Crl. Misc. No. M-35680 of 2009 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl. Misc. No. M-35680 of 2009 (O&M) Date of Decision : 10.3.2011 Satpal Singh .......... Petitioner Versus The State of Punjab ...... Respondent CORAM : HON'BLE Ms. JUSTICE RITU BAHRI Present : Mr. A.K. Walia, Advocate for the petitioner. Mr. Guninder S. Brar, AAG, Punjab. **** RITU BAHRI, J. This petition under Section 482 of the Code of Criminal Procedure has been filed seeking quashing of FIR No. 83 dated 18.12.1998 under Section 217/218 IPC, Police Station Vigilance Bureau Ferozepur Range, Ferozepur along with consequential proceedings arising therefrom. The petitioner has retired as Inspector of Police in the year 2000. An FIR has been registered against him by the Vigilance Bureau, Ferozepur. Sh. Satpal, Inspector, while posted as SHO, Police Station Cantt. District Ferozepur received a complaint from the Secretary, J.E. Union against Gurnam Singh s/o Surjan Singh. As per the complaint, the suspect Gurnam Singh by impersonating Crl. Misc. No. M-35680 of 2009 -2- himself before officials of different departments, as Reader to the D.S.P. Amarjit Sing of Vigilance Bureau, used to obtain bribe from them by misleading and black mailing them. When the Junior Engineers narrated all this to Satpal, Inspector, SHO, Police Station Cantt., Inspector Satpal instead of registering a criminal case on its basis, only recorded DDR No. 29 dated 26.2.1996, whereas Inspector Satpal was required to register a criminal case against the suspect Gurnam Singh. In this way, he has saved the suspect from punishment from the said offence. In this background, FIR under Sections 217/218 IPC has been registered on 18.12.1998. Section 217 IPC relates to disobeying of direction of law by public servant with intent to save a person from punishment. Section 218 IPC relates to framing of incorrect record or writing by public servant with intent to save a person from punishment. After recording the DDR, a copy of the said DDR was sent to the D.A. Legal Ferozepur for obtaining legal opinion. During the posting of the petitioner at the said police station, no such opinion with the orders of the SSP was received by the petitioner. The petitioner alleges that the Officers of the Vigilance Bureau felt embarrassment and exposed on the recording of DDR by the petitioner. The challan had been presented in the Court at Ferozepur, in the above mentioned FIR against the petitioner. The petitioner filed a criminal miscellaneous No. M-11090 of 2000 in this Court for quashing of the FIR. Vide orders dated 14.9.2005, that said FIR was quashed, on the ground of lack of prosecution sanction under Section 197 Cr.P.C. Liberty was granted Crl. Misc. No. M-35680 of 2009 -3- to the State to proceed against him in accordance with law. The prosecution sanction was given by the Principal Secretary to Govt. Punjab, Department of Home Affairs and Justice on 13.5.2009. A supplementary challan under Section 173(8) Cr.P.C. was presented against the petitioner for the offences under Section 217/218 IPC on 15.6.2009 (Annexure P-4). The petitioner has sought quashing of this FIR after presentation of supplementary challan on the following grounds :- 1. The limitation for taking cognizance of the offence under Sections 217, 218 IPC is three years as per Section 468 Cr.P.C. The FIR was registered on 18.12.1998 and the limitation of three years expired on 17.12.2001. On 14.9.2005, the High Court had quashed the FIR and period of three years expires on 13.9.2008. The prosecution sanction was accorded on 13.5.2009. 2. After recording of the DDR a copy of the DDR was dispatched to DA legal for opinion. Necessary action was to be taken on receipt of the legal opinion. No such opinion with the orders of SSP was received by the petitioner. Therefore, the petitioner has not disobeyed any direction of law within the meaning of Section 217 and 218 is involved in the action taken by the petitioner. In the reply, filed by the Dy. Superintendent of Police, Vigilance Bureau, Ferozepur, on the question of limitation a specific Crl. Misc. No. M-35680 of 2009 -4- plea has been taken that the Hon'ble High Court vide its judgment dated 14.9.2005 had given liberty to the State to represent the challan after obtaining necessary permission from the concerned higher authorities. Therefore, the presentation of the supplementary challan is not barred by limitation. After recording DDR No. 29 dated 26.2.1996, it was the duty of the petitioner to adopt due course of law. Even after registration of the DDR, the petitioner was also booked vide FIR No. 71/94 under Section 452, 506, 323 IPC, as per opinion given by the Dy. D.A. Legal, Ferozepur dated 11.4.1996. The petitioner remained as SHO, Police Station Cantt. Ferozepur uptill 10/96. Therefore, the petitioner kept mum after recording of DDR on 26.2.1996 and is guilty of offence under Sections 217 & 218 IPC. The time taken for according sanction under Section 197 Cr.P.C. after the judgment of this Court on 14.9.2005 was procedural. Mr. A.K. Walia, learned counsel for the petitioner has vehemently argued that the petitioner retired in the year 2000 and is 69 years of age on the date of presentation of the supplementary challan. The incident relates back to 26.2.1996. It has been almost 11 years since the petitioner is facing criminal proceedings initiated by the department. There is no likelihood when the