K.S. Rathore, J.
1. These are two writ petitions involving similar questions of law and, therefore, both the petitions are being heard together and decided by this common order.
2. The facts of the writ petition No. 6144/2004 are being taken as leading case. The petitioner in the aforesaid writ petitions has prayed for writ, order or direction to quash and set aside FIR Nos. 109/2004 and 110/2004 registered before Anti Corruption Bureau, Jaipur and all investigation and proceedings undertaken in pursuance thereof.
3. The brief facts of the case are that when the petitioner was working as Member, Board of Revenue, Ajmer, an FIR No. 109/2004 under Sections 7, 8, 13(1)(a), 13(d)(2) of Prevention of Corruption Act 1988 read with 120B IPC was registered by the Anti Corruption Bureau on 9.6.2004.
4. The allegation in the FIR was that according to source information illegal benefit was to be granted by the petitioner by passing a review order in a revenue matter titled Kamla Devi v. State. It was mentioned that illegal gratification was being offered on the basis of which the orders were passed wherein first installment was to be received by the petitioner on 4.6.2004. It was also mentioned that the petitioner was habitually accepting illegal gratification. With the aforesaid allegations the FIR was got registered against the petitioner as well as Ramnivas Lavania, Ajay Data, Suresh Bansal, Girish Garg, Mahesh Chandra Garg, Kuku Kasana, Ram Pandey and Rambabu.
5. Learned counsel for the petitioner submits that his case is well covered within the categories on which FIR can be quashed as mentioned in Bhajan Lal's case. He referred the case of State of Haryana v. Bhajan Lal and Ors. reported in AIR 1992 SC 604. The categories, which are mentioned in the aforesaid case are herewith reproduced as under:
(1) Where the allegations made in the first Information Report or the complaint, even if they are 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, justifying an investigation the FIR do not disclose a cognizable offence, Code except under an order of a Magistrate within the purview of Section 155 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 FIR 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 of the Code.
(5) Where the allegation's 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 malafide and/or where the proceeding is maliciously instituted with a view to spite him due to private and personal grudge.'
6. After referring the case of Bhajan Lal learned counsel for the petitioner submits that the allegations in the FIR do not constitute any cognizable offence against the petitioner and further there is legal bar to the institution and continuance of legal proceeding against him and malice is writ large on proceedings taken against him which are even otherwise unnatural and inherently improbable.
7. Learned counsel for the petitioner further submits that there is legal bar for institution and continuance of legal proceedings in form of FIR and investigation.
8. The FIR No. 109 & 110/2004 are no FIR in the eyes of law but are the result of investigation. The Anti Corruption Bureau alleges that it received a source report on 23.5.2004. On that source report facts and evidence was collected based upon which conclusion were reached which were set out in FIR No. 109 & 110 on 9.6.2004. Therefore, the FIR becomes post investigational document and is nothing but charge sheet under Section 173(2) Cr.P.C. No FIR was registered under Section 154 Cr.P.C. on information received on 23.5.2004 though it was obligatory for Anti Corruption Bureau to do so.
9. Learned counsel for the petitioner further submits that no report of the same was sent forthwith to the competent court as is mandated in Section 157 Cr.P.C. The FIR itself is under the circumstances barred by Section 162 Cr.P.C.
10. In support of his submissions learned counsel for the petitioner placed reliance on the following judgments:
(1) 1993 CRLJ 1165
(2) 1975 CRLJ 517
(3) AIR 1961 Kerala 99
(4) 2002 (9) SCC 147
(5) 2001 (9) SCC 581
(6) AIR 1992 SC 604 (supra).
(7) AIR 1993 SC 2644
11. After referring the aforesaid judgments learned counsel for the petitioner submits that the allegations in the FIR pertain to a judgment delivered by petitioner while he was Member Revenue Board, Ajmer on judicial side. The petitioner was in these circumstances covered on account of provisions of Judges Protection Act 1985 which provides for additional protection to Judges to the effect that no criminal proceedings can be instituted or continued against a Judge for anything done or purported to be done except with prior approval of State Government, Central Government, High Court, Supreme Court. Section 3 of Judges Protection Act is reproduced below:
'Additional protection of Judges--
(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of Sub-section (2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any at, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.
