(1). The cases, deal with here, have chequered history as there have been several rounds of litigation before the Hon'ble Gujarat High Court and the Hon'ble Apex Court in different forms at different stages and also before this court in bail matters.
(2). The instant criminal miscellaneous applications have been filed for quashing the complaint (C.R. No. 403/1996) registered at the Police Station, Kotwali, Pali, as also the further investigation pertaining to offences under Sections 120B, 195, 196, 342, 347, 357, 368, 388, 482 I.P.C. and Sections 17, 58(1)(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the "N.D.P.S. Act").
(3). The facts and circumstances giving rise to these cases are that on 17.10.1996, one Mr. Sumer Singh Rajpurohit, a Practising Advocate filed a complaint in the Court of the Chief Judicial Magistrate, Pali, alleging that shop No. 6 in Vardhaman Market, Pali, owned by Smt. Amri Bai w/o Shri Jayant Raj had been taken on rent by one Mohan Lal in partnership of Narsingh Rajpurohit, brother of the complainant, for commercial purpose in the name and style of "Deepak Textiles" and part of the same was also used by the complainant as Office for his legal practice. The marriage of one Muli Devi, daughter of Rajmal, brother of accused Phootar Mal and uncle and applicant Raman Lal, had been arranged with Mr. Jayant Raj but she died before marriage could take place. Mr. Jayant Raj subsequently got married with landlady Smt. Amri Bai. The family of applicant Raman Lal maintained very good and cordial relationship with the family of Mr. Jayant Raj and started treating Amri Bai in place of Muli Devi. Applicant Raman Lal attended the marriage her son on 27.4.96 alongwith other family members. Accused No. 1 Phootar Mal, uncle of applicant Raman Lal, had been Power of Attorney-holder in respect of the said shop and a civil suit was pending in which the plaint had been signed and verified by him. Phootar Mal realised that so long complainant was with the tenants, it would be difficult to get their eviction from the shop. Accused persons conspired to get the said shop vacated and in furtherance thereof, they filed C.R. No. 216/1996 dated 30.4.96 under the provisions of Section 17 of the NAPS Act, alleging that complainant Sumer Singh stayed in Room No. 305 in Hotel Lajwanti, Palanpur on 29.4.96; signed the hotel register and his address was shown as resident of Vardhaman Market, Pali, and opium was recovered from the said room after receiving the phone call from an informer from Pali. However, before the recovery could be made, complainant had left the hotel leaving behind the opium. In the night intervening 2/3 May, 1996, the other accused, viz. Mr. I.B. Vyas and Mr. Yagyanik, alongwith other police officials, came to the complainant's house at about mid night and arrested him. He was handcuffed, man- handled gagged, and taken away forcibly in a jeep bearing fake registration number. Mr. Goma Ram, P.S.I., Kotwali, Police Station, Pali, who was on patrolling duty, intercepted the vehicle of Gujarat Police heading towards Palanpur and brought them to the Police Station, Kotwali, Pali, wherein Gujarat Police Officials disclosed their identity and informed that the complainant was wanted in a case under the N.D.P.S. Act. After giving arrest memo in connection with a case under the N.D.P.S. Act, they took away the complainant. By that time, family members and fellow Advocates also reached the Kotwali and some of them also went to Palanpur alongwith them. In Palanpur, he was produced before Mr. Sanjeev R. Bhatt, the then Distt. Superintendent of Police, Palanpur, co-accused, who enquired from the complainant about the said shop and asked him to vacate the same immediately otherwise he would be involved in a case of recovery of four kilograms of opium. The involvement of the applicant-Raman Lal, who at the relevant time, was the Additional Judge of the Gujarat High Court and is, now, Principal Judge of City Civil & Sessions Court at Ahmedabad, was also shown alleging that being interested in getting the shop vacated, he had hatched the conspiracy and was having telephonic talks with co-accused Phootar Mal and Mr. Sanjeev R. Bhatt and some of his phone-calls had also been taped. One Narain Singh Kharabera played a role of mediator and after taking all care and precautions, an agreement was signed between co-accused Phootar Mal and Mohan Lal - the original tenant - partner of the complainant's brother for vacating the shop and an understanding was given that on releasing the said shop, complainant would be released and the case against him under the NDPS Act would be dropped. Raghunath Singh, real brother of the complainant also talked to applicant Raman Lal and the latter assured him that the complainant would be released and a report under Section 169 Cr.P.C. would be submitted after vacating the said shop. For reaching the agreement in writing, complainant's real brother Raghunath Singh purchased the stamp paper for Rs. 5/- and co-accused Phootar Mal got the agreement typed and it was got signed by Mohan Lal through Raghunath Singh on 5.5.96. The report under Section 169 Cr.P.C. was submitted on 6.5.96 itself, the same was accepted by the learned Special Judge, Palanpur on 14.5.1996 and the complain-ant was released. Keys of the said shop were handed over to co-accused Phootar Mal on 15.5.96. In sum and substance, according to the complainant, a conspiracy was hetched by the accused persons to get the shop vacated and in order to execute the said plan, the complainant was falsely enropped in a case under the N.D.P.S. Act, arrested, humiliated and on getting the shop vacated, report under Section 169 Cr.P.C. was filed and he was discharged.