challan, which was presented in the year 2009, the trial will conclude within the next few years. As per the facts offence under Sections 217, 218 IPC is not made out against the petitioner. After recording of DDR he had sent it for legal opinion of the DA for further action. The file never came back from the SSP and he was transferred from his place of Crl. Misc. No. M-35680 of 2009 -5- posting in October 1996. The proceedings initiated on the FIR are liable to be quashed on this ground. He has placed reliance on the judgment of Hon'ble the Supreme Court in the case of Seeta Hemchandra Shashittal vs. State of Maharashtra 2001(1) R.C.R. (Criminal) 838. Mr. Walia has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Pankaj Kumar Vs. State of Maharashtra & Ors. 2008(6) R.A.J. 293 to contend that to invoke the right granted by the Constitution of India by Article 21, which confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be 'reasonable, fair and just'; and therefrom flows, without doubt, the right to speedy trial. It was also observed that no procedure which does not ensure a reasonably quick trial can be recorded as' reasonable, fair or just' and it would fall foul of Article 21. Article 21 has been interpreted by a seven-Judge Bench of the Hon'ble Supreme Court in the case of Maneka Gandhi v. Union of India & Anr. (1978)1 SCC 248 in Hussaina Khtoon & Ors. v. Home Secretary, State of Bihar, (1980(1) SCC 81. Mr. Walia finally argued that once the DDR was recorded on 26.2.1996 and the sanction under Section 197 of the Code of Criminal Procedure had not been taken by the Department till 14.9.2009, when this Court has quashed the FIR, the subsequent presentation of challan in 2009 was hit by bar period of limitation under Section 468 of the Code of Criminal Procedure. This is not a Crl. Misc. No. M-35680 of 2009 -6- continuing offence. Once the liberty granted by this Court under Section 197 Cr.P.C. on 14.9.2005, the authorities giving sanction after four years will not condone t he limitation prescribed under Section 468 of the Code of Criminal Procedure. In support of this contention, learned counsel for the petitioner has placed reliance on the judgment of this Court in the case of Nagar Panchayat, Handiaya, District Sangrur vs. Gallu Singh and others 2006(4) R.C.R. (Criminal) 571. The first question to be decided in this case is that whether the sanction given by the competent authority in June 2009 was given in a mechanical manner in view of the direction given by this Court vide judgment dated 14.9.2005. A perusal of the order dated 15.6.2009 shows that in compliance of the High Court order dated 14.9.2005, the Chief Judicial Magistrate, Ferozepur had discharged the petitioner from the case vide order dated 10.2.2006. Subsequently sanction under Section 197 of the Code of Criminal Procedure was granted. Supplementary challan under Section 173(8) of the Code of Criminal Procedure was presented on 15.6.2009. This sanction under Section 197 Cr.P.C. has been passed by the authorities in a mechanical manner in obedience of order dated 14.9.2005 passed by this Court in Crl. Misc. No. M-11090 of 2000. The Hon'ble Supreme Court in a similar matter in the case of Mansukhlal Vithaldas Chauhan vs. State of Gujrat AIR 1997 SC 3400 was seized of a case and has observed as under :- “19. Since the validity of “Sanction” depends on the applicability of mind by the Crl. Misc. No. M-35680 of 2009 -7- sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority “not to sanction” was taken away and it was compelled to act mechanically to sanction the prosecution” In the present case after recording of the DDR in the year 1996, the petitioner had sent the same for legal opinion of the DA and report from the SSP for further orders. It can not be said that the petitioner was required under law to take any action before the report from the SSP was received. Moreover, in October, 1996 he was transferred out of the Police Station Cantt. Ferozepur. Even if there was a note in the police station that an FIR was registered under Section 452, 506, 323 IPC that does not make the petitioner liable for Crl. Misc. No. M-35680 of 2009 -8- offence under Section 217, 218 IPC. The file was received back from DA through the SSP is a routine procedure. Thus, from the contents of the FIR no offence under Section 217, 218 IPC is made out. After the High Court had passed the judgment in 2005 the sanction under Section 197 Cr.P.C. was given in a mechanical manner that and too after four years. The petitioner retired way back in the year 2000 and is at present 69 years of age. The alleged incident of recording of DDR is of 26.2.1996 and the petitioner has been facing criminal proceedings for the last 16 years. If the proceedings initiated in the FIR No. 83 dated 18.12.1998 under Section 217/218 IPC, Police Station Vigilance Bureau Ferozepur Range, Ferozepur to continue against the petitioner at this stage it would amount to an abuse of process of Court. As per the parameters set out in the case of State of Haryana & others Vs. Ch. Bhajan Lal & others AIR 1992 SC 604, this is a fit case in which inherent jurisdiction of 482 Cr.P.C. is to be exercised for quashing the FIR No. 83 dated 18.12.1998 under Section 217/218 IPC, Police Station Vigilance Bureau Ferozepur Range, Ferozepur and subsequent proceedings arising therefrom against the petitioner. So ordered. 10.3.2011 (RITU BAHRI) 'sp' JUDGE