(2) Nothing in Sub-section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge.'
12. After giving emphasis on Sub-section (1) of Section 3 of Judges Protection Act he submits that the statute is well aware to provide additional protection to the Judges while discharging their judicial duty or functions. In support of his submissions he placed reliance on the judgment in 1994 (4) SCC 687 (U.P. Judicial Officers' Association v. Union of India and Ors.).
13. Learned counsel for the petitioner further submits that the petitioner is an IAS Officer of Joint Secretary Rank. The Central Vigilance Commission Act, 2003 categorically provides that no investigation can be done for offences under Prevention of Corruption Act in case of a Central Government Employee of the rank of Joint Secretary and above without prior approval of Central Government. The power of appointment and removal which are two essential ingredients to determine the employer which in case of petitioner is the Central Government. Further Anti Corruption Bureau in Rajasthan is a substitute agency of CBI in case of Central Government Employees. The legal bar is given in Section 26 whereby Section 6(a) has been added in Delhi Special Police Establishment Act 1946.
14. Learned counsel for the petitioner referred Section 6A of the Delhi Special Police Establishment Act 1946, which is reproduced as under:
'Approval of Central Government to conduct inquiry or investigation-
(1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 except with the previous approval of the Central Government where such allegation relates to--
(a) the employees of the Central Government of the level of Joint Secretary and above; and
(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
(2) Notwithstanding anything contained in Sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in Clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988.'
15. After referring Section 6-A he submits that there is legal bar to continuation of proceedings in form of investigation against the petitioner.
16. Further the arguments has been raised by learned counsel for the petitioner that the FIR does not disclose any cognizable offence because the ingredients of Section 7, 8, 13(1) and 13(1)(d)(2) of Prevention of Corruption Act are not make out in the instant case. There is nothing to indicate in the FIR that petitioner has been habitually accepting illegal gratification, whereby offence under Section 13(1)(a) is not disclosed.
17. Further there is no abuse of position because the judgment rendered by the petitioner were absolutely correct and in conformity with Rule 13(1) of Rajasthan Land Revenue Industrial Area Allotment Rules (in FIR No. 110/04) as well as power of review as provided (in FIR No. 109/04).
18. Further the judgments of the petitioner were amenable to the corrective and supervisory jurisdiction of this Hon'ble Court.
19. Thus even offence under Section 13(1)(d)(2) is not made out. Offence under Section 7 is also not disclosed as there is no allegation that in what form illegal gratification was obtained and whether any gratification had actually been received. Section 8 does not pertain to the petitioner.
20. The entire FIR and conclusions based in it were result of telephone tapping which has been done absolutely illegally in gross violation of mandate of Hon'ble Apex Court in PUCL case as well as Indian Telegraph Act.
21. Vide Annexure-B submitted with the rejoinder even the Trial Court has held that it would exclude telephonic transcript from considerations altogether.
22. It is submitted that telephone tapping can only be done under Section 5(2) of Telegraph Act in situations of public emergency and public safety. None of these situations had arises in the instant case.
23. Further the guidelines issued by the Supreme Court in PUCL were mandatory and which have been flouted by respondents even on the showing of their own reply.
24. On the ground of malice of the respondents learned counsel for the petitioner submitted that the alleged beneficiary of the order was neither the complainant nor an accused. After the registering the FIR without further ado the ACB as its first action arrested the petitioner on intervening night of 9.6.2004 and 10.6.2004.
25. It is submitted that the ACB's Circular in this regard (submitted as Annexure-C with rejoinder) says that there should not be any arrest in Anti Corruption matters regarding abuse of position. Even the Supreme Court in Jogindar Kumar's case. 1994 (4) SCC 260 relying upon 3rd report of National Police Report has endorsed that arrest should not be made except in following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accuse is given to violent behaviour and is likely to commit further offence unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
26. Learned counsel for the petitioner further submits that the tapping of the telephone is also contrary to the provisions of the Indian Telegraph Act, 1885. More particularly he referred Section 5(2), which is reproduced as under:
'On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order.
