ORDER
1. All these applications had been filed under Section 482 of the Code of Criminal Procedure quash the proceedings in C.C. No. 13 of 1988 (Popularly known as 'Robin Mayne Case') on the file of the learned Principal Sessions Judge, Madras, who is empowered under the Criminal Law Amendment Act as a 'Special Judge' to try cases investigated by the C.B.I.
2. The facts giving rise to the filing of all these applications may succinctly be stated :-
(a) Accused 1, Robin Mayne, is a close friend of accused 31, ex-Minister of Tamil Nadu for Agriculture wielding considerable influence not only with him but other Government officials of different departments. The Tamil Nadu Agricultural Marketing Board, having huge deposit resources, had been investing in the ratio of 1 : 1 with the Co-operative banks and nationalised only whey they wanted to deposit with the scheduled bank Government's permission had to be obtained. This sort of a procedure was prevailing till unto November, 1983. Thereafter, accused 31 caused issuance of orders that in future no deposits should be made even with the Co-operative banks or with the nationalised banks without the prior permission of the Government. It was followed up by issuance of G.O. Ms. No. 1914 Agriculture (A.M.I.) Dept. Dt. 7-11-1983. Even prior to the issuance of the aforesaid G.O., accused 31 and his ex-Personal Assistant-accused 32 had issued direction to make deposits with the specified branches of the nationalised banks. Accused 31 also caused about six. G.Os. to be issued between 19-6-1984 and 7-9-1984 to be issued for depositing the surplus funds with certain specified branches of selected nationalised banks against resolution and recommendations of the concerned District Marketing Committee and the Tamil Nadu Agricultural Marketing Board. It was from these nationalised banks, accused 1 and his associates, accused 2 to 9 obtained vehicle loans promising funds from the Government of Tamil Nadu. The loans on stained from these nationalised banks were to the extent of about Rs. 56, Lakhs, on the hypothecation of 39 transport vehicles. All those vehicles were second-hand ones with re-registration numbers effected in Tamil Nadu.
(b) All these vehicles were produced before the concerned Regional Transport Office along with relevant documents, such as R.C. book, No Objection Certificate, 'E' form, For, in R.M.A. etc. The office, after scrutiny of such materials, placed them before the regional Transport Officer concerned for registration, who in turn required the vehicles to be inspected by the Motor Vehicles Inspector on duty.
(c) Accused 19 to 30 were working as Motor Vehicles Inspectors at the relevant time and 39 vehicles had been inspected by accused 19 to 30, as per the allocation made by the Regional Transport Officer. A certificate had been appended in 'E' form by the respective Motor Vehicles Inspector as to the correctness of the particular of the vehicles checked by him. Thereafter, all these vehicles were caused to be re-registered by the Regional Transport Officer and re-registration certificates issued.
(d) Utilising these re-registration certificates, accused 1 to 9 obtained certificates of valuation from accused 11 to 13 for all these vehicles and obtained loans from the various nationalised banks hypothecating the vehicles by entering into have purchase agreements. Subsequent to the grant of loans, no installment had been paid evoking suspicion of the bankers.
(e) In the discussion in the Bankers Club meeting, the wholesale fraud and cheating committed by accused 1 to 9 came to light and all the bankers were alerted by sending special communications lest future frauds of this nature be averted. The nationalised banks with whom loans had been taken on the hypothecation of the transport vehicles by accused 1 to 9 lodged complaint before the Deputy Superintendent of Police, C.B.I., Madras 13-3-1985 and 9-4-1985 and the same had been registered in R.C. Nos. 7 to 10 and 12 to 17 to 1985.
(f) Thereafter, C.B.I. made a thorough investigation and collected voluminous in-criminating materials, in the shape of examination of witnesses and seizure of documents. They also searched the residence of accused 1 and seized his personal diary making startling revelations of huge payments, having been made not only to accused 31, but also to the members of the family of accused 31. The materials collected further revealed the hands of accused 10 and 14 to 18, private individuals engaged in the illegal trade for arranging fake registration certificates and No Objection Certificates for the motor-vehicles, giving a helping hand to accused 1 to 9 in procuring fake registration and No Objection Certificates for the non-existing 39 motor vehicles.
(g) The investigation further revealed that accused 1 to 32 and one Balasundaram (who subsequently turned as 'an approver'), a resident of Mettur Dam were parties to a criminal conspiracy between March, 1983 and June, 1984 at Madras, Gwaliar and other places to commit the offence of cheating by personification, forgery of valuable securities, using of forged documents as genuine, falsification of accounts and criminal misconduct by accused 1 amongst them to approach the Manager and other officials of various nationalised banks in Madras city and other places with the assurance of securing for them a short-term deposit of substantial amounts from the funds of the Agricultural Department of the State Government through his influence with accused 31, then Minister for Agriculture, Government of Tamil Nadu, in lieu of liberal sanctioning the vehicle loans in favour of himself and his associates; by accused 2 to 9 amongst them to apply for vehicles loans along with accused 1 either in their names or in ficitious names from time to time to various banks producing forged R.C. books secured by accused 1 for them without actually possessing any vehicle and induced the bank officials to sanction such loans and to encash the loan cheques and appropriate the amounts by A 10 and accused 10 to 18 amongst them to supply the forged R.C. Books and No Objections Certificates, by accused 11 to 13 amongst them a to issue valuation certificates in respect of non-existing vehicles; by accused 19 to 30 amongst them to submit inspection reports in the form of making an endorsement in 'E' from vouchsafing the correctness of the particulars verified by them and thereby causing issuance of fresh R.C. books to the re-registered vehicles.
(h) The confession statement of the approver revealed among other things, his participation in the conspiracy, in the preparation of forged R.C. books, besides payment of Rs. 4,500/- to the transport authorities through the medium of touts for re-registration of the vehicles by the issuance of a new R.C. book in lieu of old bogus R.C. books and No Objection Certificates.
(i) Thereafter, all possible efforts were made by the C.B.I. to obtain the relevant records and files from the State Government of Tamil Nadu in connection with the alleged involvement of accused 31 and 32. But those records and file were not forthcoming. Consequently, they could not complete the investigation in respect of those two accused 31 and 32. An interim report under S. 173(2), Cr.P.C. had been laid before the learned X Metropolitan Magistrate, Egmore, Madras On 2-9-1987 of alleged offences under Sections 120B read with 420, 477A, 419, 467 and 471, I.P.C. against accused 1 to 30; under Sections 419, 420, 467 and 471, I.P.C. against accused 1 to 6; under S. 420, I.P.C. against accused 7 and 9 and under S. 477A, I.P.C. against accused 19 to 30, making a reservation for the filing of a supplementary report to be laid, if necessary, under the appropriate sections of law in respect of the offences to be disclosed during further investigation before a Court of competent jurisdiction as the investigation into the alleged role of accused 31 and 32 was not over by then.
(j) Learned Magistrate took the case on his file in C.C. No. 10800 of 1987 and issued process on 10-9-1987 to accused 1 to 30 directing them to appear before him on 9-10-1987.
(k) During the subsistence of the them Ministry, C.B.I. could not got relevant records files, despite best of efforts relating to the involvement to accused 31 and 32 and they were able to procure the records subsequent to the fall of the Ministry during the President's Rule, listed as items 151 to 161 in the final report laid under S. 173(2), Cr.P.C. They also examined witnesses Nos. 221, 222, and 227 to 229 cited therein. Since accused 19 to 31 were public servants, the requisite sanction for their prosecution for various offences had been obtained in G.O. Ms. No. 1216, Home (Transport-II) Department, dt. 30-5-1988. After completing the investigation relatable to accused 31 and 32 they laid the final report before the same Magistrate on 13-6-1988 against accused 1 to 32 as follows :-
Accused 1 to 32 : under Sections 120B read with 429, 419, 467, 471, 477A, 161 and 165(A), I.P.C. and Section 5(2) read with 5(1)(a) and (d) of the Prevention of Corruption Act, 1947. Accused 1 to 6 : under Section 165(a), Section 109, I.P.C. read with 5(2) read with Section 5(1)(a) and (d) of the Prevention of Corruption Act, 1947 and Sections 109 read with 420, 419 and 109 read with 477, I.P.C. Accused 7, 8 and 9 : under Sections 420, 467 and 471, I.P.C. Accused 19 to 30 : under Section 161, I.P.C., Section 5(2) read with 5(1)(a) and (d) of the Prevention of Corruption Act, 1947 and Section 420 read with Section 109 and 477A, I.P.C. Accused 31 to 32 : Under Section 161, I.P.C. Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 and Sections 419 and 420 read with 109, I.P.C. (l) Since there was a typographical error in the original sanction order in G.O. Ms. No. 1216, Home (Transport-I Department, dated 30-5-1988, Govt. letter No. 71421/Tr.II/88.4, Home Department, dated 23-6-1988 was issued rectifying the said error, namely, correcting '(b)' of sub-section (1) of S. 5 of the Prevention of Corruption Act, 1947 (Central Act II of 1947) into '(d)'.
(m) Since the final report dated 13-6-1988 disclosed offences exclusively tribal by a Special Judge, learned Magistrate submitted the same to the Principal Sessions Judge, Madras on 12-7-1988.
(n) On 13-7-1988, learned Public Prosecutor representing C.B.I. filed Cr.M.P. No. 3519 of a 1988 before learned Principal Sessions Judge, City Civil Court, Madras praying for withdrawal and transfer of C.C. No. 10800 of 1987 on the file of X Metropolitan Magistrate, Madras to his file and that application had been allowed. Learned Principal Sessions Judge withdrew and transferred the said case to his file. He has clubbed that case with the case taken by him on his file on the final report in C.C. No. 13 of 1988 and posted the said case on 4-8-1988 for furnishing copies of documents to the accused.
