. Sanction is necessary.
C. Complaint exh. 7 is nothing else but a subterfuge to get an order for investigation by C. B. I.
D. The impugned order is passed without' application of mind.
E. Alternatively, the court cannot order submission of charge-sheet. It can at best order investigation only.
18. I will now deal with the technical submissions first. In fact, these are the legal submissions. I have heard the learned Counsel Mr. G. Ramaswami, Mr. Santosh Hegde and Mr. N. F. Daftari-party in person. Mr. Santosh Hegde submitted on behalf of the petitioner of Spl.Cri.Appln. No. 644/93 and in his support original accused No. 30 Mr. N. F. Daftari argued in person. Mr. Ramaswami supported Mr. Hegde when he argued on behalf of accused No. 36, the Chief Minister and Mr. S. H. Ponda with Mr. P.S. Champaneri supported Mr. Hegde on behalf of accused No. 35 Shri Dalsukhbhai Godani. Mr. Ramaswami was assisted by Mr. D. K. Trivedi, Government Pleader and Mr. P. M. Raval, Addl. Advocate General. The learned Counsel in their main submission with regard to the first point under the heading of 'legal submissions' referred to Section 156, Cr. P.C. along with which Sections 190 and 177 thereof were pressed into service. The last mentioned section refers to local jurisdiction of a court and it is under Chapter XIII of the Code. Section 156 of Cr.P.C. provides for the police officers' power to investigate cognizable case and it is under Chapter XII. Subsection 1 of Section 156 clearly shows that any officer incharge of a police station may investigate any cognizable case without the order of a Magistrate and that case being the one which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
19. Sub-section 1 of Section 156 of Cr.P.C. will come into play the moment the police officer comes to know about a cognizable offence. Subsection 3 thereof says that any Magistrate empowered under Section 190 may order such an investigation as above-mentioned. When Section 190, Cr.P.C. is referred to, it is to be found that a Magistrate of the First Class, may take cognizance of any offence upon receiving a complaint of facts which constitute such offence; upon a police report of such facts; upon information received from any person other than a police officer, upon his own knowledge, that such offence has been committed.
20. Section 190 further empowers a Magistrate to take cognizance under the aforesaid three circumstances and when this provision is read with Section 156(3) leaves upon an alternative to the Magistrate to order investigation but the investigation is the one 'as above-mentioned' i.e. under Sub-section (1) of Section 156, Cr. P.C.
21. Upon the information received from any person other than the police, a Magistrate may proceed to take cognizance or may order investigation. If he proceeds to take cognizance, it would mean that no investigation is necessary or prima facie he is satisfied that an offence as alleged in the complaint is made out and the contents of the complaint are sufficient for him to proceed further. If he decides the latter course of action he will have to proceed against under Section 200 of Cr.P.C. under Chapter XI. No doubt, as per Section 202, Cr.P.C. instead of taking cognizance immediately on receipt of complaint he may proceed to inquire into the matter himself. This would therefore, mean that a third course of action is open to him. In the instant case he has opted for an order under Section 156(3), Cr.P.C. In order that exh. 1 of aforesaid inquiry application before him can be treated as complaint, the learned party in person Mr. N. F. Daftari has referred to the definition Clause 2(d) Cr. P.C. which defines a complaint. It means that any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The explanation appearing below the definition is not of much concern for the present.
22. The learned Counsel for the petitioner and other supporting respondents as well as party in person therefore, submitted that when exh. 1 was presented before the learned Spl. Judge, assuming for the sake of argument he took it to be a complaint as per the aforesaid definition and decided to proceed therewith, necessarily he was required to act according to the aforesaid provisions of the Code and therefore, the order under Section 156(3) directing the C. B. I. to inquire into the complaint, could not have been passed. Sr. Counsel Mr. Ramaswami had submitted that powers Under Section 156(3) Cr. P.C. are statutory and they have to be exercised with all limitations that a statute has put thereon and after application of mind and not arbitrarily. It must be exercised within the four corners of a statute only.