Provided that the press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.'
27. By referring Sub-section (2) of Section 5 of the Indian Telegraph Act he submits that tapping can only be conducted by the agency in case of emergency or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India.
28. He also referred the case of People's Union for Civil Liberties (PUCL) v. Union of India and Anr. reported in 1997 (1) SCC 301 wherein the Hon'ble Supreme Court in para No. 35 had laid down the guidelines in the following terms:
(1) An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department of the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one week of the passing of the order.
(2) The order shall require the persons to whom it is addressed to intercept in the course of their transmission by means of a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.
(3) The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary acquire could reasonable be acquired by other means.
(4) The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses, specified in the order, being an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular sent of premises specified or described in the order.
(5) The order under Sections 5(2) of the Act shall, unless renewed, cease to have effect at the end of the period of two months from the date of issue. The authority which issued the order may, at any time before the end of two-month period renew the order if it considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.
(6) The authority which issued the order shall maintain the following records:
(a) the intercepted communications,
(b) the extent to which -the material is disclosed,
(c) the number of persons and their identity to whom any of the material is disclosed,
(d) the extent to which the material is copied, and
(e) the number of copies made of any of the material.
(7) The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.
(8) Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.
(9) There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government.
(a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order, whether there has been any contravention of the provisions of Section 5(2) of the Act.
(b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.
(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section 5(2) of the Act, it shall record the finding to that effect.
29. By referring para 35 as well as Sub-section (2) of Section 5 learned counsel for the petitioner submits that tapping of telephone is not only curtailment of the liberty granted under Article 21 but also contrary to the provisions of Section 5 as the respondents have not complied with the mandatory requirement and more over it is not such case where any integrity, sovereignty and public safety was in question, for that purpose the tapping was required necessary.
30. In conclusion learned counsel for the petitioner submits that the allegations, which are alleged in the FIR are per se unnatural and inherently improbable.
31. By referring FIR No. 110/2004 learned counsel for the petitioner submits that the petitioner got some material typed on 6.6.2004 in Jaipur while the judgment was already pronounced and was in custody of the registry of Revenue Board on 3.6.2004. Till the judgment was pronounced there is no allegation in the FIR that any illegal gratification was received by the petitioner. While in FIR No. 109/2004 it is mentioned that judgment had been secretly rendered on 07.6.2004 while it was already pronounced in open court on 4.6.2004. Thus allegations themselves are inherently improbable.
32. Learned counsel for the petitioner in support of his submissions has referred the judgment rendered in the case of Mohindro v. State of Punjab and Ors. reported in 2001 (9) SCC 581 wherein the Hon'ble Supreme Court has held that refusal by police to register the case-Facts of the case indicating that police did not register the case of appellant while maintaining having conducted an investigation into the matter concerned-Under such circumstances, police directed to duly investigate into the said matter after registering the case of appellant.
33. In view of the provision of Section 157 and 154 there cannot be an enquiry without registering a criminal case.
34. He further submits that herein the instant case the respondents have first undertaken the enquiry and thereafter, after getting the finding of the enquiry got registered FIR against the petitioner, which is per se contrary to the ratio decided by the Hon'ble Supreme Court rendered in the case of Mohindro v. State of Punjab and Ors. (supra).
35. Mr. Hora further placed reliance on the judgment of Mahaveer Prasad v. Surendra Kumar reported in AIR 1982 SC 1043 wherein the Hon'ble Supreme Court has held that tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon.
36. He further submits that since no permission whatsoever is sought as required under Section 5(2) and thereafter, also the respondents are not following the mandatory provisions and guidelines as laid down by Hon'ble Supreme Court under the Indian Telegraph Act. The authority, which issued the order shall maintain the following records:
(a) the intercepted communications.
(b) the extent to which the material is disclosed.
