1 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (DIVISION BENCH: HON. MR. JUSTICE S.K. SETH & HON. MR. JUSTICE PRAKASH SHRIVASTAVA) M.CR.C. NO.6572/2010 Ashutosh Shrivastava S/O Late Mr. Jagdish Prasad Shrivastava, Aged – about 54 years, Occupation – Govt. Service, R/O – 184, Jaora Compound, Indore (M.P.) .... Petitioner Vs. State of Madhya Pradesh Through Lok Ayukt Police, Indore. .... Respondent ------------------------------------------------------------------------------- Shri S.K. Vyas, learned senior advocate with Shri Atul Shreedharan, learned counsel for the petitioner. Shri Anand Soni, learned counsel for the respondent. ------------------------------------------------------------------------------- Whether approved for reporting:- O R D E R (Delivered on 9/2/2011) Per Prakash Shrivastava, J :- 1/ This petition under Section 482 of the Criminal Procedure Code has been filed for quashing the order dated 24.9.2010 passed by the Sessions Judge, Dhar in Special Case No.1/2010 taking cognizance of the offence under the provisions 2 of the Prevention of Corruption Act, 1988 (for short hereinafter referred to as “the PC Act”) and IPC against the petitioner. 2/ In brief, one Bhagirathi Yadav (complainant) had filed a complaint on 12.10.2009 before the S.P. Lok Ayukt stating that his services as daily rated Class-IV Employee were initially terminated and later on reinstated by the Government but he was not given appointment in pursuant thereto compelling him to approach the High Court and the High Court by order dated 24.9.2009 had directed to give him appointment. The complainant had contacted Smt. Premlata Chouhan, the in-charge of the Establishment Branch of the Dhar Office of Chief Medical and Health Officer. Smt. Chouhan had asked him not to meet any higher officer and bring Rs.25,000/- as bribe for his appointment. Thereafter, the complainant contacted S.P. Lokayukt office and he was given a tape recorder and on 13.10.2009 the complainant had recorded his conversation with Smt. Chouhan and handed over the tape recorder to the S.P. Lok Ayukt. On 23.10.2009 a trap was organized at the residence of Smt. Chouhan and the tainted money was recovered from Smt. Chouhan. The FIR was registered on 24.10.2009 against Smt. Chouhan. On 15.11.2009 the statement of the complainant was recorded, in which for the first time he stated that Smt. Chouhan, during the talks, had indicated that she was demanding money on behalf of the C.M.O. Complainant's supplementary statement was recorded about 5 months after the trap, when he stated that he had met the petitioner on several occasions and he had asked him to meet in-charge madam Chouhan. The State Government 3 had, by the order dated 1.9.2010, refused to grant sanction for prosecution of the petitioner under Section 7, 13(1)(d) and 13(2) of the PC Act but granted sanction to prosecute Smt. Premlata Chouhan for these offences. Thereafter the prosecution had filed Challan in the Court of the Special Judge alleging commission of offence under Section 12 of the PC Act and S.120-B of the Indian Penal Code (for short “the IPC”) only against the petitioner and alleging commission of offence under Section 7, 13(1)(d) and 13(2) of the PC Act and Section 120-B of the IPC against Smt. Premlata Chouhan. The learned Special Judge by the impugned common order dated 24.9.2010 has taken cognizance of the offence under Section 7, 12, 13(1)(d) and 13(2) of the PC Act and Section 120-B of the IPC, against the petitioner as well as Smt. Premlata Chouhan. Aggrieved with the same the present petition has been filed. 3/ Learned counsel appearing for the petitioner submitted that impugned order is not interlocutory order, therefore, the petition under Section 482 of the Criminal Procedure Code is maintainable. He further submitted that the learned Special Judge has taken cognizance mechanically without appreciating that no charge sheet for offence under Section 7, 13(1)(d) and 13(2) of the PC Act was filed against the petitioner and that the alleged offence is not made out against the petitioner on the basis of the charge sheet and that sanction to prosecute the petitioner for these offences was already refused. He further submitted that there is no material available to take cognizance of offence even under Section 12 of the PC Act and S. 120-B of the IPC against the petitioner. 4/ Learned counsel appearing for the respondent 4 supporting the impugned order submitted that the learned Special Judge has rightly taken cognizance of the alleged offences. He further submitted that the petition against the order taking cognizance, is not maintainable in view of the bar under Section 19 of the PC Act. 5/ We have heard the learned counsel for the parties and perused the record. 6/ The issue of maintainability of petition has come up in view of the provision contained in Section 19(3)(c) of PC Act which creates a bar in respect of the exercise of the revisional power by any court in relation to any interlocutory order passed in any inquiry, trial or other proceedings under the PC Act. It is the settled position in law that any order which substantially affects the right of a person or decides certain rights of the parties, cannot be said to be an interlocutory order. The Supreme Court in the matter of Amar Nath and others Vs. State of Haryana and others reported in (1977)4 SCC 137 in reference to an order summoning the person and putting him on trial, has held that with the passing of such an order the proceedings start and the question of a person being put on trial arise and by such an order the valuable right of that person is denied causing prejudice to him and further that compelling a person to face trial without proper application of mind by the Magistrate, cannot be held to be an interlocutory matter but it is an order which decides serious question as to the right of that person. It has been settled by the Supreme Court that the Revision or Petition under Section 482 of the Code of Criminal Procedure against such an order is 5 fully competent. Thus in view of the aforesaid position in law, the present petition cannot be dismissed as not maintainable. 7/ On merits, the impugned order states that the Challan against the petitioner was filed under Section 7, 12, 13(1)(d) and 13(2) of the PC Act read with Section 120-B of the IPC, whereas the record shows that the Challan has been filed by the prosecution against the petitioner alleging commission of offence under Section 12 of the PC Act and S.120-B of the IPC only. No Challan against the petitioner has been filed by the prosecution alleging commission of offence under Section 7, 13(1)(d) and 13(2) of the PC Act. Therefore, while taking cognizance the learned Special Judge had not properly looked into the Challan and has taken cognizance of the offences, for which no Challan was filed against the petitioner. 