23. At this stage provisions of the Delhi Special Police Establishment Act 1946 are required to be considered. Section 2 thereof provides for constitution and powers of special establishment having power for investigation in Union territory of offence notified under Section 3. Subsections 2 and 3 thereof provide for the powers of the police officers of the said police establishment and its members; but they arc definitely confined to the Union territory. Section 3 thereof provides for the offences which can be investigated by the Delhi Special Police Establishment Act. Section 4 of the Delhi Special Police Establishment Act provides for superintendence and administration of special police establishment. Section 5 provides for extension of powers and jurisdiction of special police establishment to other areas. Section 5 provides for the power of Central Government to extend the powers and jurisdiction of members of the Delhi Special Police Establishment for the Investigation of any offence or classes of offences specified in a notification under Section 3. Section 6 is relevant for the purpose which is required to be quoted in extenso.
6. Consent of Slate Government to exercise of powers and jurisdiction. Nothing contained in Section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to excrcise powers and jurisdiction in any area in a Slate, not being a Union territory or railway area, without the consent of the Government of that State.
Sections 5 and 6 of the Delhi Special Police Establishment Act, when are read together, a situation arises that a member of the Delhi Special Police Establishment cannot operate within the territory of a State of the Union of India without the consent of the State Government. In my opinion, this is clearly in keeping with the idea in mind a Federation of States. It is the essence of federalism that the Central or Union Government shall have to obtain consent of the State Government-- that it - federating unit, if it is to exercise its police powers within the territory of a State.
24. In the aforesaid statutory background, it is quite clear that the Delhi Special Police Establishment has no police station within the State nor could it without consent of the State operate within the State of Gujarat. The learned Spl. Judge while exercising power under the Cr.P.C., primarily was confined to the aforesaid provision and could have based no other power but handed over the investigation to the State Police viz. if at all he was satisfied in that behalf. There is therefore, no scope whatsoever for him to hand over the investigation to the Delhi Special Police Establishment as done in the impugned order.
25. If at all there was any need to bring any Delhi Special Police Establishment, as per the decision of the Supreme Court in the case of State of West Bengal v. Sampatlal, reported in AIR 1985 SC 195 : 1985 Cri LJ 516 the State Government was required to be heard. A latest decision on the point to be considered is 1991 Cri LJ 125 reported in the case of State of Rajasthan v. Phool Chand Garg. The learned Judges of the Rajasthan High Court were dealing with a similar case and after discussing the statutory as well as residuary aspect as before them, in para 4 at page 128, they have summarised the decision which is worth quoting at this juncture.
4. After hearing learned Counsel for the petitioner and Mr. J. P. Goyal for the non-petitioner, we have already said that because the investigation was transferred long back to CBI, and it is almost at the final stage, we will not interfere but we will frame the following guidelines :
(i) If an application for transfer of investigation from local police to CBI is given in this Court, notice must be given to the State, the investigation file must be called for perusal and it is not necessary to give any notice to the accused person because the object of investigation is to collect evidence.
(ii) Generally, the starting investigating agency i.e. the officer of the police where the F.I.R. is lodged should be allowed to continue the investigation and on being satisfied on material on record that the investigating officer is not conducting the investigation on proper lines and is trying to save the real accused, this Court should transfer the investigation from the local police to CBI.
(iii) Transfer of the investigation from the local police to the CBI should not be made merely on asking.
(iv) In case the charge-sheet is filed and cognizance is taken by the Magistrate, then proper course for the court will be to direct the concerned Magistrate, ifnecessary to proceed underSection 173(8) Cr.P.C. but in case the court is satisfied that there is prima facie proof against the person against whom neither charge-sheet has been filed nor cognizance has been taken, the case is of serious nature, the court after giving notice to the aforesaid person may make the appropriate order, and any order in respect of further investigation shall be considered to be an order made under Section 173(8) Cr.P.C.
26. No doubt in the aforesaid West Bengal Case (1985 Cri LJ 516) the Supreme Court and in the said 1991 decision, the Rajasthan High Court (1991 Cri LJ 125) were exercising constitutional powers, which is not available to subordinate courts and therefore, I agree with the submission made at the baron behalf of the petitioner and the supporting respondents that the learned Spl. Judge could not have entrusted the investigation to any party except referred to in Section 156 of Cr. P.C.
27. Aforesaid discussion would take care of the three legal submissions or technical submissions as described by the counsel making them. I will, therefore, now go to the factual aspect of the matter.
28. Needless to say the petitioner of the respective petition and the supporting respondents are not only challenging the impugned order on the aforesaid technical points but they are also challenging on the factual aspect to be discussed hereafter and at the end they are praying for quashing of the complaint itself. Everything centres on submission that the complaint as a whole does not make a semblance of an offence much less, therefore, there could be an order of investigation.