(c) After copies of documents were furnished, accused 19, 20, 27, 28, and 29 filed Cr.M.P. No. 7484 of 1988; accused 21 Cr.M.P. No. 6918 of 1988; accused 23 and 30 Cr.M.P. No. 6522 of 1988; accused 24 Cr.M.P. No. 6994 of 1988; accused 25 Cr.M.P. No. 1990 of 1989; accused 26 Cr.M.P. No. 11601 of 1988 and accused 32 Cr.M.P. No. 10046 of 1988 for quashing the proceedings initiated against them in the Court below.
3. The arguments advanced on behalf of the petitioners in pith and substance revolving on the following points - factual or legal -
(1) The Special Police Establishment (CBI) has no power to investigate offences involving State Government Servants, in the absence of the consent of the State given under sub-section (1) of S. 5 read with S. 6 of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as 'the Act, 1946') and there being no sanction having been given by the Government of Tamil Nadu under the aforesaid Sections, the prosecution initiated against the petitioners-Government Servants is illegal as being without powers and jurisdiction of the Special Police Establishment (CBI) :
(2) There is no valid sanction for the prosecution of the petitioners either under S. 197, Cr.P.C. or under S. 6 of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act, 1947') and hence the proceedings initiated shall become null and void;
(3) A preliminary report under S. 173(2), Cr.P.C. having been filed before learned Metropolitan Magistrate, Egmore, Madras and the petitioners-accused having appeared before that Court pursuant to the process issued, it shall be deemed that the cognisance of the case had been taken by that Court alone and the cognizance so taken is ab-initio void as off that date, there was no sanction either under S. 197, Cr.P.C. or under S. 6 of the Act, 1947;
(4) The cognizance once alone can be taken and that too by the Magistrate empowered under S. 190, Cr.P.C. and further cognizance of the case cannot at all be taken by the Special Judge as he has no powers of original jurisdiction as regards taking cognizance of the case;
(5) The procedure adopted by learned Magistrate in submitting the final report disclosing the offences exclusively triable by the Special Judge appointed under the Criminal Law Amendment Act, 1952 (hereinafter referred to as 'the Act, 1952') is illegal and he ought to have committed the case under S. 306(5)(a), Cr.P.C. after examining the approver in the case which is mandatory under S. 306 (4)(1)(a), Cr.P.C.
(6) The entire materials on record, if scanned, with proper caution and circumspection, it would emerge that is a case of civil nature requiring initiation of proceedings in a competent Civil forum and therefore it is eminently a fit case for invoking the extraordinary jurisdiction of this Court under S. 482, Cr.P.C. to quash the criminal proceedings initiated against the petitioners.
(7) There is no prohibition in law to initiate civil as well as criminal proceedings simultaneously on the same set of facts provided those facts also constitute penal offences. But the materials collected by the investigating machinery in the instant case do not prima facie disclose any offence whatever having been committed by them either under the Indian Penal Code or under the provisions of the Act, 1947 and in such circumstances, it is nothing but sheer abuse of process of law in causing unnecessary harassment to the petitioners in facing criminal trial, calling for interference under S. 482, Cr.P.C.
(8) There being no provisions in the Code of Criminal Procedure permitting prosecuting agency to file interim and final reports, the procedure adopted by the Special Police Establishment (CBI) in this case in filing interim and final reports is illegal when especially no permission had been obtained by the prosecuting agency from the Court for resorting to such a procedure, besides there being no further investigation in examining the witnesses and collection of documents.
4. Let me now dive and delve deep to consider the various implications of the legal points as stated above, one by one in seriatim.
5. The first point is relatable to the power and jurisdiction of the Special Police Establishment (CBI). Before construing the amplitude of the power, prudent, it is to mention here that the Central Government is competent to issue a notification under S. 3 of the Act, 1946 for the investigation of any offence or process of any offence after obtaining the consent of the relevant State Government under S. 6 read with S. 5 of the Act, 1946. If there is no such notification, it goes without saying that the investigation embarked upon by the Special Police Establishment (CBI) in report of any offence or of offence is without powers and jurisdiction. So, it is a question of signal importance as to whether the Government of Tamil Nadu had given its consent for such investigation and notification therefore had been issued. If proof is forthcoming for such a consent having been given and a notification issued, the legal construction of the argument hinging on this point will fall to the ground.
6. Learned Standing Counsel for the respondent drew my attention to the Letter No. Sc/3056-I/81 dated 20th November, 1981 issued by the Commissioner and Secretary to Government, Home (S.C) Department, of Government of Tamil Nadu, which reads as follows :
'Sir,
Sub : Police - Criminal Cases - Investigation by Central Bureau of Investigation - Consent of Government of Tamil Nadu under S. 6 of the Delhi Special Police Establishment Act.
Ref. : 1 No. 6/45/56-AVD of Ministry of Home Affairs, Government of India, dated 6th November, 1956 with Notification No. 7/5/55-AVD, dated 6th November, 1956;
2. D.O. Lr. No. 321/5/72-AVD (III) dated 5th June, 1972 from Thiru Ram Niwas Mirdha, Minister, Department of Personnel, Cabinet Secretariat, Govt. of India, addressed to Chief Minister to Tamil Nadu;
3. Lr. Ref. No. 59937/Pol IV/76-2, dated 18th May, 1976. In the letter 3rd cited, the Government of Tamil Nadu have agreed to the members of the Delhi Special Police Establishment Exercising power and jurisdiction within the State of Tamil Nadu, as originally intimated in this Government Letter M.S. No. 188, Home, dated 23rd January, 1957, and other subsequent letters issued from time to time on the subject.
'2. The Government have examined the question whether the consent given in May, 1976 would require modification. In the D.O. Letter, dated 5th June, 1972, 2nd cited, it has been state by the Government of India, that the special Police Establishment takes up suo motu only these cases which involve either Central Government Servants or officers belonging to Public Sector undertaking under the Central Government or which involve financial or other interest of the Central Government or Public Sector undertaking under the Central Government or offences under certain Central Acts with the enforcement of which the Central Government concerned. It has been stated by the Government of India that cases no falling under the above categories, that is, those mainly involving State Government employees or private persons can be taken up by the Special Police Establishment with the concurrence or at request of the State Government concerned.
3. In the light of the position stated in paragraph 2 above, I am directed to state that in supersession of the consent given in the letter No. 59937/Pol. IV/76-2, Home, dated 18th May, 1976 and other letters issued from time to time on the subject, the Government of Tamil Nadu hereby give their consent under S. 6 of the Delhi Special Police Establishment Act, 1946 only in respect of -
(i) Cases involving either Central Government servants or officers belonging to Public Sector Undertaking under the Central Government, and
(ii) Cases involving financial or other interest of the Central Government, or public sector undertaking under the Central Government in relation to offences mentioned in the list of offences enclosed with the D.O. Letter second cited.'
7. In D.O. No. SC/509-9/82, dated 24th May, 1983, the Commissioner and Secretary to Government, Government of Tamil Nadu, stated,
'.... The provision contained in S. 6 read with S. 5 of the Delhi Special Police Establishment Act, 1946 make it clear that the consent given under S. 6 is for the investigation of any offence or classes of offences specified in a notification issued under S. 3 and it is not relatable to any accused person. In the above circumstances, the CBI may investigate the offences in question ....'
8. He also drew my attention to the Notification No. 228/2/74, - AVD II dated 26th October, 1977 of the going by the caption, 'A Treatise on 'Anti-Corruption Laws in India' by P. V. Ramakrishna, Second Edition and the relevant portion of the notification, which is necessary for our purpose is couched in the following terms :
'S.O. ...... In exercise of the powers conferred by sub-section (1) of S. 5, read with S. 6, of the Delhi Special Police Establishment Act, 1946 (25 of 1946), the Central Government, with the consent of the Governments of the State concerned, hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment to the States of ..... Tamil Nadu ... for the investigation of the offences specified in the Schedule below, namely :-
THE SCHEDULE
(a) Offences punishable under the Foreign Exchange Regulation Act, 1973 (46 of 1973); and
(b) attempts, abatements and conspiracies in relation to or in connection with any offence mentioned in Clause (a) and any other offence committed in the course of the same transaction arising out of the same facts.'
9. My attention was further drawn to the Notification No. 220/8/79-AVD II dated 11-8-1980 of the Central Government published at pages 774-775 of the same book. The relevant portion of the Notification required for our purpose is in the following terms :-
'S.O. .... In exercise of the powers conferred by S. 3 of the Delhi Special Police Establishment Act, 1946 (25 of 1496) the Central Government hereby directs that the following amendment shall be made in the notification of the Government of India in the Ministry of Home Affairs No. G.S.R. 305 dated the 18th February, 1963 namely,
SUMMARY OF THE NOTIFICATION
The D.S.P.E. is competent to investigate the following offences in all the States excepting some States which have been shown in brackets at Serial Nos. 1, 2, 4 and 23.
I.M.H.A. Notification No. 25/12/62 AVD I dated 18-2-1963 read with M.H.A. Notification No. 25/9/64-AVD dated 1-9-1964 Notification No. 228/2/65-AVD II, dated 19-5-1966.