(4). Alongwith the complaint, a large number of documents and two audio-cassettes were also submitted. The Chief Judicial Magistrate, Pali passed order dated 16.10.1996 u.Sec. 156(3) Cr.P.C. for registration of a case under Police Station, Kotwali, with direction that investigation be made by the officer not below the rank of Director General of Police. Inspite of said direction, the case was not registered as a revision had been filed by the State of Rajasthan on the ground that the Magistrate cannot pass an order to investigate an offence whatsoever against a Judge of the High Court unless the approval is accorded by the Hon'ble Chief Justice of India. The said revision was subsequently dismissed by the learned Sessions Judge, Pali, vide order dated 15.11.96 with the modification that investigation may be carried out by an officer below the rank of Director General of Police. The case was registered and investigation ensued.
(5). District Bar Association, Pali, by way of Public Interest Litigation, filed Writ Petition No. 448 of 1997 before the Hon'ble Supreme Court seeking action against applicant Raman Lal, pointing out his involvement. However, the said petition was dismissed as withdrawn vide order dated 11.9.1997 with the liberty to approach the Hon'ble Chief Justice of India on administrative side, the Bar Association submitted a representation to the Hon'ble Chief Justice of India on the same day, i.e. on 11.9.1997 requesting His Lordship not to confirm Mr. Raman Lal as Judge of the High Court. State of Gujarat and co-accused I.B. Vyas, Police Inspector, filed Miscellaneous Application Nos. 1302/1997 and 1309/1997 before the Gujarat High Court for quashing the order passed by the Chief Judicial Magistrate, Pali, for investigation. The said applications were rejected by the learned Single Judge vide common judgment dated 4.12.1997.
(6). The Superintendent of Police (C.I.D.), Jaipur, sent a questionnaire through the Registrar, Gujarat High Court, to applicant Raman Lal for filling it up and as the applicant did not fill it up and returned the same, rather asked for extension of time, he was informed through the Registrar of the Gujarat High Court to remain present on 30.1.98 at Pali. Applicant was further informed by the Registrar that the Hon'ble Chief Justice of Gujarat High Court had granted permission to the Investigating Officer to interrogate the said applicant at the place and time convenient to the latter. The Investigating Officer further sent a letter to the said applicant through the Registrar of Gujarat High Court to remain present before the Chief Judicial Magistrate, Pali, at the time of filing the the charge-sheet on 15.1.98. Instead of appearing before the Chief Judicial Magistrate, Pali, applicant Raman Lal and co-accused Sanjeev R. Bhatt filed Special Criminal Applications Nos. 6 and 24 of 1998 before the Gujarat High Court challenging the action of the Authorities/courts concerned on various grounds including the competence of the Criminal Court at Pali to take cognizance, and the Hon'ble Gujarat High Court, while entertaining their applications, granted interim relief. However, the said applications were rejected by the learned Single Judge, vide common judgment and order dated 9.7.98, on the ground that Gujarat High Court had no territorial jurisdiction to entertain the same. Being aggrieved and dissatisfied, applicants therein preferred L.P.A. Nos. 906 and 930/1998 against the said judgment and order. The appeals were also dismissed vide common judgment and order dated 5.10.98. The said applicants filed Special Leave Petition (Crl.) Nos. 4309 and 4375 of 1998 being aggrieved and dissatisfied of the Division Bench judgment of Gujarat High Court dated 5.10.98 and both criminal petitions stood rejected by the Hon'ble Supreme Court vide order dated 15.1.99 in limine.
(7). Applicant Raman Lal filed Special Criminal Application against the judgment and order of the learned Single Judge dated 4.12.1997, contending that he had not been a party in the said case, even though certain observations/remarks had been made against him, which would adversely affect him. The Division Bench passed an order to the extent that observations made against the said applicant in the judgment dated 4.12.1997 should not be used against him and the case is pending before the Gujarat High Court for final decision.