8/ Section 19 of the Act requires previous sanction of the Government before taking cognizance of any offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant. The learned Special Judge has also failed to take note of and consider the effect of Section 19 while taking cognizance of the offence under Section 7, 13(1) (d) and 13(2) of the PC Act against the petitioner. The learned Special Judge ought to have appreciated that grant of prior sanction by a competent authority is a sine qua non for taking cognizance of the offence under PC Act and ordinarily the question as to whether a prior sanction has been accorded for prosecution of the accused person or not, is a matter which should be dealt with at the stage of taking cognizance. The said 6 position is settled by the Supreme Court in the matter of Ashok Sahu Vs. Gokul Saikia and Another reported in 1990 (Supp) SCC 41 and in the matter of State of Karnataka through CBI Vs. C. Nagarajaswamy reported in AIR 2005 SC 4308. 9/ The learned Special Judge has also failed to take note of the order dated 1.9.2010 passed by the State Government refusing to grant sanction for prosecuting the petitioner for offences under Section 7, 13(1)(d) and 13(2) of the PC Act read with Section 120-B of the IPC. The State Government had passed an elaborate speaking order refusing to grant sanction stating that the petitioner was made accused for the said offences only on suspicion without any evidence, which was not permissible. In the impugned order there is no mention of the order of the State Government refusing sanction for prosecution of the petitioner for these offences. Learned Special Judge has failed to apply his mind on this material aspect of the matter. 10/ The learned Special Judge while taking cognizance of the offence was required to take notice of the accusation made against the petitioner, the material enclosed with the Challan and apply his mind to the allegation made against the petitioner. It is only when he applies his mind and he is satisfied that the allegations, if proved, would constitute a offence, he is required to take cognizance by initiating the proceeding against the alleged offender. The said position in law has been settled by the Supreme Court in the matter of Fakhruddin Ahmad Vs State of Uttaranchal and Anr. Reported in 2008 AIR SCW 5881. The 7 Supreme Court in the matter of Devendra and others Vs. State of Uttar Pradesh and Another reported in 2009(3) SCC (Cri) 461 referring to the earlier judgments in the matter of State of Karnataka Vs. Pastor P. Raju reported in 2006(6) SCC 728 and in the matter of Pawan Kumar Sharma Vs. State of Uttaranchal in Criminal Appeal No.1692 of 2007 decided on 10.12.2007, has reiterated that for taking cognizance of a offence it is obligatory on the part of the Magistrate to apply his mind to the contents of the charge sheet and such application of mind on his part should be reflected from the order. During the course of argument learned Counsel appearing for the respondent referring to the charge sheet, has failed to point out any evidence prima facie establishing the commission of offence under Section 7, 13(1)(d) and 13(2) of the PC Act read with Section 120-B of the IPC, against the petitioner. 11/ In the present case, the application of mind on the part of the learned Special Judge is not reflected from the order taking cognizance of the offence against the present petitioner in as much as, the learned Special Judge has wrongly noted that the Challan against the petitioner was filed under Section 7, 13(1)(d) and 13(2) of the PC Act read with S. 120-B of the IPC, whereas no such Challan alleging commission of offence under these sections was filed against the petitioner, learned Special Judge failed to take note of the reasoned speaking order of the State Government refusing to grant sanction for prosecuting the petitioner for these offences, he ignored the effect of Section 19 8 of the PC Act which require previous sanction of the Government for prosecuting a public servant for these offences and that there is no prima facie material against the petitioner in the Challan indicating commission of these offences by him. 12/ The reliance of the learned counsel for the respondent on the judgment of the Supreme Court in the matter of Harihar Prasad etc. V. The State of Bihar reported in 1972 Cri.L.J. 707 is of no help to him since in the present case not only the sanction for prosecution of the petitioner for offence under Section 7, 13(1)(d) and 13(2) of the PC Act was refused by a speaking order which is not considered at the time of taking cognizance but even the Challan was not filed against the petitioner alleging commission of these offences, and even from the Challan no material could be pointed out prima facie indicting commission of these offences by the petitioner. 13/ For the reasons stated above, the order of the learned Special Judge taking cognizance of the offence under Section 7, 13(1)(d) and 13(2) of the PC Act read with Section 120-B of the IPC, cannot be sustained and is hereby set aside. 14/ At this stage, it is worth noting that the Challan against the petitioner has been filed under Section 12 of the PC Act and Section 120-B of the IPC, for which no sanction for prosecution under Section 19 of the PC Act is required. Therefore, instead of examining correctness of taking cognizance of these offences at this stage we give liberty to the petitioner to raise all such issue as permissible in law at the stage of framing of charge in respect of these offences. 9 15/ Counsel for the respondent has placed reliance upon the judgment of the Supreme Court in the matter of State through Central Bureau of Investigation Vs. Parmeshwaran Subramani and Another reported in 2009 (9) SCC 729 but at this stage the benefit of the said judgment cannot be given since the issue of previous sanction for taking cognizance of offence under Section 12 of the PC Act has not been examined by this Court. 16/ In view of the aforesaid analysis, petition is allowed by quashing the impugned order dated 24.9.2010 so far as it relates to taking cognizance of the offence under Section 7, 13(1) (d) and 13(2) of the PC Act against the petitioner. (S.K. SETH) (PRAKASH SHRIVASTAVA) J u d g e J u d g e Trilok/-