29. It may no doubt be stated at this stage that the learned advocate Mr. Pandya for the complainant had fairly conceded that the impugned order to the extent to which it pertains to the sub mission of charge-sheet, cannot be sustained. There is an agreement therefore, on both the sides with regard to this particular part of the order. No doubt Mr. Pandya on behalf of the original complainant seriously disputes rest of the submissions.
30. The complaint has been summarised in the earlier part of this judgment and its English translation has been produced before the court and the same will be referred to as and when necessary. Before that I would refer to a case reported in AIR 1992 SC 604 : 1992 Cri LJ 527 in the case of State of Haryana v. Bhajan Lal where the Supreme Court has indicated the circumstances in which extraordinary power under Article 226 or inherent powers Under Section 482, Cr. P.O. can be exercised by a High Court. The discussion contained in para 108, as summarised by the Editors of the aforesaid renowned journal under the Head Note(E) is worth noting hereunder:
In the following categories of cases, the High Court may in exercise of powers under Art. 226 or under Section 482 of Cr.P.C. may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, power should be exercised sparingly and that too in the rarest of rare cases.
(1) Where the allegations made in the First Information Report of the complaint, even if they arc taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the F. I. R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
31. Mr. Pandya, L.A. for the original complainant in reply had cited a case reported in AIR 1992 SC 1930 : 1992 Cri LJ 3450 in the case of Jayant Vitamins Ltd. v. Chaitanyakumar, where the learned Judges were pleased to hold that investigation into an offence is the statutory function of the police and the superintendence thereof is vested in the State Government and the Court is not justified without any compelling and justifiable reason to interfere with the investigation. Thus where the investigation which is still on its way and the further investigation in the offence is legally permissible as contemplated by Section 173(8) of Cr. P.C. the quashing of the investigation by the High Court would not be permissible. However, as one reads the judgment relied upon by Mr. Pandya, L. A. on behalf of the original complainant, it becomes clear at once that it was given on the basis of facts disclosed in that case and for this purpose para 4 of the judgment at page 1931 (of AIR): (at p. 3451 of Cri LJ) is quite eloquent. The submission on behalf of the appellant was to the effect that the High Court has misunderstood and misappreciated the allegation in the FIR which is given in a combined form consisting of various instances of cheating and misappropriation and after carefully examining the impugned order and other connected papers, the Hon'ble Judges of the Supreme Court felt that the High Court was not justified in quashing the investigation which was still on its way. As against that, aforesaid summary of the guidelines as carried out by the Rajasthan High Court, of course, relied upon by the Supreme Court, would be the proper principles to be kept in mind while dealing with the request for quashing a complaint.
32. The English version of the complaint which I am referring to for the purpose of this judgment, is at page 35 of Spl.Cri.Appln. No. 643/93. As stated above, in para 1 of. the complaint, reference is made to the purchase of a building ten years back. In para 2 at the outset, allegations against accused Nos. 1 to 29 of organising different types of bogus and benami transactions are made. Then allegations against accused Nos. 30, 31 and 32 w ho are the advocates is made, which is that whatever the accused Nos. 1 to 29 have done, they have done with the help of these three accused. Said three advocates have miscarried and misdirected the Government and have tried to increase corrupt practices and have committed offences regarding above charges. Then come the allegations against the Chief Minister and his colleagues.
33. This would mean that accused Nos. 1 to 29 formed core group of criminals who have started their activity at least ten years back which amounted to bogus benami transaction and in that the advocates helped and the Chief Minister and his colleagues actively participated.
34. Except for referring different bogus and benami transactions and the advocates having helped and the remaining accused having actively participated, no factual date about the commission of the offence is to be found. In other words, the allegations as to the offence are of too general a nature to amount any offence whatsoever. In para 3 there is a reference made to the said order' dt. 16-1-92 and after again referring to the accused more particularly accused Nos. 27, 31 to 32, 33 to 37, the last one being an accused referred by designation only i.e. Additional Collector, Land Ceiling Office, Rajkot, there is an assertion that these proceedings are done by getting illegal gratification. In other words, the meaning of the assertion is only this, that illegal gratification has reached to the pocket of accused No. 36 through accused Nos. 30, 31 and 32. The role of accused Nos. 30, 31 and 32, as indicated in this complaint is that of legal jugglery. The amount which reached in the hands of accused No. 36 is specified in para 3 and it is Rs. one crore. Except for this specific allegation, who-collected the amount, where and from whom it was collected, when and by whom was it decided to be given, where and by whom it was to be given, none of these details are found in the complaint. Incidentally, it may be mentioned that present ministry in Gujarat headed by accused No. 36has come into power only in the year 1989 or thereabout. The activity of accused No. 27 in particular and that of his associates from accused Nos. 1 to 29, according to the complainant, date back to a decade or a little more.