(c) The number of persons and their identity to whom any of the material is disclosed.
(d) the extent to which the material is copied, and
(e) the number of copies made of any of the material.
37. He also referred Sections 24 and 25 of the Telegraph Act, which are reproduced as under:
'24. Unlawfully attempting to learn contents of messages- If any person does any of the acts mentioned in Section 23 with the intention of unlawfully learning the contents of any message or of committing any offence punishable under this Act, he may (in addition to the fine with which he is punishable under Section 23) be punished with imprisonment for a term which may extend to one year.
25. Intentionally damaging or tampering with telegraphs-If any person, intending-
(a) to prevent or obstruct the transmission or delivery of any message, or
(b) to intercept or to acquaint himself with the contents of any message, or
(c) to commit mischief, damages, removes, tampers with or touches any battery, machinery, telegraph line post or other thing whatever, being part of or used in or about any telegraph or in the working thereof, he shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.'
38. After referring aforesaid Sections he again placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of PUCL (supra), reiterating his arguments that safeguards against telephone tapping emanate from right to privacy which flows from Article 21 of the Constitution. Thus any violation of right to privacy would be violation of the guidelines provide by the Supreme Court would amount to violation of Constitutionally protected right under Article 21 of the Constitution.
39. Mr. Hora further referred Section 92 of Information Technology Act and the conditions laid In Section 65(b)(1)(4).
40. In Section 3 additional protection to Judges has been provided, which is referred herein above.
41. In support of his submissions he placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of U.P. Judicial Officers' Association v. Union of India and Ors. reported in 1994 (4) SCC 687 and in Re: Ajay Kumar Pandey reported in 1996 (6) SCC 510.
42. To sum up his case Mr. Hora submits that none of the ingredients, which is necessary with regard to the FIR, has been complied with. They have first made the enquiry, thereafter, the findings of the enquiry was incorporated in the FIR. Furthermore the authorities have not cared to follow the provisions of Section 5(1) Indian Telegraph Act and the directions issued by the Hon'ble Supreme Court in the case of PUCL. Tapping, which are placed reliance for lodging FIR against the petitioner, in such circumstances cannot be considered. Furthermore the respondents have seriously erred not to get the prior sanction from the Central Government, which is necessary as per the provisions of Central Vigilance Commission Act, 2003 and also in accordance with the provisions of Section 6A of the Delhi Special Police Establishment Act 1946.
43. Mr. Hora also distinguished the judgments, which are referred by the respondents and emphatically submits that all the judgments, which are referred by the respondents, are distinguishable and in the aforesaid circumstances the FIR, which are lodged against the petitioner deserves to be quashed and set aside.
44. Per contra learned Addl. Advocate General Mr. Rafiq submits that the FIR are lodged against the petitioner on allegations of his having received illegal gratification in exchange of rendering judgments favourable to certain persons, which therefore, was actuated by corrupt motives.
45. He further submits that nothing illegality has been committed while lodging the FIR against the petitioner for offence under Section 13 of Prevention of Corruption Act. The Anti Corruption Bureau on receipt of source information, undertakes the verification of the general reputation of the concerned person against whom such information is received. In the present case, during the course of verification of the source information report, the Anti Corruption Bureau found the general reputation of the petitioner to the effect that he has been habitually accepting and obtaining illegal gratification and agreeing to accept or attempting to obtain such gratification other than legal remuneration as a motive or reward such as has been mentioned in Section 7 of the Act in lieu of giving favourable judgments. It is, therefore, not necessary that FIR under Section 13 shall be lodged only if a person has been convicted in the past for any offence under Prevention of Corruption Act. Two cases have been registered against the petitioner, which is indicative of the fact that the petitioner was habitual of receiving illegal gratification.
46. Mr. Rafiq further submits that verification in enquiry before lodging the FIR is only to avoid frivolous complaint and to prevent maligning the reputation of a particular person against whom the complaint is received by the Anti Corruption Department and upon verification only the FIR is being lodged. This is done only because the Anti Corruption Bureau received so many complaints and in the interest of person concerned it is necessary to first ascertain and verify the fact whether the contents of the complaint is correct or not.
