IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 2356 of 2008 (O&M) Date of Decision: February 02, 2011 Gurdev Singh …Petitioner Versus State of Punjab and another. … Respondents CORAM: HON’BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be Allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. A.P.S. Deol, Senior Advocate with Mr. Davinder Bir Singh, Advocate, for the petitioner. Mr. Jaspreet Singh, AAG, Punjab, for the respondent-State. Mr. M.S. Joshi, Advocate, for respondent No.2. Alok Singh, J. (Oral) CRR No.2356 of 2008 Accused-revisionist is assailing the order dated 29.09.2008 passed by learned Special Judge, Ferozepur, thereby disagreeing with the cancellation report submitted by the police and taking cognizance against the accused under Section 7, 13(2) of the Prevention of Corruption Act (hereinafter referred to as the Act). The brief facts of the present case are that Mohinder Singh-complainant has lodged an F.I.R. with the Deputy Superintendent of Police, Vigilance Bureau, Ferozepur, which reads as under:- “Stated that I am resident of Village Chack Gurditiwala and do agriculture. That I had to get a limit made from the Bank for which I needed a copy of Jamabandi of my land. I approached the Patwari Halqa Gurdev Singh 2/3 times, but each time he dilly dallied the matter. Yesterday, I again met him at village Ilmewala and asked for the copy of the jamabandi. He told me that by making rounds like this he will not get the copy of the jamabandi and in case he really wanted the copy he will have to grease his palm. He made a demand of Rs.1000/- for this purpose. On my pursuing he agreed to accept a bribe of Rs.700/-, but I made an excuse for not having the cash ready with him but promised to pay the same on the next 2 CRR No.2356 of 2008 day. He agreed to accept a sum of Rs.700/- from him in preparing the copy of jamabandi. But I did not wish to pay the bribe money and therefore made a false promise with him and returned to my house. ON return my acquaintances Gurmail Chand son of Jarnail Ram resident of Village Hahmanwala at my village to whom I narrated the whole story. He also dissuaded me from paying any bribe money to the patwari and to get him trapped with the Vigilance Department. I along with Gurmail Chand have come present before you and produced a currency of Rs.700/- which was demanded by Gurdev Singh Patwari Halqa Ilmewala for preparing a copy of jamabandi, since I do not wish to pay any bribe money, legal action be taken against Patwari. My statement has been recorded correctly.” Investigation was carried out and material was placed before the Collector, Ferozepur, to grant sanction against the accused for his prosecution under Section 7, 13 (2) of the Act as required by Section 19 of the Act. Learned Collector vide order dated 28.05.2007 has declined to grant any sanction against the accused-revisionist to prosecute him. Cancellation report dated 24.01.2008 was submitted before the Special Judge, Ferozepur. Learned Special Judge, 3 CRR No.2356 of 2008 Ferozepur, vide impugned order dated 29.09.2008 has decided to take cognizance against the accused for an offence under Section 7, 13(2) of the Act. Order of the learned Special Judge dated 29.09.2008 is under challenge before this Court. This Court on 27.01.2010 has passed the following order:- “Learned counsel for respondent No.2 (complainant) states that cancellation report was filed as the sanction to prosecute was not given. Learned counsel further contends that a petition has been made to the Deputy Commissioner, Ferozepur to reconsider the issue of grant of sanction. The sanction to prosecute has been denied only on the grounds taken by the accused. Learned counsel further states that accused is not required to be heard at the stage of sanction. Adjourned to 30.3.2010. Deputy Commissioner, Ferozepur is directed to consider the issue and take a final decision within three weeks from today.” Again matter was considered by the Collector in the light of the order dated 27.01.2010 passed by this Court 4 CRR No.2356 of 2008 and again Collector has refused to grant sanction to prosecute the petitioner-accused. I have heard learned counsel for the parties and perused the record. As per Section 4 of the Act, Special Judges have jurisdiction to try the offences punishable under this Act and as per Section 5 of the Act, a Special Judge shall follow the procedure prescribed by the Code of Criminal Procedure for the trial of warrant cases by the Magistrates. Thus, word used “Magistrate” in Section 190 of the Code of Criminal Procedure shall also include a Special Judge under the provisions of the Prevention of Corruption Act. There is no doubt that under Section 190 (1)(b) of the Code of Criminal Procedure, learned Magistrate or Special Judge, as the case may be, has jurisdiction to take cognizance on the police report on the basis of material / facts collected by the police even if police has opined for the closure of the case. If Court is not agreeing with the opinion of the police to close the case, Court has to opine, discussing the facts and material collected by the police during the investigation, that there is sufficient material justifying prosecution of the accused and that accused is involved in the commission of a crime. 5 CRR No.2356 of 2008 Hon’ble Apex Court in the matter of Rupan Deol Bajaj (Mrs.) vs. Kanwar Pal Singh Gill reported in (1995) 6 S.C.C. 194 has held as under:- “In Abhinandan Jha vs. Dinesh Mishra (supra) the question arose whether a Magistrate to whom a report under Section 173 (1) Cr. P.C. had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet on his disagreeing with that report. In answering the question this Court first observed that the use of the words `may take cognizance of any offence' in sub-section (1) of Section 190 Cr.P.C. imports the exercise of `judicial discretion' and the Magistrate who receives the report under Section 173 Cr.P.C. will have to consider the said report and judicially take a decision whether or not to take cognizance of the offence. The Court then held, in answering the question posed before it, that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused he might accept the report and close the proceedings. If he 6 CRR No.2356 of 2008 came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3). It was further held that if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance thereof, notwithstanding contrary opinion of the police expressed in the report.” Thus, it is clear from the above decision of the Apex Court that the Magistrate can take cognizance under Section 190(1)(b) even on submission of final report by the police i.e. upon a police report and he is not bound to adopt the procedure of complaint as required for taking cognizance under Section 190(1)(b) of the Code. In the present case, learned Special Judge has passed the following order:- “Heard. The complainant has appeared in the court and disagreed with the cancellation report submitted by the police. I have also gone through the file. There is sufficient material against the accused to proceed against him under Section 7, 13 (2) of Prevention of Corruption Act. So the request of the police is declined. Therefore, notice to the accused be issued for 4.11.08.” 7 CRR No.2356 of 2008 From the perusal of the order, it is, thus, clear that learned Special Judge has not disclosed what is the sufficient material or facts collected by the police forming opinion that the accused is involved in the alleged offence under Section 7, 13(2) of the Act. A cognizance of the offence shall be taken by the Court only when Court finds prima facie sufficient material against the accused. Although, detailed discussion is not required before the forming the opinion to take cognizance, however, summary discussion to form the basis of opinion is expected. Observation “there is sufficient material” without summary discussion thereof is not proper. Undisputedly, Collector has declined to grant sanction vide order dated 28.05.2007 as required under Section 19 of the Act to prosecute the petitioner – accused for an offence under Section 7, 13(2) of the Act. Undisputedly, in the light of the interim order passed by this Court dated 27.01.2010, again Collector has applied his mind and again has declined to grant sanction as required under Section 19 of the Act vide order dated 22.02.2010. For the reasons recorded herein above, order impugned cannot be sustained in the eyes of law. Present petition is allowed, order impugned is set aside. February 02, 2011 ( Alok Singh ) vkd Judge 8