(8). The Rajasthan Police filed a challan for various offences including the offence under Sections 17 and 58(1) and 2 of the N.D.P.S. Act and provisions of the Indian Penal Code against co-accused Phootar Mal before the Special Judge (N.D.P.S.), Jodhpur and the said case stood transferred to the Court of the Special Judge, (N.D.P.S.), Delhi, by virtue of the order dated 3.11.98 passed by the Hon'ble Supreme Court in T.P. (Crl.) No. 38/1998. The investigation is being carried out further in pursuance of the order passed under Section 173(8) Cr.P.C. Applicant Raman Lal had also filed T.P. (Crl.) No. 98/1998, alongwith co-accused Sanjeev R. Bhatt, before the Hon'ble Supreme Court seeking transfer of the case against them out-side Rajasthan. However, the Hon'ble Supreme Court passed an order to the effect that as no charge-sheet had been submitted against them, no order could be passed. However, in case charge sheet is filed before the Court, applicants may renew their prayer for getting the same tried alongwith Sessions Case No. 19/1997, i.e. the subject matter of T.P. (Crl.) No. 38/1998.
(9). Applicant Raman Lal filed Special Criminal Application No. 1079 of 1998 on 20.11.98 before the Gujarat High Court challenging the validity of the Gujarat High Court Rules not providing Letters Patent Appeal in criminal cases being discriminatory as the same was limited in civil cases only, and therein he also prayed for transfer of investigation to the Central Bureau of Investigation. Interim relief was granted in favour of the said applicant on concession made by the counsel for the State of Rajasthan and the same is continuing till today, as the same has been extended till further orders and the matter is still pending for final disposal before the Hon'ble Gujarat High Court. The applicants preferred these applications before this Court as they could not succeed in getting any relief from any other Court.
(10). It may also be pertinent to mention here that challenging the pendency of these cases, one co-accused I.B. Vyas filed Special Criminal Application No. 680 of 1999 before the Gujarat High Court for transferring the investigation to C.B.I. and vide order dated 13.8.99, an interim order staying all further proceedings in connection with C.R. 403/96 of Police Station, Kotwali, Pali, has been passed and the interim order is still in force. Co-accused Phootar Mal's bail application was rejected by this Court vide order dated 10.7.97 in connection with the same case, against which the Hon'ble Supreme Court also dismissed the S.L.P. (Crl.) No. 2601/97) in limine vide order dated 12.9.97 and he is in jail for more than two years.
(11). In addition to the aforesaid legal proceedings, there have also been following petitions on behalf of the police officials involved in this case before the Gujarat High Court:-
(a) Crl. Misc. Appl. No. 5050/97, Sanjeev Bhatt vs. State of Gujarat & Ors., disposed on 19.9.97
(b) Crl. Misc. Appl. No. 6256/97, Sanjeev Bhatt vs. State of Gujarat & Ors., disposed on 12.11.97.
(c) Crl. Misc. Appl. No. 7034/97, Sanjeev Bhatt vs. State of Gujarat & Ors., disposed on 8.12.97.
(d) Spl. Appl. No. 926/98, Pravin Bhai vs. State of Gujarat & Ors., dismissed as withdrawn on 21.11.98.
(e) Spl. Crl. Appl. No. 988/98, Rajendra Yagnik vs. State of Gujarat & Ors., dismissed as withdrawn on 21.11.98.
(f) Spl. Crl. Appl. No. 982/98, Sanjeev Bhatt vs. State of Gujarat & Ors., dismissed as withdrawn on 10.12.98.
(g) L.P.A. No. 102/98, Sanjeev R. Bhatt vs. State of Gujarat & Ors. -Pending.
(12). The case is required to be considered in the aforesaid background.