47. In support of his submissions he placed reliance on the judgments reported in AIR 1961 SC 221 (The State of Bihar v. Rani Sonabati Kumari), AIR 1961 SC 520 and 2000 (3) SCC 761.
48. Mr. Rafiq, AAG submits that it is an internal process to hold enquiry and verification just to avoid unnecessary harassment to the person concerned. The FIR can only be lodged after ascertaining the contents of the complaint made by the complaint against the particular person.
49. Mr. Rafiq further submits that since the trial is under progress and at this stage the petitioner is precluding to file writ petition for quashing of FIR whereas the jurisdiction is available to the petitioner under Section 482.
50. In support of his submissions he placed reliance on the judgment rendered by the Hon'ble Supreme Court in cases of 1999 (8) SCC 728, AIR 1992 SC 604 (supra), 1999 (2) SCC 259, 2003 (11) SCC 251, 2002 (3) SCC 89, 2000 (8) SCC 115, 2004 (1) SCC 691 and 2001 Criminal Law General 4195.
51. So far as the telephone tapping is concerned, learned Addl. Advocate General submits that permission was sought from the Home Secretary and they have not violated any of the provisions of the Indian Telegraph Act, 1885.
52. In support of his submissions he placed reliance on the judgment reported in 1998 Criminal Law Journal 1208 and 1997 (1) SCC 301 (People's Union for Civil Liberties (PUCL) v. Union of India and Anr.) (supra).
53. He has given much emphasis on the case of PUCL v. UOI (supra). He submits that all the necessary safeguards as envisaged by the Hon'ble Supreme Court in the aforesaid case have been incorporated in Rule 419-A of the Indian Telegraph Rules, 1951.
54. He also referred Rule 419-A of the Indian Telegraph Rules, 1951, which are reproduced hereunder:
'Directions for interception of any message or class of messages under Sub-section (2) of Section 5 of the Indian Telegraph Act, 1885 (hereinafter referred to as the said Act) shall not be issued except by an order made by the Secretary to the Government of Indian in the Ministry of Home Affairs in the case of Government of India and by the Secretary to the State Government in charge of the Home Department in the case of a State Government. In emergent cases such order may be made by an officer, not below thereon of a Joint Secretary to the Government of India, who has been duly authorised the Union Home Secretary or the State Home Secretary, as the case may be. Such order shall contain reasons for such direction. A copy of such order shall be forwarded to the concerned Review Committee within a period of seven days.'
55. Mr. Rafiq further submits that the permission as envisaged by the judgment of Hon'ble Supreme Court in the case of PUCL (supra), was taken prior to telephone interception. It was also given out by the learned Addl. Advocate General that telephone tapping did not exceed sixty days and, therefore, there was no requirement of its being placed before the review committee.
56. To this effect he placed reliance on the judgment in 2003 (6) SCC 641. Learned Addl. Advocate General has controverted the arguments advanced on behalf of the learned counsel for the petitioner that the petitioner being a Member of All India Services, Rajasthan State is not empowered to initiate any disciplinary action and lodge FIR without prior permission from the Central Government and in view of Section 6 of Delhi Special Police Establishment Act it is mandatory to seek approval of Central Government to conduct enquiry or investigation regarding the employees of the Central Government at the level of Joint Secretary or above and such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
57. Since the petitioner is holding the equivalent post of Joint Secretary and being an employee of the Central Government, the approval from Central Government to conduct enquiry or investigation is necessary.
58. So far as Section 3 of Judge (Protection) Act, 1985 is concerned, Mr. Rafiq submits that Sub-section (2) of Section 3 gives right that nothing in Sub-section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge.
59. Besides the provisions of Sub-section (2) of Section 3 he also referred the provisions of Section 197 of Cr.P.C., which are reproduced as under:
'Prosecution of Judges and public servants: When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed, or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government.
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, or the State Government.