I. Offences punishable under Sections 161, 162, 163, 164, 165A, 166, 167, 168, 169, 182, 193, 197, 198, 201, 204, 211, 218, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 248, 249, 250, 251, 252, 253, 254, 256, 257, 258, 259, 260, 261, 262, 263, 263A, 379, 380, 381, 382, 384, 385, 386, 387, 388, 389, 403, 406, 407, 408, 409, 411, 412, 413, 414, 417, 418, 419, 420, 465, 466, 467, 468, 471, 472, 473, 474, 475, 476, 477A, 489-B, 489-C, 489-D and 489-E of the Indian Penal Code, 1860 (XLV of 1860).
(These offences are not applicable to the State of Jammu and Kashmir).
2. Offences punishable under the Prevention of Corruption Act, 1947 (II of 1947).
(These offences are not applicable to the State of Jammu and Kashmir) ....'
From the aforesaid Notifications, it is fluidly clear that the Special Police Establishment (CBI) has got the statutory power and jurisdiction to investigate the case against the petitioners-accused for various offences alleged. As such, I do not find any force in this point.
10. Arena of discussion of the second point regarding the sanction revolves on the sanguine provisions adumbrated in S. 197 of the Code of Criminal Procedure besides S. 6 of the Act, 1947. For understanding the implication of those provisions, it is better we reproduce here the relevant provisions of these Sections required for our purpose. S. 197(1), Cr.P.C. reads as follows :
'197. Prosecution of Judges and Public Servants :
(1) When any person who is or was a Judge or Magistrate or 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) ......
(b) in the case of 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, of the State Government.'
Section 6(1)(b) and (c) of the Act, 1947 reads as follows :-
'6. Previous Sanction Necessary for Prosecution :-
(1) No Court shall take cognizance of an offence punishable under S. 161 (or S. 164) or S. 165 of the Indian Penal Code, or under sub-section (2) (or sub-section (3A) of S. 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction :-
(a) .....
(b) In the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government :
(c) In the case of any other person, of the authority competent to remove him from his office.'
11-12. From a perusal of the aforesaid provisions, it goes without saying that the sanction of the state Government for the prosecution of the Public Servants is necessary. On the face of such a provisions, it falls for consideration as to whether the sanction contemplated thereunder is to be obtained before taking cognizance of the case by the competent forum or whether it can be obtained at any stage of the proceedings and what are the implications and consequences to flow therefrom, in the sense of the entirely of proceedings having become null and void, leading to the acquittal of the petitioners - accused once and for all or whether it is permissible for their being prosecuted again for the vary same offences.
13. Catena of decisions had been referred to by both the sides as regards the obtaining of the sanction. It is better to refer to such of the sanction. It is better to refer to such of those decisions alone, as the correct legal position has been settled by the apex of the judicial administration of this country in the decision reported in : 1987CriLJ703 (Ram Kumar v. State of Haryana), wherein Their Lordships of the Supreme Court have observed at page 478 (of SCC) : (at p. 705 of Cri LJ) as follows :-
'Under the circumstances, the Court could not have taken cognizance of the offence insofar as the appellant was concerned for there was no jurisdiction to do so in the absence of the requisite sanction. The appeal must, therefore, be allowed, the order passed by the High Court must be set aside, and the proceedings against the appellant must be quashed as lacking in jurisdiction. No doubt, this order will not operate as an acquittal on merits and the appellant can be proceeded against afresh.'
14. From the above observations of the Supreme Court it is crystal clear that if no requisite sanction is there, the proceedings are liable to be quashed. Even the quashing of the proceedings is not a bar for initiation of proceedings for the same offence, after obtaining the requisite sanction, as the quashing of the earlier proceedings in the eye of law would not tantamount to acquittal. By implication, it follows that it is not necessary that the order requiring sanction for prosecution should be obtained by the investigating machinery even before the case is taken cognizance of by the Court. It is sufficient that the sanction order is obtained even subsequent to the stage of taking cognizance of the case. In other words, the prosecuting machinery has to prove, for successful prosecution, the obtaining of the requisite sanction for prosecution.
15. Useful reference may also be made to the decision of the Privy Council reported in 1950 MWN (Cri) 1 : 1949 (50) CLJ 889 (Yusofalli Mulla Noorbhoy v. The King) to point out that the view taken as early as 1949 is the same view available till today, as having been given the seal of approval by the Supreme Court in the aforesaid decision. It is worthwhile to reproduce the observations of the Privy Council and the same is couched in the following terms :-
'A prosecution without a valid sanction is a nullity. As soon as the Magistrate decides that no valid sanction had been given, he becomes incompetent to proceed with the matter and must discharge the accused on the ground that he had no jurisdiction to try him. An order of acquittal in such circumstances is without jurisdiction and could only operate as an order of discharge.
A previous trial without the requisite sanction is no bar to a fresh trial with sanction for the same offence and on the same facts.
The whole basis of S. 403(I), Cr.P.C. is that the first trial should have been before a Court competent to hear and determine the case and to record verdict of conviction or acquittal.'
16. In the instant case, there is no denial of the fact that the sanction order had not been obtained before taking cognizance of the case by the Magistrate and the same had been obtained at a subsequent stage. The fact remains that there is sanction order obtained under the relevant provisions of the Acts.
17. Now, what emerges to be considered is the limb of argument focused on the validity of the sanction. Before considering the various facets of such an argument better it is to mention here of the factual aspects of according of sanction G.O. Ms. No. 1216 Home (Transport II) Department, dated 30th May, 1988 is relatable to the sanction. Since certain typographical error crept into the said G.O. according sanction, the same was sought to be remedied by the issuance of a letter No. 71421/Tr.II/84-4 Home Department, dated 23-6-1988. Amendment or rectification of whatever name it is called, had been effected by changing the alphabet '(b)' into one of '(d)' for referring to (d) of sub-section (1) of S. 5 of the Act, 1947. The aforesaid G.O. is purported to have been signed by 'K. A. Nambiar, Special Commissioner and Secretary to Government. The letter amending the G.O. is purported to have been signed by some personnel of the Government for and on behalf of the Special Commissioner and Secretary to Government. Now various facts of the arguments revolving on the validity of the sanction may be catalogued and considered one by one.
18. The original G.O. accords sanction for prosecution only under S. 197 Cr.P.C. and not under S. 6 of the Act, 1947, the consequence of which is that there is no sanction at all with regard to prosecution of the petitioners - accused for the alleged offences committed by them under the relevant provisions of the Act, 1947 and therefore it is that the proceedings initiated against them under the Act, 1947 deserve to be quashed as not being maintainable. This argument cannot at all be countenanced in the circumstance of the case. Though the preamble of the G.O. Ms. No. 1216 dated 30th May, 1988 according sanction mentions according of sanction only under S. 197(1)(b), Cr.P.C., yet the body of the G.O., if pursued, would point out the according of the sanction not only under S. 197(1)(b), Cr.P.C. but also under S. 6(1)(b) of the Act, 1947. The mere omission of mentioning of S. 6 of the Act, 1947 in the preamble to the G.O. is of no consequence. A bare perusal of the G.O. consisting of number of pages would point out the application of mind of the authorities concerned for consideration of the various materials constituting offences not only under the provisions of the Indian Penal Code but also under the provisions of the Act, 1947.
Only on consideration of such materials sanction has been accorded for prosecution of the petitioners - accused both under the Code of Criminal Procedure as well as under the Act, 1947.
19. The original G.O. according sanction could have been amended by the passing of another G.O. In the absence of such a procedure, the amendment of the original G.O. by the issuance of a letter signed for and on behalf of the Special Commissioner and Secretary to the Government affects the validity of the sanction issued under the original G.O. There is no substance in such an argument. Nothing has been found mentioned either in the Code of Criminal Procedure or in the Act, 1947 as regards the mode or forms or formality to express according of sanction by the relevant authority concerned. Such being the case, it is open to the concerned authority according sanction to express the order of sanction in whatever way feasible in the context of the situation. As such, the amendment of the original G.O. by the issuance of a letter can by no stretch of imagination be construed to go to the extent of affecting the validity of the original sanction accorded.
20. In order to highlight the law laid down by the Supreme Court on this aspect of the matter, useful reference may be made herein to the decision reported in : 1954CriLJ1002 (Biswabhusan Naik v. State of Orissa). Their Lordships of the Supreme Court while considering this question also referred to the decision of the Privy Council reported in and the passage of the Privy Council Judgment is couched in the following terms :-
'In their Lordships' view, in order to comply with the provisions of Clause (23), it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential since Clause (23) does not require the sanction to be in any particular form nor even to be in writing. But if the facts constituting the offence charged are not known on the face of the sanction, the prosecution must prove by extraneous evidence that those were placed before the sanctioning authority.'
21. After referring to the aforesaid passage, Their Lordships of the Supreme Court observed in paragraph 6 of the judgment as follows :-
'The judgment of the Judicial Committee relates to Clause (23) of the Cotton Cloth and Yarn (Control) Order, 1943, but the principles apply here. It is no more necessary for the sanction under the Prevention of Corruption Act to be in any particular form, or in writing or for it to set out the facts in respect of which it is given that it was under Clause (23) of the Order which their Lordships were considering. The desirability of such a course is obvious because when the facts are not set out in the sanction proof has to be given 'aliunde' that sanction was given in respect of the facts constituting the offence charged, but an omission to do so is not fatal so long as the facts can be, and are, proved in some other way.'
The observations of the Supreme Court as referred to above will be applicable on all fours to the case on hand. As such, the amendment of the original G.O. by the issuance of a letter will not at all tilt this case in favour of the petitioners - accused in making the sanction order invalid.