(A) Quashing of proceedings;
(13). Legal maxim "Quando Aliquid Mandatur, Mandatur Et Omne Per Quod Per Venitur Ad Illud"- means if anything is commanded, every thing by which it can be accomplished is also commanded. But the inherent power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability of genuineness or otherwise of allegations made in the F.I.R or complaint and the extraordinary and inherent powers of Court do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice. The same can be resorted to for correcting some grave errors that might be committed by the subordinate courts or where the complainant, at the instance of somebody else wants to settle his score with other party and uses deliberately the machinery of the Court for oblique purpose and the party is likely to be subjected to unnecessary harassment for facing criminal proceedings or where the Court is satisfied that in case the proceedings are not quashed, there will be gross miscarriage of justice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can "soft- pedal the course of justice" at a crucial stage of investigation/proceedings. (Vide Emperor vs. Khwaja Nazir Ahmed (1); State of Karnataka vs. L. Muniswamy (2); Kurukshetra University vs. State of Haryana (3); State of West Bengal vs. Swapan Kumar Guha (4); Madhavrao Jiwaji Rao Scindia vs. Sambhajirao Chandrojirao Angre & Ors. (5); Janta Dal vs. U.S. Chowdhary & Ors. (6); Union of India vs. W.N. Chadha (7); Rupan Deol Bajaj & Anr. vs. Kanwar Pal Singh Gill & Anr. (8); Musthaq Ahmed vs. Mohammed Habibur Rahman Faizi & Ors. (9); State of Bihar vs. Rajendra Agrawal (10); Ashim Kumar Roy vs. Bipinbhai Vadilal Mehta (11); M/s. Pepsi Food Ltd. & Anr. vs. Special Judicial Magistrate & Ors. (12); M. Krishna vs. State of Karnataka (13); Rakesh Ranjan Gupta vs. State of U.P. & Ors. (14); State of Kerala vs. O.C. Kuttan (15); Arun Shanker Shukla vs. State of U.P. & Ors. (16); Satvinder Kaur vs. State (Govt. of N.C.T. of Delhi) & Anr. (17); Kanti Bhadra Shah & Anr. vs. State of West Bengal (18) and G. Sagar Suri & Anr. vs. State of U.P. & Ors. (19).
(14). In State of U.P. vs. O.P. Sharma (20), the Hon'ble Supreme Court has indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 of the Code or under Article 226 or 227 of the Constitution of India, as the case may be, and allow the law to take its own course. Similar view had been taken in Pratibha Rani vs. Suraj Kumar & Anr. (21).
(15). In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi (22), the Hon'ble Supreme Court held as under:
"(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guide-lines to indicate contingencies where the High Court can quash proceedings."
(16). In L.V. Jadhav vs. Shankarrao Abasaheb Pawar (23), the Apex Court held that Courts' power is limited only to examine that the process of law should not be misused to harass a citizen and for that purpose, the High Court has no authority or jurisdiction to go into the matter or examine the correctness of allegations unless the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion and that there is sufficient ground for proceeding against the accused but the Court, at that stage, cannot go into the truth or falsity of the allegations.
(17). Similar view has been reiterated in The Nagpur Steel and Alloys Pvt. Ltd. vs. P. Radhakrishna (24).
(18). In Trisuns Chemical Industry vs. Rajesh Agarwal & Ors. (25), the Supreme Court placed reliance upon its earlier judgment in Rajesh Bajaj vs. State of N.C.T. of Delhi (26) and observed that the inherent power of the High Court should be limited to very extreme exceptions.
(19). In M/s. Medchl Chemicals & Pharma Pvt. Ltd. vs. M/s. Biological E. Ltd. & Ors. (27), the Apex Court placed reliance upon its earlier judgments, including Dr. Sharma's Nursing Home vs. Delhi Administration (28), and held that a criminal prosecution can be short-circuited in rarest of rare cases, and even in a case of breach of contract, not only civil remedy is attracted but a person can be held responsible for criminal prosecution and under no circumstance 'civic profile' can out-way the 'criminal out fit."
(20). In State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors. (29), the Hon'ble Supreme Court laid down the guide-lines for exercising the inherent power as under:
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specified provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
(21). Similar points have been formulated by the Apex Court in State of West Bengal vs. Mohammed Khalid (30).
(22). In the instant case, it has been contended that Clauses 5 and 6 are relevant for our purpose, which speak about absurdity, express legal bar in the Code or the concerned Act either against the institution or continuation of proceedings or providing efficacious redressal. It has been submitted that though after the incident, there had been agitations and various representations had been made to the Constitutional/Statutory Authorities including the National Human Rights, the President of India, Hon'ble the Chief Justice of India, Hon'ble the Chief Justice of High Court of Judicature for Rajasthan, Hon'ble the Chief Minister of Rajasthan, regarding the same incident but no action had ever been taken by any of them. Had there been some truth in the allegations, atleast some of those Authorities could have acted and taken note of the grievance of the complainant. On the other hand, Mr. Rathore has submitted that on the representations made to the said Authorities, certain action had been taken and applicant Raman Lal, the then Judge of the High Court, had been transferred from Gujarat High Court and subsequently was not confirmed as a Judge, of the High Court.