Provided that where the alleged offence was committed by a person referred to in Clause (b) during the period while a Proclamation issued under Clause (1) of Articles 356 of the Constitution was in force in a State, Clause (b) will apply as if for the expression 'State Government' occurring therein, the expression 'Central Government' were substituted.'
60. The petitioner being a public servant and as per Section 197 CrPC the respondents, even without seeking prior permission, are competent to initiate enquiry. In support of his submissions he placed reliance on the judgments in 2002 (6) SCC 543, 1996 (2) SCC 37, 1999 (8) SCC 728 (supra), 2002 (6) SCC 81 and 2001 (1) SCC 369.
61. After referring aforesaid judgments and submissions learned counsel for the respondents submits that it is not such case where any interference is required while exercising power under Article 227 of the Constitution. It is also submitted that as per the principle laid down by the Hon'ble Supreme Court in the case of Bhajan Lal (supra), this is also not such case to prove the case of the petitioner that the FIR itself is false on its face value. Therefore, this present petition deserves to be dismissed.
62. Heard rival submissions of the respective parties and carefully perused the material available on the record as well as the relevant provisions of the various act and the judgments of the Hon'ble Supreme Court referred by the respective parties.
63. First of all I like to deal with the submissions advanced on behalf of the petitioner that whether there is legal bar to the institution and continuance of legal proceedings in the form of FIR and investigation or not. Since the petitioner has challenged the FIR on the ground that before lodging the FIR the respondents have hold the enquiry/verification with regard to the source information and after arriving at conclusion and relying on the basis for which the complaint has been made. All the observations and findings are incorporated in the FIR and thus such FIR whether termed as challan or FIR.
64. For that purpose first I like to deal with the aspect whether the enquiry/verification made prior to lodging of FIR is permissible under law or not. Upon receipt of source report dated 23.5.2004 the Anti Corruption Bureau first ascertained the fact and enquired into with regard to the contents of the source report dated 23.5.2004 and upon verification of the contents of the complaint the FIR was lodged.
65. Learned counsel for the petitioner submits that after enquiry and verification if any charge sheet containing the gist of the enquiry lodged the FIR, this tantamount of charge sheet under Sub-section (2) of Section 173 of Cr.P.C.
66. Section 173 of Cr.P.C. speaks about the report of police officer on completion of investigation. As per Sub-section (2) of Section 173, the moment the investigation is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government.
67. By bare perusal of Section 173 of Cr.P.C. it reveals that it is a report/challan, which is filed by the police officer after completion of investigation. Herein the instant case as submitted by learned AAG that to take abandoned caution to verify the genuineness of the complaint filed against the person they first inquired into the matter and after ascertaining the fact and allegations alleged in the complaint, only thereafter, Anti Corruption Bureau lodged the FIR.
68. This is not on the basis of internal arrangement but also on the basis of the ratio decided by the Hon'ble Supreme Court. The enquiry and the verification is permitted prior to lodging of FIR.
69. Upon perusal of the observation made by Hon'ble Supreme Court in the case of P. Sirajuddin v. State of Madras reported in AIR 1971 SC 520 it appears that if the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner.
70. Further the Hon'ble Supreme Court in the case of K. Karunakaran v. State of Kerala and Anr. reported in 2000 (3) SCC 761 has held that mere apprehension of use of a govt. order against some persons cannot be a ground to hold it illegal or unconstitutional particularly when its legality or constitutionality is not challenged. While dealing the case under Section 482 the Hon'ble Supreme Court has held that initially case not registered against appellant but subsequently having regard to fresh materials coming to light pursuant to a preliminary inquiry, case registered under Section 13 of Prevention of Corruption Act and under Section 120B IPC against persons including appellant.
71. Having considered the ratio decided by the Hon'ble Supreme Court it does not vitiate the proceedings. After thoughtful consideration upon the aforesaid judgment of Hon'ble Supreme Court it reveals that in case to ascertain the fact that if any material is available against the person or not and if any preliminary enquiry is made, it is not said to be in contravention of any of the provision of CrPC.