22. Yet another limb of the argument as to the validity of the sanction consists of non-application of mind. This argument is built upon the non-mentioning of S. 6 of the Act, 1947, in the preamble to the original G.O. as well as quoting wrong sub-section, namely Clause '(b)' to sub-sec (1) of S. 5 of the Act, 1947 instead of Clause '(d)' to sub-sec (1) of S. 5 thereof. The submission on this aspect is altogether untenable. I have already adverted to the non-mentioning of S. 6 of the Act, 1947 in the preamble to the original G.O. and found that the aforesaid section has been specifically referred to in the operative portion of G.O. Apart from the mention of the relevant provision of the Act, 1947, the body of the G.O. contains in meticulous details all materials gathered constituting offences under the relevant provisions of the Act, 1947. The materials discussed therein are relatable only to offence under S. 5(1)(d) of the Act, 1947 and not under S. 5(1)(b) thereof. To make the position more clear, not even an itoa of material is found mentioned in the order as regards the commission of the offence under S. 5(1)(b) of the Act, 1947. In such a circumstance it is too much to contend that there was non-application of mind while according sanction for the prosecution of the offenders, both under the relevant provisions of the Indian Penal Code as well as the Act, 1947.
23. Yet another fact of the argument falling for consideration as to the validity of the sanction order centers on the competency of the authority for according sanction. The authority competent to accord sanction under S. 197, Cr.P.C. is the 'Government' while under S. 6 of the Act, 1947, the competent authority varies depending upon the status of the person sought to be prosecuted, in the sense of the competent authorities being the Central Government, State Government and the authority competent to remove him from office. If the person sought to be prosecuted happens to be a servant of the State Government, the State Government is the competent authority to accord sanction and in the case of any other person, the authority competent to remove him from office. The petitioner - accused in the case on hand are admittedly the State Government Servants.
24. Barring accused 32 - petitioner in Cr.M.P. No. 10046 of 1988, the rest of the petitioners were Motor Vehicles Inspectors, who are admittedly removable from office by the Transport Commissioner - appointing authority. Worthy it is to mention here that accused 27 and 29 (petitioners 3 and 5 in Cr.M.P. No. 7484 of 1988 were functioning as Motor Vehicles Inspector or at the time the occurrence took place. Subsequently all the three were promoted respectively on 9-11-1987, 15-4-1988 and 3-10-1985 as Regional Transport Officers earlier to the according of sanction for prosecution, which was given on 30th May, 1988. So too the case of accused 28 (petitioner 4 in Cr.M.P. No. 7484 of 1988) and accused 21 (petitioner in Cr.M.P. No. 6918 of 1988), who were Motor Vehicles Inspectors at the time the occurrence took place but were promoted as Regional Transport Officer subsequently but before the passing of the G.O. according sanction on 30-5-1988 for their prosecution. Accused 32 (petitioner in Cr.M.P. No. 10046 of 1988 as Gazetted Personal Assistant to the then Minister for Agriculture and the authority competent to remove him from office is the Government.
25. The pivot of the argument in this connection hinges upon the sanction not having been accorded by the Government besides the competent authority under the Act, 1947. In amplification of this argument what is stated is that ex-facie original G.O. as well as the letter amending the original G.O. as well as the letter amending the original G.O. do not contain materials pointing out that the sanction had been accorded by the Government. It is also stressed herein that 'Government and 'Governor' are two different distinct authorities, thereby meaning 'Government' is not 'Governor' and 'Governor' is not 'Government'. For appreciating thins facet of argument, one has to bear in mind the appreciable distinction between the executive action of the Government of a State expressed to be taken in the name of the Governor and the action with respect to which the Governor is by or under the Constitution required to act in his discretion.
26. The executive actions of the Government as well as the act to be done by the Governor in his discretion are referred to in Art. 166 of the Constitution of India. It reads as follows :
'Conduct of Government Business :
166. (1) All executive action of the Government of State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed on the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
'(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.'
27. According of sanction is beyond the pale of controversy as an executive action of the Government, and therefore such act shall have to be expressed to be taken in the name of the Governor as per Clause (1) of Art. 166 of the Constitution. Pertinent it is to note here that at the time when the sanction order had been issued, admittedly the Government of Tamil Nadu was under the President's Rule, as per the Notification G.S.R. 66(E) - No. II(1)/PUSC/II(c)/88 - Lr. No. SS. 1/71-1/88 Public (S.C.) Department, dated 30th January, 1988 published in Tamil Nadu Government Gazette Extraordinary in Part II - Section 1 (No. 50) of the issue dated 30th January, 1988. A perusal of the aforesaid notification makes it abundantly clear that all functions of the Government of the State of Tamil Nadu and all powers vested in or exercisable by the Governor of that State had been assumed by the President of India and it shall be lawful for him to act to such extent as he thinks fit through the Governor of the said State. It is further revealed that the operation of so much of Clause (3) of Art. 166 as relates to the allocation among the Ministers of the business of the Government of the State has been suspended, retaining the operation in tact of the provisions of Cls. (1) and (2) of Art. 166 of the Constitution. Clause (2) of Art. 166 of the Constitution enables the Governor to frame rules for the authentication of the orders and other instruments made and executed in the name of the Governor. It further provides that the validity of an order or instrument, which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
28. Business Rules in fact had been framed besides issuance of Secretariat Instructions so as to transact the business of the Government. Rr. 11 and 12(1) of the Tamil Nadu Government Business Rules; and Instruction 84(2) of the Secretariat Instructions which are relevant for our purpose may be reproduced here. They are as follows :
'Business Rules :
11. All orders or instruments made or executed by or on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor.
12. (1) Every order of instrument of the Government of the State shall be signed either by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary or an Under Secretary to the Government of the State or such other officer as may be specifically empowered in that behalf in the manner specified below and such signature shall be deemed to be the proper authentication of such order or instrument.
'By Order and in the name of the Governor of Tamil Nadu. (Signature) Name and Designation of the Officer authorized to sign. '....' 'Secretariat Instructions : 84(2) : Where the body of the Government Order of Proceedings specifically refers to the Governor, the expression '(By Order of the Governor)' need not be added at the end of the copy of the order.'
29. No doubt true it is that the sanction order bears simply the signature of 'K. A. Nambiar' Special Commissioner and Secretary to Government and he has not subscribed his signature 'By Order and in the name of the Governor of Tamil Nadu'. The letter amending the original G.O. bears simply the signature of some personnel of the Government for and on behalf of the Special Commissioner and Secretary to Government. His signature also had not been subscribed 'By Order and in the name of the Governor of Tamil Nadu'. Learned Standing Counsel for the respondent would submit that the original of the letter amending the original of the G.O. had been signed by Mr. K. A. Nambiar, Special Commissioner & Secretary to Government and the copy of the letter forwarded to the Transport Commissioner, Madras-5 alone had been signed by some personnel for and on behalf of the Special Commissioner and Secretary to Government. The Submission on this aspect was not at all challenged by learned Counsel for petitioners. But the fact remains that even this letter amending the original G.O. had been issued by 'K. A. Nambiar', Special Commissioner and Secretary to Government. The necessary corollary of such a position is that both the original G.O. according sanction and the letter amending G.O. had been issued by one and the same authority. Once the position on this aspect of the matter is made clear, learned Standing Counsel would submit that Rules 11 and 12(1) of the Tamil Nadu Government Business Rules Instruction 84(2) of the Secretariat Instructions, as extracted above, would clinch the issue in favour of the prosecution, in view of the fact that the operative portion of the sanction order clearly mentions that the Government of Tamil Nadu had accorded sanction for prosecution of the petitioner though the G.O. as well as the letter amending the G.O. had not been signed by 'K. K. Nambiar, Special Commissioner & Secretary to Government' as 'By Order and in the name of the Governor of Tamil Nadu'.
30. Learned Standing Counsel for the respondent would also draw my attention to G.O.Ms/.No. 283, Public (Special-B) Department, dated 24th February, 1988 issued regarding the allocation of business of Government of Tamil Nadu during President's Rule. So much of the portion of the G.O. as is relevant for our purpose is in the following terms :-
'(ii)(b) Files in which Government have to pass orders under any law, shall be disposed of by the Advisers.'
From the aforesaid G.O., it is clear that the files in which the Government have to pass orders under any law, shall be disposed of by the Advisers. He would also submit that files regarding sanction had been circulated to the concerned Adviser before the G.O. according sanction had been issued. On this aspect of the matter no serious challenge emerged from the other side.
31. Learned Standing Counsel would even go to the extent that even assuming for argument's sake that there is a defect in the sanction order, in the sense of the same not having been duly expressed 'By Order and in the name of the Governor of Tamil Nadu', even then it is not going to affect the validity of the sanction and what flows from such a defect is that the sanction order so issued is not immune form challenge as regards its authenticity and in such an eventuality, it is incumbent on the part of the prosecution to adduce evidence aliunde during the course of trial proving that the sanction had been accorded by the competent authority under the relevant provisions of the statute.
32. In this connection, useful reference may be made to the decision reported in : 1963CriLJ347 (State of Rajasthan v. Sripal Jain), wherein Their Lordships of the Supreme Court have observed in paragraph 6 as follows :
'It is well settled that any defect of form in the order by Government would not necessarily make it illegal and the only consequence of the order not being in proper form as required by Art. 166 is that the burden is thrown on the Government to show that the order was in fact passed by it.'