35. Aforesaid activity of accused Nos. 1 to 29 starting from the year 1981 is specifically referred to in para 4 and straightway there is a reference to release order mark 3/8 of the year 1992. According to the complainant the very existence of this order is a proof of practicing illegal act and open corruption. Again, no details as to when and where the so called illegal and corrupt act took place, are mentioned. No doubt, document mark 3/8 does Have a date and it is 16-1-92 and therefore, the so-called offences must have taken place prior to the date of this document. The complaint has been filed only in the month the March 1993. It may be mentioned here that there are litigations pending between the complainant and all or any of the accused Nos. 1 to 29 and more particularly accused No. 27. There might be other litigations pending against all or any of them as indicated in the complaint initiated by the persons other than the complainant. It is not the case of the complainant that he came to know about the said order dated 16-1-92 mark 3/8 very recently. Then why does he move the Court on its criminal side in the month of March, 1993 remains a mystery.
36. Later on in para 4, an attempt is made by the complainant to distinguish between the duty and the act done. In my opinion, this has been done with a view to make out a case that sanction is not necessary. This aspect will be dealt with hereafter. Later on in para 5 of the complaint, there is a reference to various documents and records either in the form of proceedings, litigations, Government files and even matters pending in the High Court.
37. One common feature of all set of these documents is that the complainant does not bother to bring copies of the documents. He merely refers to them as lying with the Government in its different offices/departments, in different courts including High Court and various other places.
38. Thus, it appears that the complainant is unable to bring these documents and therefore, the Court should do the same on his behalf by getting the matter investigated. The complaint has also been analysed and except for reference to these documents which according to the complainant would make out his case, there is no concrete allegation to be found any where in the complaint about any of the offences. Much less therefore, there could be any specific details about the place where the crime is committed, the person who committed it and of all the accused who aided or abetted when and by whom it is committed. In other words, the complaint is mostly an outpouring of what is perceived by the complainant to be corrupt practice, illegal exercise of power bordering on paranoia in relations to his own transaction which took place before ten years. If there is a large scale conspiracy in relation to aforesaid land of Raiya, in too general a term, therefore, he has tried to make out a case of criminal conspiracy leading to commission of various offences as enumerated in the complaint by way of heading.
39. The complainant can be excused for being subjective and for indulging in allegations which can be summarised as vaporous generalities devoid of any substance. But for the learned Spl. Judge to be carried away in this manner is totally inexcusable. He is an experienced judicial officer vested with powers under the Prevention of Corruption Act, 1988. On reading the complaint he should ask himself certain questions which as a Judge, while conducting criminal case, he was required to ask. By this I mean questions required to be considered while framing charge. For this purpose reference may be made to Chapter 17 of Cr. P.C. as also Sections 227 and 228 of Cr. P.C. contained in Chapter 18 which provides trial before a court of session. The upshot of the discussion so far is that the complainant in too general terms comes before the court of session that he suspects that offences having been committed as a part of conspiracy and court may get it investigated because the records and documentary evidence are not with him and after investigation the court may proceed; in other words, the complaint is only in the nature of a request for collection of evidence for the complainant. At the end of this exercise, the offence may or may not be disclosed. No doubt, relying upon the document mark 3/8 dated 16-1 -92 the complainant has been strenuously tried to make out a case of the document by itself disclosing commission of a crime. The party in person Mr. N. F. Daftari had on the contrary referred to that very document as an answer to the very complaint. The document in question referred in para 3 of the L.P.A.No. 72/ 89 in which it was agreed that Ceiling Act case will be reviewed again under Section 34 as a consequence to various orders of the Tribunal High Court etc. being cancelled and set aside and the Government was at liberty to decide the whole case again Under Section 34 of the Ceiling Act 1976. Accordingly the case was reviewed in connection with as many as 24 different persons whose names have been given at page 8 of the order and accordingly, final statement under Section 9 dated 29-8-86 and the further proceedings thereafter were set aside with consequences to follow. Pursuant to form No.. 1 that was filled in by the holders of the land under the provisions of Urban Land (Ceiling and Regulations) Act 1976 and since the Dy. Collector who was the Competent Authority had passed an order dt. 25-9-86 and that is how the proceedings before the Tribunal the High Court came to be filed and ultimately in the course of the L.P.A. the matter was agreed to be reviewed and the result is the order dt. 16-1-92 mark 3/8.