(23). Be that as it may, this can certainly not be the test to examine the absurdity of the complaint. The Hon'ble Supreme Court has consistently observed that complaint should not be so absurd and improbable that no prudent person can think that on such charges, a person should be prosecuted. Thus, the criteria is not whether on representations the concerned Authorities had acted upon or not, it is the absurdity and improbability of the allegations which require examination. The case of absurdity may be if a complaint is filed by "A" that while he was sitting with his family members out side his house, his neighbour, who had rivalary with him and at present residing in United States of America, had come by aeroplane, thrown bomb on them and run away. Such an instance can be termed as an absurd and improbable.
(24). It has vehemently been submitted on behalf of the applicants that impugned order passed by the Chief Judicial Magistrate, Pali under Section 156(3) Cr.P.C. is in respect of the complaint under Sections 120B, 195, 196, 242, 347, 357, 368, 388, 458 and 482 I.P.C. read with sections 17, 58(1) and 58(2) of the N.D.P.S. Act. Section 36A of the said Act provides that notwithstanding anything contained in the Code of Criminal Procedure, all offences under the N.D.P.S. Act shall be triable only by the Special Court constituted for the area in which the offence has been committed. It is only in a case where Special Court has not been constituted, the Sessions Judge shall have the power of trial. Section 58(1)(b) and (c) provide for a redressal and protection of an innocent person for prosecuting him under the N.D.P.S. Act vexatiously to wreck vengeance and make the same punishable if an Authority concerned involves a person falsely in an offence under the provisions of the N.D.P.S. Act. Section 17 deals with punishment for contravention in relation to prepared opium. Sections 42 and 43 of the Act empowers a person above peon in Government Department and Sepoy in the Police Force to search, seize and arrest without warrant or authorisation. Such person shall be forwarded to the Magistrate, Judicial or Executive, and the said Magistrate shall have power of detention for a specific period provided under the Act. The Special Court alone has been conferred competence to deal with the accused under Section 167 Cr.P.C. Clause (d) to Section 3C-A empowers the Special Court to take cognizance either on police report under Section 173 Cr.P.C. or upon the complaint made by an officer of the Central Government or State Government authorised in this behalf. Therefore, there is a complete bar for lodging a complaint/information by any citizen as under Section 154 Cr.P.C. an F.I.R. can be lodged. More so, no Court other than the Special Court has competence to take cognizance.
(25). The submission is that as the allegations against applicant Raman Lal and police officials had been for hetching a conspiracy to falsely involve complainant Sumer Singh in a case under the N.D.P.S. Act, the provisions of Section 58 are attracted. The complaint itself has been under the provisions of Sections 17, 58(1) and 2 of the N.D.P.S. Act read with other provisions of the Indian Penal Code. The complaint spells out an offence of involving the complainant falsely at Palanpur (Gujarat) in a case under the N.D.P.S. Act. Thus, the Court at Pali did not have competence to take cognizance and, therefore, the impugned order dated 16.10.96 is a nullity for want of jurisdiction. In order to fortify the submission, judgment of the Hon'ble Supreme Court in Raj Kumar Karwal vs. Union of India (31) has been relied upon.
(26). Reliance has also been placed on the judgment in Supreme Court Legal Aid Committee Representing Under-trial Prisoners vs. Union of India & Ors. (32), wherein the Hon'ble Apex Court considered the scope of Section 36 and has categorically held that after commencement of the N.D.P.S. Act, the cases pending before the Court of Sessions in relation whereto it has not taken cognizance, would have to be transferred to the Special Court on its constitution and once the Special Court is constituted under Section 36, that Court alone would have jurisdiction to try the offences under the N.D.P.S. Act, save and except those in relation whereto the Sessions Court had already taken cognizance. Section 36 provides for constitution of Special Courts and Section 36-A(1)(a) provides that notwithstanding anything contained in the Code, all offences under the Act shall be triable only by the Special Court constituted for an area in which the offence has been committed. On a congest reading of these two provisions, it becomes clear beyond any manner of doubt that the Special Court alone will have jurisdiction and all other courts exercising jurisdiction prior to constitution of the Special Courts will cease to have jurisdiction. It is clear from this provision that a Special Court may take cognizance of an offence without the accused being committed to it for trial. Section 36C makes the provisions of the Code applicable to proceedings before the Special Court save as otherwise provided in the Act. The non-obstante clause in this provision makes it clear that until a Special Court is constituted under Section 36, the Court of Sessions shall try any offence committed on or after the commencement of the amending Act and no other Court, including the Magistrate's Court will have jurisdiction to try the offences under the Act. The Court further observed as under:
"So, from the date of its introduction of the Statute Book, the Magisterial Courts ceased to have jurisdiction or power to try any offence committed under the Act even if the punishment prescribed is three years or less since only the Court of Sessions is empowered to deal with such cases..... In the Act, a limited power of detention has been given to the Magistrate, maximum for a period of fifteen days in a case of Judicial Magistrate and of the period of seven days in case of Executive Magistrate. But they have not been given any power of enlarging a detenu on bail or granting remand or extending the period of detention, as for any or all of these purposes the application of the detenue has to be referred to the Special Court. In a case like the instant, where the jurisdiction of the Magistrate's Court has been ousted subject by the statutory provisions, the Magisterial Court cannot proceed and only the Special Judge is empowered even for ordering of investigation under Section 156 Cr.P.C. and any order passed by the Magistrate is improper."