33. Worthy it is to make a special mention here of the decision of the Supreme Court reported in : [1964]6SCR368 (Chitralekha v. State of Mysore), wherein Their Lordships of the Supreme Court have observed in paragraph 4 as follows :
'........... It is, therefore, settled law that provisions of Art. 166 of the Constitution are only directory and not mandatory in character and if they are not compiled with, it can be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor.'
34. So far as the case on hand is concerned, it is admitted that it is at the stage of framing of charges against the petitioners-accused before the Special Judge. The sanction order, even if found to be defective, can be proved by independent evidence to be adduced by the prosecution during the course of trial that the same had been accorded by the competent authority and it may be permissible for the defence to challenge such evidence, if adduced. If there is no defect in any form in the sanction order, it is open to the prosecution to mark the sanction order without letting in any further evidence as being beyond the purview of the Act.
35. The next question that falls for consideration is as to whether it is necessary for the sanction to be accorded only by the authority competent to remove the person accused of offence from office and whether it is not permissible for an authority different form the one, who is higher in rank than that of the authority competent to remove such a person. The position is very well settled that the authority higher than the authority compete to remove can very well accord sanction for prosecution. In support of such a proposition, the observations of their Lordships of the Supreme Court in the decision reported in : (1982)IILLJ281SC (Sampuran Singh v. State of Punjab) may be referred to here, which are as follows :-
'Under Art. 311, the authority to remove should not be subordinate to that by which he appointed. That does not mean that the power cannot be exercised by an authority higher than the appointing one. Art. 311 does not require that dismissal or removal must be ordered by the same authority who made the appointment. There is a compliance with Clause (1) of Article 311 if the dismissing authority is not lower in rank or grade than the appointing authority.'
36. So far as the case on hand is concerned, the order sanctioning the prosecution had been issued by the Government of Tamil Nadu is respect of some of the petitioners. The sanction for prosecution having been issued by a higher authority, namely, Government of Tamil Nadu is definitely a valid sanction on the face of the decisions referred to above.
37. Now, Points 3 to 5 as catalogued above, may be grouped together for consideration and discussion as their grouping would facilitate to avoid repetition of certain relevant facts and provisions of law. There is no manner of doubt whatever that learned X Metropolitan Magistrate, before whom preliminary report under Section 173 Crl.P.C. had been filed, had taken cognizance of the offences by issuing process directing the petitioners and others to appear before him on a specified date. True it is also that learned Magistrate had taken cognizance of certain specific offences under Indian Penal Code alone. It cannot also be denied that even at the time when the preliminary report had been filed, the respondent-Special Police Establishment (CBI) collected certain relevant materials with regard to the offences under the Act, 1947, such as examination of the approver Balasundaram and what not. In legal parlance, the act of taking cognizance is with reference to offences and not with reference to offenders-accused. As such, learned Magistrate, while taking cognizance, must be deemed to have taken cognizance of the entirety of the case in respect of all offences disclosed by the materials collected in the shape of statements recorded under Section 161 Crl.P.C. and of the documents enclosed along with the report filed by the police. So, learned Magistrate, in the instant case, must be deemed to have taken cognizance of not only offences under Indian Penal Code, but also offences under the Act, 1947.
38. A long line of countless decisions had been cited by learned counsel for the petitioners as to what is meant by 'cognizance', at what point of time, the act of cognizance had come to fruition; as to what all the external manifestations pointing out the act of taking cognizance; what all the legal consequences likely to flow form such act of taking cognizance; whether it is permissible to take second cognizance of the same offence for which cognizance had been taken earlier; as to what is the procedure to be adhered to in the case of taking cognizance of offence under the Act, 1947 and allied matters, with respect to which, I feel it to be expedient to refer only to such of those decisions of the apex of the judicial administration of country, which will dispose of in unmistakable terms all these bones of contentions, after making a cursory reference to certain relevant provisions of the Code of Criminal Procedure as well as the Act, 1952.
39. To understand in the best of way possible, the implications of the scheme underlying in the enactment of the Act, 1952, it is now necessary to take notice of salient provisions of the Act, 1952. The Act was enacted as its long title shows to amend the Indian Penal Code and the Code of Criminal Procedure and to provide for a more speedy trial of certain offences. Section 6 deals with provisions for appointment of Special Judges. It reads as under :-
'6. (1) The State Government may, by notification in the official Gazette, appoint as many Special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offences, namely :
(a) an offence punishable under Section 161, Section 162, Section 163, Section 164, Section 165 or Section 165A of the Indian Penal Code (Act XIV of 1860) or Section 5 of the Prevention of Corruption Act, 1947. (II of 1947);
(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).
(2) A person shall not be qualified for appointment as a Special Judge under this Act unless he is, or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1898 (Act V of 1898)'.
40. Section 7 confers exclusive jurisdiction on the Special Judge appointed under Section 6 to try the cases set out in Sections 6(1)(a) and 6(1)(b). Sub-section (3) of Section 7 enlarges the jurisdiction of the special Judge not only to try offences set out in Sections 6(1)(a) and 6(10)(b) but also to try offences set out in Sections 6(1)(a) and 6(1)(b) but also to try offences other than those mentioned therein with which the accused may, under the Code of Criminal Procedure, be charged at the same trial.
41. Section 8 deals with the procedure and power of a Special Judge. It is as under :-
'8(1) Special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898) for the trial of warrant cases by Magistrates.
(2) A special Judge may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof; and any pardon so tendered shall, for the purposes of Sections 339 and 339-A of the Code of Criminal Procedure, 1898, be deemed to have been tendered under Section 338 of that Code.
(3) Save as provided in sub-section (1) sub-section (2), the provisions of the Code of Criminal Procedure, 1898, shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of the said provisions, the Court of the Special Judges shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor.
(3-A) In particular, and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of Sections 350 and 549 of the Code of Criminal Procedure, 1898 shall, so far as may be, apply to the proceedings before a Special Judge, and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate.
(4) A Special Judge may pass upon any person convicted by him any sentence authorised by law for the punishment of the offence of which such person is convicted.'
42. Section 9, which contains a provision for appeal and revision provides for the subordination of the Special Judge to the High Court of the State in the matter of appeal, revision and other incidental powers, which the High Court exercises over sub-ordinate courts.
43. From a bare perusal of Section 8 as extracted above, it is clear that sub-section (1) of that Section confers the power on a Special Judge to take cognizance of offences set out in Sections 6(1)(a) and 6(1)(b) but it does not directly or indirectly, expressly or by necessary implication indicate the method of taking cognizance. It merely says that a Special Judge shall take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by the Magistrate. The Code of Criminal Procedure has prescribed four known methods for taking cognizance of offences by the Court competent to try the same. The Court has to take cognizance of the offence before investigation of the proceeding can be contemplated.
44. At this juncture, useful reference has to be made to Section 6 of the Code of Criminal Procedure, which provides for setting up criminal Courts, besides the High Court to every State. They are :-
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
These are the Criminal Courts in every State.
45. The Code made detailed provision for powers of police officers entitled to investigate offences, procedure of investigation, powers of various Courts to take cognizance of offences, which that particular court is entitled to try under Code. Section 190, Cri.P.C. confers power on the Magistrate to take cognizance of an offence in one of the manners therein prescribed. The expression 'Magistrate' in Section 190 is a compendious term which includes Judicial Magistrate of the first class, Metropolitan Magistrate, Judicial Magistrate of the second class and Executive Magistrate. All the three are comprehended in Section 190. But then there is another court of original jurisdiction, namely, Court of Session also being set up under Section 6. Court of Session cannot take cognizance directly because Section 193 provides that except as otherwise expressly provided by the Code or by any other land for the time being in force, no Court of Session shall take cognizance of any offence as a court of original jurisdiction, unless the case has been committed to it by a Magistrate. In other words, Court of Session can take cognizance of an offence only upon an order of commitment made by the Magistrate and in no other manner. This necessitated conferring power on the Magistrate to commit cases to the Court of Session. Any other mode of taking cognizance is specifically barred under Section 193.
46. Section 4 of the Code of Criminal Procedure provides as under :
'4. Trial of offences under the Indian Penal Code and other laws :-
(1) All offences under the Indian Penal Code (45 of 1860), shall be investigated, inquired into, tried, and otherwise dealt with 'according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.'
Section 4(1) provides for investigation, inquiry or trial for every offence under the Indian Penal Code according to the provisions of the Code. Section 4(2) provides for offences under the law which may be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code of Criminal Procedure, but subject to any enactment for time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to that statute, the same will have to be investigated inquired into, tried and otherwise dealt with according to the Code of Criminal Procedure. In other words, Code of Criminal Procedure is the parent statute which provides for investigation inquiring into and trial of cases by criminal courts of various designations.
47. The four methods prescribed by the Code for taking cognizance, not adverted to earlier, may be referred to here. Cognizance can be taken :-
(i) Upon a complaint;
(ii) Upon report of the police officer;
(iii) Where the Magistrate himself comes to know of the commission of the offence through some other wource; and
(iv) In the case of Session, upon a commitment by the Magistrate.