40. If, in any manner it can be said that this order is illegal, proper proceedings are required to be taken and if the allegation is that it is in colourable exercise of power, there again a declaration is required to be sought. But to say that this order itself is an example of corruption and illegal exercise of power is nothing else but subjective evaluation put on it by the complainant. This is why in the copy of the document mark 3/8 in the original file there is an endorsement made in the handwriting presumably of the complainant or at his instance by the learned advocate that it is a document tainted with corruption and is liable to be set aside. Now if a party approaches with his closed mind and preconceived notions, he may do so. When a court examines a complaint and deals with the same under the provisions of Cr.P.C. it has to be done with objectivity and reasonableness expected of a judicial officer. The moment this exercise is done, it is quite clear that there is nothing in the complaint or any of the other documents had indicated commission of any crime.
41.It is in this background submission made on behalf of the petitioner and supporting respondents that the learned Spl. Judge while passing the order has not applied his mind, is required to be considered. What has ultimately turned out by way of application exh. 7 is that if the documents produced by the complainant are liable to be tampered with and the accused who are high dignitaries and Govt. officials -- at least from accused No. 32 onwards, are likely to be involved and they would therefore either be obliged to obliterate the record or alter the same to their favour and that is why a request for urgent order to get the matter investigated by C.B.I. However, such an attempt was to obtain time so that documents can be gathered, tagged produced. Wherever copies arc produced by the complainant, his intention and endeavour appear to be that the original documents are required to be taken into custody in the course of the investigation as per Exh. 7 and also a request has been made in the complaint. In either event, the reason given in Exh. 7 application that if the documents are produced the accused will be alterted to their importance with fatal consequences to the complaint, is totally fallacious. In either documents are not in custody of the complainant and therefore, the apprehended danger to them would as well be the consequence whether the investigation is ordered 0or not. In the earlier application, it will be seen that the complainant was going to ask for the copies and get them produced. Then also, the Government officers would have been alerted about their importance. Same would be the position the moment an investigation is ordered.
42. In this back ground it would appear that but for the documents which are yet to be collected and if found necessary, would be taken in custody. Merely on the basis of the complaint, no offence is made out and that precisely was the submission of Mr. Pandya L. A. for the complainant. Repeatedly he stated that this is a complaint on record and therefore, there is no need for the complainant to specify the details in the complaint. Unless the documents arc collected examined and taken into custody, there will be no material to support the assertion made about the commission of crime in the complaint. Thisclcarly would be fatal to the complaint as submitted before the learned Spl. Judge and more so when the impugned order is analysed and evaluated. It therefore, becomes at once clear that the complaint has been filed solely with a view to see that a wide spread investigation is ordered and if, in the process, offence is disclosed the accused can be proceeded against. The complainant has therefore, placed himself in a position where having pressed the button and put the machinery in motion, he would lay back and wait for the result. He would not bother to discharge the primary duty of a complainant viz. to offer proof atleast prima facie in support of assertions made in the complaint as to commission of crime. It is true that in (he complaint in para 5 itself there is a reference to the investigation being carried out by C.B.I. but application Exh. 7 which was given all of a sudden on 8-4-93 and dealt with in the aforesaid manner resulting into the impugned order clearly would indicate that the learned Spl.Judge was successfully manoeuvred by the complainant into ordering investigation under Section 156(3) Cr. P.C. and that too by C.B.I, without producing any additional material whatsoever though specifically ordered to do so on 26-3-93. The reasons advanced in application Exh. 7 for non production of documents would not bear any scrutiny whatsoever.
