STATE THROUGH CBI A --

RAJ KUMAR JAIN

AUGUST 4, 1998

[M.K. MUKHERJEE AND D.P. WADHWA, JJ.] B

Prevention of Corruption Act, I 947 :

S. 6(1)-Government servant-Discharge of from prosecution- Registration of case against by CBI u/s 5(1)(e) and 5(2)-CBI after c investigation submitting report u/s. 173 Cr. P.C. for closure of case-Special Judge declining to accept the report on the ground that CBI was required to place the material collected during investigation before sanctioning authority and it was for that authority to grant or refuse sanction-Held, CBI was under no obligation to place material collected during investigation D before sanctioning authority when they found that no case was made out against the employee-Code of Criminal Procedure, I973-:-S. 173 (2) .

...-

Code of Criminal Procedure, 1973 :

S. 173(2)---CBI submitting report to close the case registered u/s 5(1) E

(e) and 5(2) of Prevention of Corruption Act against a government servant- Special Judge declining to accept the report and directing CBI to conduct further investigation-Held, Special Judge has power to so direct if he finds that opinion formed by Investigating Officer is not based on fall and complete investigation-But, in the instant case Special Judge has not given any F reason, nor does it appear that he has gone through the police report- Normally such matter is required to be remanded to Special Judge, but as the matter is pending for more than JO years and the document show that a thorough investigation has been made and the opinion expressed by CBI that no prima fack case was made out against the respondent is just and proper, the appeal is allowed.

Abhinandan Jha. v. Dinesh Mishra, A.LR. (1968) SC 117, referred to.

J ~~ ..

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 590 of 1992.

H 957

A From the Judgment and Order dated 24.1.92 of the Delhi High Court in Crl.R. No.171 ofl991.

K.N. Rawal, Additional Solicitor General and A.S. Nambiar, (A. K.

Srivastava) for P. Parmeswaran for the Appellant.

B R. Mohan and R. Ayyam Perumal for the Respondent.

The following Order of the Court was delivered :

On May, 11, 1988, the Central Bureau of Investigation (CBI), the appellant before us, registered a case against the respondent, who was then a Junior C Engineer in the New Delhi Municipal corporation, under Section 5(2) read with

Section 5(1) (e) of the Prevention of Corruption Act, 1947 (Act for short) on the allegation that he was in possession of assets disproportionate to his known sources of income. In the investigation that followed, C.B.I. found that the allegations made against the respondent could not be substantiated and, D accordingly, it submitted its report under Section 173(2) Cr.P.C. before the

Special Judge, Delhi praying for closure of the case.

The Special Judge declined to accept the report on the ground that after the investigation was complete, the C.B.I. was required to place the materials collected 'during investigation before the sanctioning authority and it was for E that authority to grant or refuse sanction. According to the Special Judge, it was only with the opinion of the sanctioning authority that the C.B.I. could submit its report under Section 173(2) Cr. P.C. With the above observations the Special Judge issued the following directions:

"It is directed that further investigation should be conducted and in the first instance, the prosecution/Investigating officer must approach the concerned sanctioning authority before coming to the Court to find out if the said authority would grant permission to prosecute the accused or not."

Aggrieved by the above directions C.B.I. moved the High Court by G filing a revision petition which was dismissed with a finding that the directions issued by the Special Judge were proper and legal. Hence this appeal.

Section 6( I) of the Act, which is relevant f2f our present purpose, ,. , reads as under: -

H (I) "No Court shall take cognizance of an offence punishable under

STATE THROUGH CBI v. R.K. JAIN 959

Section 161 (or Section 164) or Section 165 of the Indian Penal Code A or under sub-section (2) [or sub-section (3A)] of Section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction, -

(a) in the case of a person who is employed in connection with the affairs of the (Union) and is not removable from his office save by or B with the sanction of the Central Government ;

(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;

( c) in the case of any other person, of the authority competent to remove him from his office. c

From a plain reading of the above Section it is evidently clear that a Court cannot take cognizance of the offences mentioned therein without sanction of the appropriate authority. In enacting the above Section the D legislature thought of providing a reasonable protection to public servants in the discharge of their official functions so that they may perform their duties and obligations undeterred by vexatious and unnecessary prosecutions.

Viewed in that context, the C.B.J. was under no obligation to place the materials collected during investigation before the sanctioning authority, when E they found that no case was made out against the respondent. To put it differently, if the C.B.J. had found on investigation that a prima facie case was made out against the respondent to place him on trial and accordingly prepared a charge-sheet ( challan) against him, then only the question of obtaining sanction of the authority under Section 6( I) of the Act would have arisen for without that the Court would not be competent to take cognizance of the F chargesheet. It must, therefore, be said that both the special Judge and the High court were patently wrong in observing that the C.B.I. was required to obtain sanction from the prosecuting authority before approaching the Court for accepting the report under Section 173(2) Cr. P.C. for discharge of the respondent.

As regards the direction for further investigation, it is, of course, true that the Special Judge has power to so direct if he finds, on consideration of the police report, that the opinion formed by the Investigating officer seeking discharge of the respondent is not based on full and complete investigation, as observed by this Court in Abhinandan Jha v. Dinesh Mishra, H

A A.LR. (1968) SC 117. Unfortunately, however, in issuing the above direction • the Special Judge has not given any reason whatsoever which prompted him to direct further investigation nor does it appear that he has gone through the police report and .its accompaniments.

After recording the above finding the usual order which we are required B to make is to remand the matter to the special Judge with a direction to look into the report under Section 173(2) Cr. P.C. and the documents referred to therein to deci4e whether further investigation should be ordered or not. But considering tq1e facts, that since the case was registered more than 10 years have elap~<lAmd that such a direction would further delay the matter we have C for ourselves looked into those documents and found that a thorough investigation has been made and the opinion expressed by the C.B.I. that no prima facie case was made out against the respondent is just and proper.

On the conclusions as above, we allow this appeal and set aside the impugned orders of the Special Judge and that of the High Court.

R.P.

Appeal allowed.