Crl. Rev. No.3397 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Rev. No.3397 of 2010 Date of Decision: 16.02.2011 Rajesh Hastir ....Petitioner Versus State of Punjab ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. J.S. Gill, Advocate for the petitioner. Mr. K.S. Pannu, D.A.G., Punjab for the respondent-State. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. (ORAL) This is a revision against order dated 14.12.2010 passed by the learned Special Judge, Moga dismissing/rejecting the cancellation report submitted by Senior Superintendent of Police, Moga in case FIR No.122 dated 17.11.2009 registered under Sections 409, 221, 120-B IPC and Sections 7, 13(2) of the Prevention of Corruption Act, 1988 registered at Police Station Kot Ise Khan, District Moga. The complaint was filed by the Deputy Superintendent of Police, Gurdarshan Singh against the petitioner. The same was based upon some source report. Accordingly, FIR No.122 dated 17.11.2009 registered under Sections 409, 221, 120-B IPC and Sections 7, 13(2) of the Prevention of Corruption Act, 1988 was registered at Police Station Kot Crl. Rev. No.3397 of 2010 2 Ise Khan, District Moga against the petitioner and three other police employees. The matter was investigated. After investigation, the cancellation report was submitted before the Special Judge, Moga. Deputy Superintendent of Police Gurdarshan Singh appeared before the Court and suffered a statement that he has no objection, if the cancellation report is accepted. Accordingly, the Special Judge, Moga vide order dated 14.12.2010 rejected the cancellation report and observed as under :- “ 12. Keeping in view the totality of the circumstances of the case, this court is of the considered opinion that the cancellation report submitted by the police is not acceptable. Therefore, the same is rejected. However, the sanction under Section 19 of the Act had not been obtained. Therefore, cognizance of this case cannot be taken. In this view of the matter, the case is sent back to SSP, Moga with a direction to complete the investigation and procure the sanction of the competent authority under Section 19 of the Prevention of Corruption Act and to submit report under Section 173 Cr.P.C with law. Record be returned forthwith.” A perusal of the impugned order reveals that the Special Judge, Moga has transgressed his powers while passing the above order. The authority empowered to grant sanction for prosecution of the petitioner has been left with no choice to apply its independent mind to the facts of the case as the impugned order contains a direction for `procuring' the sanction order and, thereafter, a direction has been issued to submit the report under Section 173 Cr.P.C. The said order cannot be sustained in the eyes of law. As per the ratio of the judgment passed by Hon'ble the Supreme Court in the case of Abhinandan Jha vs. Dinesh Mishra vs. Roopchand Lal vs. State of Bihar reported as 1967 (0) AIJEL-SC 409, the formation of the said opinion, by the police, is the final step in the investigation, and that final step is to be taken only by the police and by no Crl. Rev. No.3397 of 2010 3 other authority. As such, the Magistrate may or may not accept the report and take suitable action in accordance with law but cannot infringe upon the jurisdiction of the police by compelling them to change their opinion. Hon'ble the Supreme Court followed the above judgment in the case of M.C. Mehta vs. Union of India reported as 2007(1) RCR (Criminal) 266 in similar circumstances and held that the Magistrate may not accept the report but it is not open to Magistrate to direct the police to file a charge sheet or direct that a sanction be obtained. The same reads as under :- “21. In the case of Abhinandan Jha & Ors. v. Dinesh Mishra, 1967(3) SCR 668 this Court held that when a cognizable offence is reported to the police they may after investigation take action under Section 169 or Section 170 Cr.P.C. If the police thinks that there is no sufficient evidence against the accused, they may, under Section 169 release the accused from custody or, if the police thinks that there is sufficient evidence, they may, under Section 170, forward the accused to a competent Magistrate. In either case the police has to submit a report of the action taken, under Section 173, to the competent Magistrate who considers it judicially under Section 190 and takes the following action : (a) If the report is a charge-sheet under Section 170, it is open to the Magistrate to agree with it and take cognizance of the offence under Section 190(1)(b); or decline to take cognizance. But he cannot call upon the police to submit a report that the accused need not be proceeded against on the ground that there was no sufficient evidence. (b) If the report is of the action taken under Section 169, then the Magistrate may agree with the report and close the proceedings. If he disagrees with the report, he can give directions to the police under Section 156(3) to make a further investigation. If the police, after further investigation submits a charge- Crl. Rev. No.3397 of 2010 4 sheet, the Magistrate may follow the procedure where the charge-sheet under Section 170 is filed; but if the police are still of the opinion that there was no sufficient evidence against the accused, the Magistrate may or may not agree with it. Where he agrees, the case against the accused is closed. Where he disagrees and forms an opinion that the facts mentioned in the report constitute an offence, he can take cognizance under Section 190(1)(c). But the Magistrate cannot direct the police to submit a charge-sheet, because the submission of the report depend entirely upon the opinion formed by the police and not on the opinion of the Magistrate. If the Magistrate disagrees with the report of the police he can take cognizance of the offence under Section 190(1)(a) or (c), but, he cannot compel the police to form a particular opinion on investigation and submit a report according to such opinion. This judgment shows the importance of the opinion to be formed by the officer in charge of the police station. The opinion of the officer in charge of the police station is the basis of the report. Even a competent Magistrate cannot compel the concerned police officer to form a particular opinion. The formation of the opinion of the police on the material collected during the investigation as to whether judicial scrutiny is warranted or not is entirely left to the officer in charge of the police station. There is no provision in the Code empowering a Magistrate to compel the police to form a particular opinion. This Court observed that, although the Magistrate may have certain supervisory powers under the Code, it cannot be said that when the police submits a report that no case has been made out for sending the accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. The formation of the said opinion, by the officer in charge of the police station, has been held to be a final step in the investigation, and that final step has to be taken only by the officer in charge of the police station and by no other authority.” Crl. Rev. No.3397 of 2010 5 The said judgment is also followed by this Court in the case of Mahant Satnam Singh vs. State of Punjab reported as 2007(3) RCR (Criminal) 436. Learned counsel for the State does not dispute the above legal position. Applying the test in the present case, the very impugned order is in the form of direction to obtain sanction and, thereafter, to complete the investigation and submit the final report. The use of the word `procure sanction' and then file final report, leaves no option for the investigating agency except to obey the direction to submit a report in a particular way i.e to submit charge sheet. This is not permissible. In view of the above discussion and in view of the well settled proposition of law, the present petition is allowed and the order dated 14.12.2010 passed by the learned Special Judge, Moga is set aside. However, the matter is remitted back to the said court to pass afresh order keeping in mind the above observations and guidelines laid down in the case of Abhinandan Jha (supra) relied on in the case of M.C. Mehta (supra). (NIRMALJIT KAUR) 16.02.2011 JUDGE gurpreet