There is no other known or recognised mode of taking cognizance of an offence by a Criminal Court. The Court of a Special Judge is undoubtedly a criminal court within the four modes of taking cognizance subject to the provisions of the Act, 1952. The last mode upon commitment by a Magistrate as set out, in Section 193 had been excluded, as already stated. As such, the only other mode by which the Court of a Special Judge can taken cognizance of an offence for the trial of which it was set up is any one of the remaining three other modes known to law, by which Criminal Court would take cognizance of an offence. Taking cognizance is not an idle formality, but it is an act with view to initiating proceedings and ultimately to try the accused. If the language employed in Section 8(1) of the Act, 1952 is read in this light and in this background that a Special Judge can take cognizance of an offence without the accused being committed to him for trial, it necessarily implies that the Court of a Special Judge is armed with power to take cognizance of offences but it is denied the power to take cognizance on commitment by the Magistrate. Then remains only Section 190 Crl.P.C. which provides various methods of taking cognizance of offences by Courts. It is idle to say that Section 90 is confined to Magistrate and Special Judge is not a Magistrate, especially on the face of explicit and express provision adumbrated in sub-section (3) of Section 8 of the Act, 1952 treating the Special Judge by a fiction to be a Magistrate for all practical purposes of giving effect to the provisions of the Code of Criminal Procedure. As such, the Special Judge can take cognizance of an offence as a Court of Original Jurisdiction either upon a complaint or upon a police report or upon his coming to know in some other manner of the offences having been committed.
48. It is quite proper at this juncture to consider the effect of sub-section (5) of Section 306, Crl.P.C. Under this sub-section, the Magistrate taking cognizance of the offence is cloathed with power to commit the case for trial after the examination of the approver under sub-section (1) thereof the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate, (2) to a Court of Special Judge appointed under the Act, 1952, if the offence is triable exclusively by the Court; and (3) in any other case make over the case to the Chief Judicial Magistrate, who will try the case himself. From what has been stated as above, it is clear that the Magistrate before whom the final report is filed under Section 173, Cri.P.C. is competent to commit a case to the Special Judge in case the offences disclosed by the final report are exclusively triable by a Special Judge, after taking cognizance of the case, besides the examination of the approver. This sub-section of the Code of Criminal Procedure on the face of sub-section (3) of Section 8 of the of the Act, 1952 appears to be not consistent and therefore cannot, in the eye of law, prevail over it and the provisions of the Act, 1952 alone will govern the situation.
49. Worthy in this context to refer to the scintillating observations of the Supreme Court expressed in lucid language detailing the powers of the Special Judge and the procedure to be adopted by him in there decision reported in 1984 SCC (Cr.) 277 : 1984 CLJ 647 (A. R. Antulay v. Ramdas Srinivas Nayak and another) at pages 302-303 (of SCC) : (at p. 663 of Cri LJ), which are as follows :-
'Now that a new criminal court was being set up, the Legislature took the first step of providing its comparative position in the hierarchy of courts under Section 6, Crl.P.C. by bringing it on level more or less comparable to the Court of Session, but in order to avoid any confusion arising out of comparison by level, it was made explicit in Section 8(1) itself that it is not a Court of Session because it can take cognizance of offences without commitment as contemplated by Section 193, Crl.P.C. Undoubtedly in Section 8(3) it was 'clearly laid down that subject to the provisions of sub-sections (1) and (2) of Section 8, the Court of Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors. In contradistinction to the Sessions Court this new court was to be a court of original jurisdiction. The Legislature then proceeded to specify which out of the various procedures set out in the Code, this new Court shall follow for trial of offences before it. Section 8(1) Specifically says that a Special Judge in trial of offences before him shall follow the procedure prescribed in the Code of Criminal Procedure for trial of warrant cases by Magistrates. The provisions for trial of warrant cases by the Magistrate are to be found in Chapter XXI of 1898 Code. A glance through the provisions will show that the provisions therein included catered to both the situations, namely, trial of a case initiated upon police report (Section 251-A) and trial of cases instituted otherwise than on police report (Sections 252 to 257). If a Special Judge is enjoined with a duty to try cases according to the procedure prescribed in foregoing provisions he will have to first decide whether the case was instituted upon a police report or otherwise than on police report and follow the procedure in the relevant group of sections. Each of the Sections 251-A to 257' of 1898 Code which are in pari materia with Sections 238 to 250 of 1973 Code refers to what the Magistrate should do. Does the Special Judge therefore, become a Magistrate This is the fallacy of the whole approach. In fact, in order to give full effect to Section 8(1), the only thing to do is to read Special Judge in Sections 238 to 250 wherever the expression, 'Magistrate ' occurs. This is what is called legislation by incorporation. Similarly, where the question of taking cognizance arises, it is futile to go in search of the fact whether for purposes of Section 190 which conferred power on the Magistrate to take cognizance of the offence, Special Judge is a Magistrate What is to be done is that one has to read the expression, 'Special judge' in place of Magistrate, and the whole thing becomes crystal clear. The Legislature wherever it found the grey are clarified in by making specific provision such as the one in sub-section (2) of Section 8 and to leave no one in doubt further provided in sub-section (3) that all the provisions of the Code of Criminal Procedure shall so far as they are not inconsistent with the Act apply to the proceedings before a Special Judge.'
50. In this connection, useful reference may also be made to the observations of the Supreme Court in the decision reported in : 1988CriLJ1661 (A. R. Antulay v. R. S. Nayak at page 1560 (of AIR) : (at p. 1690 of Cri LJ), which are as follows :-
'We proclaim and pronounce that no man is above the law, but at the same time reiterate and declare that no man can be denied his rights under the Constitution and the laws. He has a right to be dealt with in accordance with the law and not in derogation of it. This Court, in its anxiety to facilitate the parties to have a speedy trial gave directions on 16th February, 1984 as mentioned hereinbefore without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952 Act and that being the only procedure established by law, there can be no deviation from the terms of Article 21 of the Constitution of India. That is the only procedure under which it should have been guided. By reason of giving the directions on 16th February, 1984 this Court had also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law. When these factors are brought to the notice of this Court, even if there are any technicalities, 'This Court shouldn't feel shackled and decline to rectify that injustice or otherwise the injustice noticed will remain forever a blot on justice. It has been said long time ago that 'Actus Curiae Neminem Gravabit' an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.'
51. Their Lordships of the Supreme Court, while making these observations, had also the occasion to refer to the observations of Lord Cairns in Alexander Rodger The Comptoir D'Escompte De Paris (1869) LR 3 PC 465 in paragraph 84 of their judgment, which are as follows :
'Now their Lordships are of opinion, that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression 'the act of the Primary Court, or of any Intermediate Court of appeal, but the act of the Court as a whole, form the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. 'It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court.'
52. Their Lordships further observed at page 1561 thereof as follows :-
'The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the Court. No man should suffer a werong by technical procedure of irregularities. Rules or procedure are the (handmaids) of justice and not the mistress of the justice. Ex Debito Justice, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied.'
53. The observations of the Supreme Court in the decision reported in 1971 SCC (Cri) 628 : (1971 CLJ 1697 (Darshan Singh Ram Kishan v. State of Maharashtra) may also be quoted here, which revolve round the question of taking cognizance and which are as follows (para 8 of Cri LJ) :-
'Taking cognizance, does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. 'Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. Therefore, when a Magistrate takes cognizance of an offence upon a police report, prima facie, he does so of the offence or offence disclosed in such report.'
54. From what has been stated above, it is clear that the act of learned X Metropolitan Magistrate, in the case on hand, in taking cognizance of the case on the preliminary report filed by the Special Police Establishment (CBI) by the issuance of process to the petitioners and others and submission of the final report to the Special Judge without any formal committal and examination of the approver and the act of learned Special Judge taking cognizance of the case, on receipt of the final report and making an order in the transfer application filed by the Special Police Establishment (CBI) withdrawing and transferring the case form the Magistrate to his file for being clubbed with the case to be taken on his file on the basis of the final report cannot at all be stated to be acts done not in conformity with the provisions of law. As such, the submissions of learned Counsel for the petitioners on these three points merit little substance.
55. The next two points, namely points (6) and (7) revolving on the character and nature of the proceedings and the adequacy or otherwise of the materials for further proceeding may together be considered from the point of view of convenience. If the materials collected in the case, besides being grossly inadequate, in the sense of not prima facie disclosing any offence whatever, would reflect the transaction as one of civil nature, then it goes without saying that the proceedings initiated before the court below against the petitioners definitely deserve to be quashed as the same is nothing but sheer abuse of process of law causing agony and anguish of facing trial before a criminal court, by invoking the extraordinary jurisdiction of this court under the Section 482, Crl.P.C. For the better appreciation of these points, two pioneering decisions of the Supreme Court explaining in so unambiguous and clear-cut-terms the extent of amplitude of the power, besides Section 26 of the General Clauses Act, 1897 ('Act, 1897' for short) may be referred to.
56. The first decision is the one reported in : 1960CriLJ1239 R. P. Kanpur v. State of Punjab), wherein Their Lordships of the Supreme Court, have observed in paragraph 6 as follows :-
'Before dealing with the merits of the appeal it is necessary to consider the nature and scope of inherent power of the high court of under the Section 561-A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of the justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case, the magistrate before whom the police report has been filed under the Section 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well established that the inherent jurisdiction of the High Court can be exercised to quash the proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of the justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction 'can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of the justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do no constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but 'there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is a legal evidence which not its appreciation may or may not support the accusation in question. In exercising its jurisdiction under the Section 561-A, the High court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under the Section 561-A of Act in matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point.'