72. I am fully convinced with the submissions made by learned Addl. Advocate General on behalf of the State that just to avoid the harassment and humiliation and so many complaints and source information are furnished, in the interest of justice to ascertain the genuineness of such complaints, the preliminary enquiry has been conducted in the instant case.
73. As per Section 154 of Cr.P.C. every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
74. The Anti Corruption Bureau is created under the 'special act specially to deal with the anti corruption case. Only on receipt of any complaint may be frivolous such information cannot be treated as FIR and FIR is to be lodged by the Anti Corruption Bureau itself, therefore, verification of the complaint does not preclude them to lodge FIR against the petitioner.
75. The judgments, which are referred in support of this argument by the petitioner is only with regard to the FIR barred by Section 162 CrPC. The ratio decided by the judgment referred by learned counsel for the petitioner are not applicable to the instant case.
76. Now so far as the additional protection of Judges is concerned, learned counsel for both the parties referred Section 3 of Judges Protection Act 1985. It is no doubt that Sub-clause (2) of Section 3 empowers the State Government to take action against any person, who is or was a Judge.
77. Applying to the facts and the circumstances of the case, the petitioner is working as Member of Board of Revenue and admittedly he is discharging judicial functions. Upon perusal of the source report and contents of the FIR it reveals that he has accepted the gratification prior to decide the case in their favour. In view of the judicial propritory if anybody, who is acting as a Judge out of the court i.e., Board of Revenue sitting in Jaipur accepting the bribe and which is corroborated by the evidences, in such circumstances an enquiry can be initiated against a Judge also as per Section 3 Sub-clause (2) of Judge Protection Act. No illegality whatsoever has been committed by the respondents regarding lodging of FIR and filing challan.
78. It is also not out of place to mention Section 2 of the Prevention of Corruption Act, 1988 wherein 'public servant' has been defined. Section 2(c) is reproduced as hereunder:
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
(v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);
(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;
(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.
79. Sub-section (1) of Section 197 of Cr.P.C. speaks that when any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
80. Admittedly the petitioner is also a public servant in view of the definition of Section 2(c) of the Prevention of Corruption Act.
81. The Supreme Court, in the case of Raj Kishor Roy v. Kamleshwar Pandey and Anr. reported in 2002 (6) SCC 543 wherein the matter was pending for quashing of complaint on the ground that sanction under Section 197 Cr.P.C. not obtained, has observed that question of sanction can be raised at any time after the cognizance of offence is taken, may be even at the time of conclusion of trial.
82. It is further held that it is mandatory where the act has been done by the public servant in the course of his service or in the discharge of his duty-Protection under Section 197 not available, if the act complained of is not in connection with the discharge of official duty.
83. Applying the ratio decided by Hon'ble Supreme Court as in the instant case the petitioner while in Jaipur away from his office has accepted the bribe and even otherwise without discussing on the merit of the case as trial is already commenced, the petitioner in view of this judgment can raise the question before the trial. It is for the petitioner to raise these questions before the Trial Court whether the sanction is necessary or not.
84. At this stage while considering the writ petition whether the FIR lodged against the petitioner on the face value itself is false or not is only a question to determine by this Court. Even in the lack of obtaining sanction the FIR has been lodged, cannot said to be false at face value and on this ground the FIR cannot be quashed and set aside as per the principle laid down by the Hon'ble Supreme Court.
85. Similarly the submissions made on behalf of the petitioner is not tenable on the ground that FIR does not disclose any cognizable offence. This is not such case where such aspects are to be examined.
86. The FIR can only be quashed and set aside in case the allegations in the first information report or the complaint even if they are taken at their face value and accepted in their infringe do not prima facie constitute any offence. Present case does not fail in this category also.
87. The ground that the FIR does not disclose cognizable offence under the Court is also not tenable as by bare reading of FIR it discloses the cognizable offence against the petitioner as admittedly the evidence collected in support of the FIR also discloses the commission of offence.