(27). Therefore, it is submitted that it is the Special Court alone which has the competence in all mailers pre-trial as well as during trial. The provisions of Section 36A ousts the jurisdiction of the Sessions Court and the Court of the Magistrate would cease to have jurisdiction after the constitution of Special Court for the reason that Sub-section (1) of Section 3G-A, by virtue of non-obstante clause, would over- ride the provisions of the Code of Criminal Procedure.
(28). Before proceeding further, it may be pertinent to clarify that a criminal trial commences with framing of the charges and prior to it, the proceedings can simply be termed as inquiry/investigation. (Vide Emperor vs. Khwaja Nazir Ahmed (supra); Ratilal Bhanji Mithani vs. State of Maharashtra & Ors. (33); V.C. Shukla vs. State (34); Union of India vs. Maj. Gen. Madan Lal Yadav (35) and Comman Cause, a Registered Society vs. Union of India & Ors. (36).
(29). In A.R. Antuley vs. Ramdas Srinivas Nayak (37), the Constitution Bench of the Hon'ble Supreme Court held that the Special Judge alone is competent to take cognizance of the offences specified in the Prevention of Corruption Act. A similar view has been reiterated after following the said judgment in A.R. Antuley's case in State of Kerala vs. Navab Rajendran & Ors. (38), by the Kerala High Court, wherein it has been observed as under:
"Legal position being such, a Magistrate has no power to take cognizance of the offences which a Special Judge is specified to try under the Act. This, in turn would lead to the conclusion that a Magistrate cannot pass an order under Section 156(3) of the Code in respect of any offence which a Special Judge alone is competent to try. Hence the order impugned cannot be sustained."
(30). Similar view has been reiterated by the Gujarat High Court in Mangli Prasad vs. Addl. Sessions Judge (39), while dealing with a case under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
(31). In Hareendran vs. Sarada (40), the Kerala High Court held that a Special Court, constituted under the Special Act, can take cognizance of the offence even in a case where offences under the Penal Code are also included without committal proceedings. The Court observed as under:
"Section 2(g) of the Code of Criminal Procedure defines 'inquiry'. 'Inquiry' means every inquiry other than a trial, conducted under the Code by a Magistrate or Court. Merely on the basis of the definition of 'inquiry' under the Cr.P.C., it would not be possible to hold that the inquiry under the Act has to commence in the Court of Magistrate. Section 201 of the Cr.P.C. provides for procedure of Magistrate not competent to take cognizance of the case. If a complaint is made to the Magistrate who is not competent to take cognizance of the offence, he shall, if the complaint is in writing, return it for presentation to the proper court with an endorsement to that effect. If the complaint is not in writing, direct the complainant to move to the proper court."
(32). In Devarapalli Lakshminarayana Reddy & Ors. vs. V. Narayana Reddy & Ors. (41), the Hon'ble Supreme Court, after placing reliance upon its earlier judgment in Nirmaljeet Singh Hoon vs. State of West Bengal (42), held as under:
"The distinction between a police investigation ordered under Section 156(3) and the one directed under Section 202 has already been mentioned between the new Code; but a rider has been clamped by the first proviso to Section 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Sessions has been committed, he shall not make any direction for investigation."
(33). In Union of India & Anr. vs. B.N. Ananthapadmanabhiah (43), the Hon'ble Supreme Court has held as under:
"A Magistrate does not exercise jurisdiction throughout the length and breadth of India for purposes of Code of Criminal Procedure or of Prevention of Corruption Act. The Code of Criminal Procedure defines the territorial jurisdiction of Magistrates. It will not be in consonance with the jurisdiction and structure of Courts of Magistrates to allow an order of investigation to be made by a Magistrate of Delhi for investigation of a case in the State of Assam. The reason is that a Magistrate orders investigation in a case which he has power to inquire into or try."