43. At this juncture, I would like to refer to the authorities that were cited at the bar. In AIR 1976 SC 1672 : (1976 Cri LJ 1361) the difference between an inquiry under Section 202 Cr. P.C. by the learned Magistrate and ordering investigation under Section 56(3) Cr. P.C. has been dealt with. The learned Magistrate would apply his mind for proceedings Under Section 200 Cr.P.C. and that would amount to taking cognizance of the matter. Ordering of investigation under Section 156(3) Cr. P.C. would not amount to taking cognizance but at the same time with reference to provisions of Sections 190, 177 and 2(d) of the Code, it could be ordered only if there is an offence disclosed. All and every applications received would be sufficient for investigation under Section 156(3) by the police officer of the area where allegedly the crime was committed unless an offence was disclosed prima facie from the contents of the complaint which may include accompanying documents also. Much less therefore, there could have been an order for investigation by C.B.I. As pointed out by Mr. N. S. Dafatry, the party in person, the first order for verification by the incharge District Judge on 24-3-93 would indicate that first step in the direction of proceeding under Section 200 Cr.P.C. Later on the learned Spl. Judge as District and Sessions Judge for the district has directed for the production of additional documents to justify the case of the complainant and that order is followed by the impugned order. It would therefore mean that what was initially indicated to be an inquiry Under Section 200, no doubt as perthe making up of mind of the incharge District Judge, as reflected in his order, was pushed back rightly because the Spl. Judge felt that for the decision of the case alleged in the complain, more documents are required. Thereafter, without addition of any document when the order under Section 156(3) Cr.P.C. is passed, it is quite obvious that there is non application of mind.
44. AIR 1972 SC 2639 would show that Section 156(3) inquiry is being conducted by the police with regard to a cognizable offence when its attention is drawn to the commission of that offence on information being transmitted by the Court to the police. It is therefore, not a court proceedings nor the police can be said to be a delegate of the court.
45. AIR 1964 SC 72 in the course of the discussion has observed that power is to be used honestly and bona fide and for a purpose. Necessarily therefore, it cannot be used arbitrarily. This is too wellknown a principle, to require any further discussion.
46. (1970) 1 SCC 496 is on the point of submission of charge sheet. As ordered by the learned Spl.Judge, as stated above this point is conceded by Mr. Pandya L.A. for the complainant. Hence I do not discuss it further.
47. I have, therefore, no hesitation in holding that the complaint, as a whole read along with the documentary evidence with list Exh. 3, does not disclose any offence and that it was filed only with a view to get an order Under Section 156(3) Cr. P.C. and that the impugned order is passed without application of mind.
48. With regard to the submission relating to sanction, it is quite apparent that sanction is necessary. When a charge under Prevention of Corruption Act is made against a public servant, Section 19 of the said Act will automatically come into play. In para 4 of the complaint, an attempt has been made to distinguish official duty and the illegal act and the act done would be futile because the very basis of the offence under the Prevention of Corruption Act is obtaining illegal gratification etc. Unless the accused is a public servant, there cannot be an offence under the Prevention of Corruption Act and therefore, sanction under Section 19 of the Act is a must. This aspect has also been over looked by the learned Spl. Judge, which would be an additional ground to hold that the order is without application of mind. I therefore, agree with the submission made on behalf of the petitioners and the supporting respondents. Necessarily therefore, the submission made on behalf of the complainant that the sanction is not necessary will have to be rejected and is hereby rejected.
49. An attempt was made on behalf of the complainant to make out a case of public interest litigation in relation to the complaint. Mr. Pandya L.A. for the complainant had placed considerable emphasis and excelled himself when he made me to read the original complaint which is in Gujarati. But when the complaint is scrutinised it is quite obvious that the complainant has got personal interest in it and no amount of ingenuity in drafting nor power of eloquence would make out in a litigation initiated for public interest by a spirited citizen. As noted earlier, the complainant is very much interested personally. He has purchased a building ten years back from accused No. 27 and his associates. He is subjected to pressure for giving extra money as per para 3 of his complaint. Later on in para 4 he says that he along with other residents of the society was compelled to contribute by accused No. 27 through his agents so that a sum of Rs. two crores can be collected. It is therefore, not possible to say that he has no interest in the outcome of the litigation. The case reported in AIR 1990 SC 2060 is relied upon for this purpose where public interest litigation and its nature has been explained. According to this decision, present complaint can never be termed to be public interest litigation. I have come to the conclusion that the complaint does not disclose an offence and generally in keeping with the decision reported in AIR 1992 SC 604 : 1992 Cri LJ 527 in the case of State of Haryana v. Bhaganlal, I am of the opinion that the complaint is required to be quashed. Accordingly the petitions are allowed. The complaint dealt with as Cri. Misc. Appln. No. 299 of 1993 by the learned Spl. Judge, Rajkot is hereby quashed and set aside. The orders passed thereon are hereby quashed and set aside.
Rule made absolute in all matters.