88. In view of the seven tests laid down by the Hon'ble Supreme Court in the case of Bhajan Lal this case is not such case where any interference whatsoever is required by this Court for quashing of FIR. On this count also the petitioner does not succeed as the petitioner is unable to make out the case in view of the test laid down by the Hon'ble Supreme Court in the case of Bhajan Lal.
89. Now so far as the tapping of telephone is concerned, I also perused Sub-section (2) of Section 5 of the Indian Telegraph Act, 1885. They have placed a document, which shows that they have obtained sanction from the Home Secretary and tapping is completed within a period of two months as stipulated under the Act.
90. In the case of PUCL the Hon'ble Supreme Court has laid down certain criteria, which is reproduced herein above.
91. In view of the criteria laid down by the Hon'ble Supreme Court the respondents have admittedly tapped the telephone of the petitioner and within a period of two months they have completed the tapping. Review of order is only required after expiry of two months and after expiry of two months it is for the respondents to place before the Reviewing Committee. As the period of two months is not lapsed and tapping of telephone is completed, the review is not at all required.
92. In view of the ratio decided by Hon'ble Supreme Court in the case of PUCL, the arguments advanced on behalf of the petitioner is not justified that the respondents have violated the provisions of Indian Telegraph Act. On this count also the FIR cannot be quashed and set aside.
93. With regard to the point raised by the petitioner that the petitioner being an IAS officer and appointed by the Central Government, sanction of the Central Government is necessary, I carefully perused the Central Vigilance Commission Act and Delhi Special Police Establishment Act as well as perused the relevant provisions as referred herein above and the submission made on behalf of the parties.
94. As Section 6 of the Delhi Special Police Establishment Act shall not conduct any enquiry or investigation into an offence alleged to have been committed under the Prevention of Corruption Act, 1988 except with the previous approval of the Central Government where such allegation relates to the employees of the Central Government of the level of Joint Secretary and above.
95. I considered the submissions and also perused Section 2 of the All India Services Act, 1951 and Rule 2 of the All India Services (Discipline and Appeal) Rules, 1969.
96. Section 2 expressed that 'an All India Service' means the service known as the Indian Administrative Service.
97. In view of Sub-rule 2 'Government' means-
(i) in the case of a member of the service serving in connection with the affairs of a State, or who is deputed for service in any company, association or body of individual whether incorporated or not, which is wholly or substantially owned or controlled by the Government of a State, or in a local authority set up by an Act of the Legislature of a State, the Government of that State;
(ii) in any other case, the Central Government.
98. Rule 2(b) speaks that 'Disciplinary authority' means the authority competent under these rules to impose on a member of the service any of the penalties specified in Rule 6. Rule 2(e) defines 'State Government concerned'. Rule 6 deals with the 'penalties'.
99. All India service member can be put under suspension as per Rule 3 by the government of State where such member is serving. The State Government is empowered to suspend and initiate an enquiry as per the provisions of law and file complaint and lodge FIR also against such person.
100. It is also drawn my attention towards S.B. Criminal Misc. Petition No. 93/2001 filed by the petitioner wherein this Court vide judgment dated 04.12.2001 allowed the misc. petition. The action of the respondent CBI in recording the FIR and to investigate the matter in contravention to the provisions of Section 5 or Section 6 cannot be sustained and was quashed. In this case the petitioner's main grievance is that the Anti Corruption Bureau is competent to lodge the FIR and proceed with the investigation and the CBI is not competent. Now the petitioner has taken a summer salt and taken a different plea in the instant case.
101. I am fully satisfied with the submissions made on behalf of the State as they are able to make out that State is empowered to register the FIR and initiate action pursuant to the FIR.
102. All these questions, which are raised herein the writ petition challenging the FIR, the petitioner is not able to make out any case for the purpose of quashing and setting aside the FIR in question.
103. Since the petitioner is not able to make out any case and in consistent view of the Hon'ble Supreme Court it is not such case where any interference is required by this Court. More over the present case does not fall in any of the category and test laid down by the Hon'ble Supreme Court in the case of Bhajan Lal.
104. Consequently, both the writ petitions fail and are herewith dismissed with no order as to costs.