57. The facts of the other decision in : 1977CriLJ1125 State of Karnataka v. L. Muniswamy), which is indicative of a slight departure and deviation made form the decision referred to above in enunciation of the principles governing the invoking of the jurisdiction of the inherent power of the High court under the Section 482 of Cr.P.C. (Section 561-A of the Old Code), may usefully be referred to here for better appreciation. Certain specific individuals accused, against whom a report under the Section 173, Cri.P.C. has been filed for offences under the Sections 324, 326, and 307 read with the Section 34 I.P.C., faced trial before the Court of Session, after commitment. AT the time of the framing charges, some of them were discharged by the learned Sessions Judge and the case was adjourned to another date, observing that there was some material to hold that the remaining accused had something to do with the incident for framing specified charges. The accused, not discharged, aggrieved by the order filed two revision petitions before this High Court, which were allowed by the High Court, taking the view that there was no sufficient ground for proceedings against them. In appeal, by Special Leave, the appellant-State contended :-
(1) The High court ought not to have exercised its powers to quash the proceedings against the respondents without giving to the Sessions court, which was seized of the case, an opportunity to consider whether there was sufficient material on the record on which to frame charges against the respondents; and
(2) In any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents.
Dismissing the appeal, the Court held :-
(1) The High Court was justified in holding that for meeting the ends of the justice the proceedings against the respondents ought to be quashed. It would be a sheer waste of public time and money to permit the proceedings to continue against the the respondents, when there is no material on the record on which any tribunal could reasonably convict them for any offence connected with the assault on the complainant. This is on of these cases in which a charge of conspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking.
(2) The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a Court proceeding sought not to be permitted to degenerate into a weapon of harassment or prosecution. In criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceedings in the interest of justice.
(3) Considerations justifying the exercise of inherent powers for securing the ends of justice vary form case to case and a jurisdiction as wholesome as the one conferred by Section 482 ought not to be encased within the strait-jacket of a rigid formula. The three instances cited in the judgment in R. P. Kapoor v. State of Punjab (1960) 3 SCR : 1960 CLJ 1239 as to when the High court would be justified in exercising its inherent jurisdiction are only illustrative and can in the very nature of things not be regarded as exhaustive.
(4) It is wrong to say that at the stage of framing charges the Court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence.
(5) While considering whether there is sufficient ground for proceedings against an accused, the court possesses comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible.
(6) In the instant case, the High Court is right in its view that the material on which the prosecution proposed to rely against the respondents, is wholly inadequate to sustain the charge that they are in any manner connected with the assault on the complaint.
(7) The grievance that the High Court interfered with the Sessions Court's order prematurely is not justified. The case was adjourned by the Sessions Judge not for deciding whether any charge at all could be framed against the remaining accused, but for the purpose of deciding as to which charge or charges could appropriately be framed on the basis of the material before him.
(8) The object of the Section 227 of the Code of Criminal Procedure Act, 2 of 1974, is to enable the superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused.
(9) The High Court is entitled to go into the reasons given by the Sessions Judge in support of this order and to determine for itself whether the order is justified by the facts and circumstances of the case.
(10) In the exercise of the wholesome power under the Section 482 of the Act 2 of 1974 (Section 561 of the 1898 Code), The High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.
58. The facts of the instant case, which consist of voluminous materials in the shape of documents and oral testimony of witness besides the testimony of the approver Balasundaram, who tarred himself with the same brush with which he tarred others, pointing out the hatching of a conspiracy among the various conspirators accused to forge R.C. books of 39 non-existing transport vehicles, using the same as genuine documents and getting all those vehicles re-registered in the respective Regional Transport Offices in the city of Madras with the tacit support rendered by the Motor Vehicles Inspectors (the petitioners herein, excepting the petitioner in Crl.M.P. No. 10046 of 1988) though there is no statutory duty cast on them for physical verification and inspection in giving inspection reports concerning the vehicles stated to have been inspected by them for illegal gratification and thereby facilitating the prima accused 1 Robin Mayne along with his other associates to cheat and defraud the nationalized banks by entering into hire purchase. Transaction with them and obtaining huge loans to the extent of Rs. 56 lakhs and odd by hypothecating all those vehicles, form the foundation of the case of the prosecution.
59. In a conspiracy, the intention to do a criminal act is itself a crime unlike in other offences which require not only the intention to do criminal acts but also in addition something committed in execution of the intention. The essence of the conspiracy being bare agreement between the conspirators, the same has to be proved in the manner allowed by law. While accepting the proof of the conspiracy, reality of the situation has to be taken into account. Conspiracy as a whole is brought about in secrecy and the proof of the same, by adduction of evidence direct, is really an impossible feat in most of the cases, though in the rarest of rare occasion, the possibility of the obtaining such evidence is there. As such the conspiracy may be proved in most of the cases, by process of inference or induction from relevant proved facts and circumstances. The materials collected in the case would prima facie point out the existence of certain relevant facts and circumstances, which if proved in the course of trial, would make it possible for the Court to infer therefrom the existence of the conspiracy amongst the conspirators to commit the various offences.
60. The relevant facts and circumstances are :-
(1) The testimony of the approver refers to his participation in the conspiracy to forge R.C. books and payment of illegal gratification in a sum of Rs. 4,500/- to the personel of the Regional Transport Offices for the insurance of re-registration certificates for each vehicles, through the medium of touts.
(2) The vehicles in respect of which re-registration certifications had been issued were found to be non-existing vehicles.
(3) The issuance of physical verification and inspection reports by the petitioners (barring the petitioners in Cri.M.P. No. 10046 of 1988) with regard those non-existing vehicles facilitated the re-registration of the vehicles by the concerned Regional Transport Office.
(4) Re-registration of all those vehicles followed by the issuance of R.C. book of such registration facilitated accused 1 Robin Mayne along with his associates to cheat and defraud nationalised banks by entering into hire purchase transactions with them and securing loans to the extent of Rs. 56 lakhs and odd by hypothecating the vehicles as security thereof.
(5) Certain diaries seized from the house of accused 1 Robin Mayne during the course of search of his house would point out prima facie payment of huge sums of money to accused 31 then Minister for Agriculture and the members of his family, obviously as a reward for facilitating him to obtain huge loans form the nationalised banks by lure of huge amounts to be invested the respective nationalized banks form the Tamil Nadu Agricultural Marketing Board by issuance of number of G.Os. by accused 31 then Minister for Agriculture for investment of the funds of the Tamil Nadu Agricultural Marketing Board in such nationalised banks, proclaiming to the outside world the enormity of the influence which accused 1 Robin Mayne had with the then Minister for Agriculture (accused 31) and making the bank officers a prey of the grant of such huge loans in a hurly-burly fashion, possibly even without verifying the correctness or otherwise of the records produced for securing such loans.
61. From the aforesaid circumstances, it cannot be stated that he prosecution is handicapped in not having enough materials prima facie pointing out the hatching of a criminal conspiracy among the conspirators, by the process of induction nor inference. Apart form the conspiracy, which is by itself an offence, the other voluminous materials collected by the prosecution also would prima facie point out various individual offences having been committed by the conspirators accused in respect of which the trial court alone will be having jurisdiction to sift those materials and come to the conclusion whether those offences are proved or not. This court under its inherent powers cannot at all do the same feat of a trial Court. I which to make it clear that this is not a case where material on record, if unrebutted, are such, on the basis of which a conviction cannot be said reasonably to be possible.
62. Yet another submission with all force and vehemence focusing my attention revolving on the case being purely of civil nature, I am of the view that it is a lack-luster submission without any merit whatever, in the facts and circumstances of the case. The case on hand is not one of such a nature of simple execution of hire purchase agreement, besides entering into a transaction of hypothecation relatable to existing transport vehicles and the moment the default had been committed in paying the agreed installments, it cannot be stated that in such a circumstance, the transaction which is of civil nature will get automatically transformed into one of a criminal nature, in the sense of there being entertainment of an offence of cheating by the entertainment of a dishonest intention to cheat or to deceive at the time when the transaction was entered into between the parties concerned. As already referred to, the transport vehicles in respect of which transactions had been had been entered into with the nationalised, banks are all prima facie non-existing vehicles and the R.C. books produced were forged ones and the re-registration certificates of those vehicles were obtained on those forged R.C. books for illegal gratification. All these feats that are alleged to have been performed, as stated earlier, were in pursuance of an alleged conspiracy. Such facts collected during investigation, if perused would unmistakably reveal various offences not only under the Indian Penal Code, but also under the Act, 1947. All the loans sanctioned by the nationalised banks also became sticky in the sense that they were in a position to realise them. As such, on the facts of this case, it is prima facie clear that actions, both under the civil law as well as Criminal law had to be resorted to in the competent forum. There is no manner of doubt whatever that if the facts of a case constitute penal offences as well as giving rise to actions in Civil forums, both the actions may simultaneously be prosecuted for the requisite relief.
63. The further submission focussed on these points is that he facts of this case, which only revealed refractions or violations attracting penal consequences, had if at all to be construed to have been made under the provisions of the Hire Purchase Act and the Motor Vehicles Act and since the provisions of those two Acts had not been included in the notification issued by the Central Government under the Section 3 of the Act, 1946, after obtaining sanction of the Government of Tamil Nadu in accordance with the provisions of the Section 6 read with the Section 5(1) of the said Act, the proceedings initiated against the petitioners are liable to be quashed. This submission is akin to the glitter and shine of the dew drops reflected ephemerally by the rising of the morning sun and eclipsed thereafter. It is to be mentioned here that this submission was not a all amplified by stating the penal consequences to be attracted by the facts of this case constituting the offences under the provisions of those Acts. I am unable to find on the sifting of the materials available on record that the case on hand attracted the penal consequences of the provisions of those Acts. Even assuming for arguments sake such a position does arise in this case. I am afraid that the same is going to advance or improve the case of the petitioners to any extent whatever on the face of the salient provisions contained in Section 26 of the Act, 1897, which makes provisions as to offences punishable under the two or more enactments and it reads as follows :-
'26. Provisions as to offences punishable under the two or more enactments :- Where an act or omission constitutes an offence under the two or more enactments, then the offender shall be liable to be prosecuted and punished under either of any of those enactments, but shall not be liable to the prosecuted and punished under either of any of those enactments, but shall not be liable to be punished twice for the same offence.'