(34). The provisions of the N.D.P.S. Act inhibits the Authority other than the Special Court even to take action under Section 167 Cr.P.C. as the Act empowers the Executive Magistrate to pass order of detention for seven days and the Judicial Magistrate for 14 days. It has no other competence either to enlarge the detenu on bail or discharge him or extend the period of detention or to pass any order under Section 169 Cr.P.C.
(35). By virtue of the provisions of Section 4 of the Code, all the offences under the Indian Penal Code shall be investigated, inquired into and tried and otherwise dealt with according to the provisions of the Code. However, Sub-section (2) of Section 4 provides that so far as any offence under any other law is concerned, the same shall be investigated, inquired into, tried or otherwise dealt with according to the same provisions, but subject to any enactment for the time-being in force, regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. It means, the offence under any other Act can be dealt with by the procedure prescribed under the Code in case there is no procedure prescribed under the said Act.
(36). In Directorate of Enforcement vs. Deepak Mahajan (44), the Hon'ble Supreme Court has held as under:
"For over-mentioned reasons, we hold that the operation of Section 4(2) of the Code is straightway attracted to the area of investigation, inquiry and trial of the offences under the Special Laws..... and consequently, Section 167 of the Code can be made applicable during investigation or inquiry of an offence under the Special Acts, also inasmuch as there is no specific provision contrary to that excluding the operation of Section 167."
(37). There are various Acts like the Terrorist and Disruptive Activities (Prevention) Act, 1987; Essential Commodities Act, 1955; Prevention of Corruption Act, 1988; N.D.P.S. Act, and Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989. All these Acts fall under the category of "Special Acts" and some of the provisions contained therein provide for a Special Forum and Special Procedure. In case the special procedure or special forum is not provided, the provisions of the Cr.P.C. would be attracted. A Full Bench of this Court in Bhura Lal & Ors. vs. State of Rajasthan & Ors. (45), has considered the provisions of the Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act and observed as under:
"The S.C./S.T. Act does not provide for procedure to try the offences under the Act. It merely creates a special forum without prescribing a special procedure for dealing with or trying such cases. There are analogous enactments, in which not only the special forum but special procedure also has been specifically prescribed."
(38). In Ram Swaroop vs. State of Rajasthan (46), a Division Bench of this Court has held that even in a case under N.D.P.S. Act, if a report under Section 173(2) Cr.P.C. is filed before the Magistrate, he can take cognizance of the offence under Section 190(b) Cr.P.C.
(39). In Alimuddin vs. State of Rajasthan (47), a Division Bench of this Court has held as under:
"..... two courses are open to the investigating officer, i.e. either to file the challan before the Magistrate who may commit the accused to the said Court for trial and it may also file a challan directly in Special Court and it can directly take cognizance. We are unable to agree with the learned counsel appearing for the petitioner that filing of challan before the Magistrate is totally prohibited because if that was the intention of the legislature then there was no necessity to use the words 'take cognizance of that offence without the accused being committed to it for trial' in Clause (d) of Sub-section (1) of Section 36 of the Act."
(40). In Bhura Lal (supra), the Full Bench of this Court replied the reference as under:
"(i) The cases including offences under S.C./S.T. Act are exclusively triable by a Special Court created under Section 14 of the S.C./S.T. Act.
(iii) The Magistrate having jurisdiction over the area in which offences under S.C./S.T. Act are alleged to be committed, empowered to deal with the cases under Section 190 of the Code will also have the jurisdiction to deal with cases during he 'inquiry' i.e. pretrial stages including exercise of power under Section 156(3) of the Code and thereafter he shall transmit all such cases to the Special Court situated within that jurisdiction."
(41). In State of West Bengal vs. S.N. Basak (48), the Hon'ble Supreme Court dealt with a case wherein the High Court had held that the statutory powers of investigation given to the police under Chapter XIV of Cr.P.C. were not available in respect of offences triable under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and hence the investigation was without jurisdiction. The Hon'ble Supreme Court reversed the said judgment observing as under:
"The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154, which is in that Chapter, deals with information in cognizable offence and Section 156 with investigation into such offences and under these Sections, police has statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of police to investigate cannot be interferred with by the exercise of power under Section 439 or under the inherent power of the Court under Section 561-A of Criminal Procedure Code."
(42). Thus, in such a situation, the order passed by the Magistrate under Section 156(3) of the Code becomes irrelevant. More so, it is settled proposition of law that "social stability and order is required to be regulated by proceeding against the offender as it is an offence against the society as a whole." (Rashmi Kumar vs. Mahesh Kumar Bhada (49)).