64. A bare perusal of the aforesaid provision clearly reveals that where an act or omission constitute an offence under the two or more enactments, then the offender is liable to be prosecuted and punished, either under any one of those enactments, but what is prohibited is that he shall not be liable to be punished for the same offence twice. In the instant case, the petitioner had been prosecuted for offences under the Indian Penal Code as well as the Act, 1947. The petitioner's prosecution under those two enactments, on the face of the provisions of the Section 26 of the Act, 1897 coupled with the notification under the Section 3 of the Act, 1946 can by no stretch of imagination be stated to be not permissible.
65. As regards the last submission, it is not in dispute that the procedure to be adopted by the police in filing a report before the Magistrate empowered to take cognizance is adumbrated in the sanguine provisos of the Section 173 Crl.P.C. No doubt true it is that this section does not at all reflect to the reports being interim and final and what it simple states is that the police officer in charge of the police station, shall forward to a Magistrate empowered to take cognizance of the offence on police report, a report in the form prescribed by the State Government stating the relevant details as specifically mentioned under the Clauses (a) to (g) of sub-section (2) of this Section. It is to be taken note of here that the Section 173, Cr.P.C. had under one a terrific change under the recommendation of the law Commission form the original Code and a new sub-section (8) had been inserted, which prescribes that nothing in the Section shall be deemed to preclude further investigation in the respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and whereupon such investigation the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form of prescribed And the provisions of the sub-section (2) to (6) shall, as far as may be, apply in relation to such report forwarded under the sub-section (2).
66. From the aforesaid sub-section, it is rather very clear that powers of the police with regard to the investigation are sought to be preserved intact making it possible or feasible for them to make further investigation in respect of an offence even though a report under sub-section (2) had earlier been forwarded to the Magistrate competent to take cognizance. What is required in such a circumstance is the police officer in charge of the police station, in case he obtains any further evidence, oral or documentary, shall forward to the Magistrate a further report of reports regarding such evidence in the form prescribed. On the face of the expression and explicit provisions it goes without saying that there is no need for the station house officer to approach the Magistrate for making further investigation.
67. In this connection, the decision of the Supreme court reported in 1979 SCC (Cri) 479 : 1979 CLJ 1346 (Ram Lal Narang v. State (Delhi Administration) sought to be relied upon by the petitioners in canvassing the point urged may been considered. In that case, two points came to be determined before the Supreme Court :-
'(1) Whether the two conspiracies, which were the subject-matters of two FIRs and two charge-sheets, were the same and therefore, there was an implied bar to the power of the police to investigate into the subsequent FIR and the power of the Court at Delhi to take cognizance of the case upon the report of such information; and
(2) What was the duty of the police on discovering that the conspiracy, which was th subject-matter of the earlier case, was part of a larger conspiracy; whether the police acted without jurisdiction in investigating in continuing to investigate into the case and whether the Delhi Court acted illegally in taking cognizance of the case ?'
The Court held,
(1) The question is not whether the nature and character of the conspiracy has changed by the mere inclusion of a few more conspirators as accused or by the addition of one more among the objects of the conspiracy. The question is whether the two conspiracies are in substance and truth the same. Where the conspiracy discovered later is found to cover a larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions.
The facts and circumstances of the present case and a comparison of the two FIRs and the two charge-sheets show that the conspiracy which was the subject-matter of the second case could not be said to be identical with the conspiracy which was the subject matter of the first case. The conspirators were different. Malik and Mehra alone were stated to be the conspirators in the first case, while the Narang brothers were alleged to be the principal conspirators in the second case. The objects of the two conspiracies were different. The alleged object of the first conspiracy was to obtain possession of the pillars form the Court by cheating and to misappropriate them. The alleged object of the second conspiracy was the disposal of the stolen property by exporting the pillars to London. The offence alleged in the first case was Section 120-B, read with the Section 420 and S. 406, I.P.C., while the offences alleged in the second case were Section 120B, read with the S. 411, I.P.C. and Section 25 of the Antiqui and Art Treasures Act, 1972. When the investigation commenced a second time, apart from the circumstance that the property involved was the same, the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known. The conspiracies which are the subject-matter of the first case may, perhaps, be said to have turned out to be part of the conspiracy which is the subject-matter of the second case.
(2) Under the Criminal Procedure Code, 1898 the statutory rights and duties of the police to 'register every information relating to the commission of a cognizable offence, and to investigate the facts and circumstances of the case where commission of a cognizable offence was suspected and to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offences upon a police report, were not circumscribed, 'By any power of the superintendence or interference in the Magistrate; nor was any sanction required from a Magistrate to empower the police to investigate into a cognizable offence.
Ordinarily, the right and duty of the police would end with the submission of a report under the S. 173(1), Cr.P.C. upon receipt of which it was up to the Magistrate to take or not to take cognizance of the offence. But in the 1898 Code there was no express provision prohibiting the police from launching upon an investigation into the fresh facts coming coming to light after the submission of the report under the Section 173(1) or the after the Magistrate had taken cognizance of the offence and as such the police could exercise its right to further investigate as often as necessary when fresh information came to light. However, the police, in such cases, could express their regard the respect for the Court by seeking its formal permission to make further investigation.
Occasions may arise when a second investigation started independently of the first may disclose a wide range of offences including those covered by the first investigation. Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case, it is up to the prosecuting agency or the accused concerned to 'take necessary action by moving the appropriate superior Court to have the two cases tried together. The magistrate themselves may take action suo motu. It is within the Magistrate's discretion to decide upon his future course of action depending upon the stage at which the case is before him. That the final word is withe the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation.'
The observations of the Supreme court in paragraph 21 at page 494 (of SCC) : (at p. 1557, para 22 of 1979 Cri LJ 1346), are also worth-mentioning here and the same are as follows :-
'As observed by us earlier, there was no provision in the Cr.P.C., 1898 which expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor S. 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted reported investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate has taken cognizance of the offence upon a police report submitted under the S. 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to 'make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.'
68. It is to be taken note of here that a the above decision of the Supreme Court considered the effect of the S. 173 as it stood in the old Code of Criminal Procedure, 1898. After amendment, the section was undergone a metamorphic change. The old sub-section (1) is split up into two and sub-sections (1) and (2) are re-drafted. The other sub-sections (2) and (3) are re-numbered as sub-sections (3) and (4) respectively. The other sub-section (4) is replaced by the sub-section (5). The other sub-section (5) is renumbered as sub-section (6) and re-drafted and sub-sections (7) and (8) are newly inserted. As such, it cannot be stated that the Supreme Court had considered the effect of the newly amended sub-section (8), which is relevant for our purpose. On this ground, I am not going to exclude form the purview of operation of this decision to the case on hand the reason being that this decision instead of advancing the case of the petitioners to any extent whatever actually lends a solidified support to the prosecution. The observations of the Supreme Court, if carefully scanned, would point out that if the police desired to make further investigation, they could have expressed their regard and respect for the Court by seeking its formal permission to make further investigation and the fact that hey did not do so would not by itself be sufficient to dub the further investigation done by them as illegal.
69. So far as the case on hand is concerned, it is not as if the Special Police Establishment (CBI) had acted in a high-handed fashion in filing the final report. It is to be remembered here that they were struggling hard to obtain the relevant records from the then Ministry as the then Minister for Agriculture and his Personal Assistant were also involved in the case. So, they could not complete the investigation pertaining to them. They could not unduly wait long without filing any report before Court in respect of others so as to avoid stigma of investigation pending for quite a long period for no reason whatever. That could have been the reason which prompted them to file interim report on 2-9-1987 against others other than then Minister and his Personal Assistant.
70. It is worthwhile here it reproduce what they have stated in their interim report and the same is as follows :-
'All possible efforts were made to obtain the relevant records/ files from the State Government of Tamil Nadu in connection with the alleged involvement of Sri K. Kalimuthu and Sri R. Manickam but those records/files are not forthcoming. For making thorough investigation and coming to the correct logical conclusion it is necessary to obtain the relevant records/files from the State Government of Tamil Nadu and the Hon'ble Court would be moved separately to issue summons to the custodian of these documents to produce the same before the Court/Investigating Officer. As the investigation into the alleged role of S/Sri Kalimuthu and Manickam is not over, they have not been arraigned as accused in this interim charge-sheet and a supplementary under the appropriate sections of law in respect of the offences disclosed during the further investigation before the Court of competent jurisdiction.'
71. It is also of signal importance to take note of here that they were able to obtain the relevant records subsequent to the fall of the then Ministry during the President's rule and complete the investigation by examining some more witnesses and filed the final report on 13-6-1988. From this, it is clear that it is not as if the final report had been filed without any collection of material and examination of witnesses. It is not as if the Magistrate before whom the interim report was filed, after applying his mind refused to take cognizance and pass a judicial order closing the case once and for all so that it is well-nigh possible, in such circumstances, to rise an argument that the police could not make any investigation in respect of the offences for which a report had been earlier filed. So far as the case on hand is concerned, the Magistrate did not pass any order closing the proceedings once and for all and what he did was that he took cognizance of the case by issuing process. Only in such a situation the final report had been filed. As such, this point also fails as of little substance.
72. In view of what has been stated above, all these petitions deserve to be dismissed.
73. In the result, all these petitions are dismissed.
74. Petitions dismissed.