(43). In a recent judgment, the Hon'ble Apex Court, in Gangula Ashok & Anr. vs. State of Andhra Pradesh (50), has categorically held that Section 5 Cr.P.C. does not nullify the effect of the provisions of Section 4(2) of the Code for the reason that later provides that if another enactment contains any provision which is contrary to the provisions of the Code, such other provision will apply. But if there is no such contrary provision in the other laws, then provisions of the Code will apply to the matters covered by it.
(44). Much has been argued as what constitutes "cognizance". Mr. Raval has placed reliance upon the judgment of the Hon'ble Supreme Court in State of Maharashtra vs. Dr. Budhi Kola Subbarao (51), where a passing remarks has been made that in general sense, cognizance means "taking notice of." Thus, the Court is precluded from entertaining the complaint or taking notice of it, if it is in respect of a public servant, who is accused of an offence alleged to have been committed during discharge of his official duty. In fact, "taking cognizance does not involve any formal action or in deed action of any kind but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of the offence." Every order passed by the Magistrate at pre-trial stage may not amount to cognizance. Orders passed on an application for bail or remand, are, undoubtedly, judicial orders but it cannot be said that it amounts to taking cognizance or the Court cannot pass such an order without taking cognizance. Mainly, the function of the Court begins when a charge is preferred before it and not until then. (Vide Emperor vs. Khwaja Nazir Ahmad (supra).
(45). In R.R. Chari vs. State of U.P. (52), the Apex Court considered the issue; whether Magistrate has no jurisdiction to issue any process in a complaint case without taking cognizance and the Apex Court held that issuing a warrant at such stage of investigation by the police in cognizable offence is quite different and the stage, at which warrant is asked for, may be merely of investigation and issuing warrant does not necessarily mean that the Court had taken cognizance and, therefore, issued warrant. While explaining the meaning of cognizance, the Court further held that the cognizance should have been taken for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the Chapter, i.e. proceeding under Section 200 and thereafter, and when the Magistrate applies his mind, not for the purpose of proceeding under the subsequent Sections of this Chapter but for taking action of some other kind, e.g. ordering inquiry under Section 156(3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence. This judgment was reconsidered and approved by the Apex Court in Narayandas Bhagwandas Madhavdas vs. State of West Bengal (53).
(46). In Gopal Das Sindhi & Ors. vs. State of Assam & Anr. (54), the Apex Court held that the provisions of Section 190 provide that any Magistrate, empowered under Section 190, may order such investigation as above-mentioned, does not mandatorily require that a Magistrate, entertaining a complaint, shall, at once, examine the complainant and the witnesses present, if any, upon oath and the substance of the examination is reduced to writing and the complainant and the witnesses are asked to sign it. The word 'may' in Section 190, does not mean 'must'. The reason is that a complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint under Section 156(3) to the police for investigation. There is no reason why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving the cognizable offences is with the police. The test as on what stage cognizance is taken, is that it is the stage when the Court satisfies itself whether there is sufficient ground for proceeding. (Vide Chandra Deo Singh vs. Prakash Chandra Bose (55).
(47). In Anowar Hussain vs. Ajay Kumar Mukherjee & Ors. (56), the Apex Court considered a case where a suit had been filed against a Magistrate for malicious prosecution and for issuing warrant of arrest by him. The Court held that as the Magistrate has not taken the cognizance of an offence against the plaintiff before ordering his arrest and the order had been passed in executive capacity and not in discharge of the judicial functions of the Magistrate, he was not entitled for the protection of the provisions of The Judicial Officer's Protection Act, 1850.
(48). In Abhinandan Jha & Ors. vs. Dinesh Mishra (57), the Hon'ble Supreme Court observed that even in a case where final report is submitted by the police, the Magistrate, if agrees with the said report, may accept the same and close the proceedings. But there may be instances where the Magistrate may take a view, on the consideration of final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, the Magistrate will have ample jurisdiction to give directions to the police, under Section 156(3), to make further investigation. Thus, in case the Magistrate is satisfied, after considering the final report, that there is a scope of further investigation, it will be open to him to decline to accept the final report and direct the police to make further investigation under Section 156(3) and if ultimately the police, after such further investigation, submits a charge-sheet or again submit a final report, depending upon the further investigation made by it, and the Magistrate agrees to the conclusion that the report constituted an offence, he can take cognizance of the offence under Section 190(1)(b), notwithstanding the contrary opinion of the police expressed in the final report.
(49). In Kishan Singh vs. State of Bihar (58), the Hon'ble Apex Court, placing reliance on its earlier judgment in Jamuna Singh vs. Bhadai Sah (59), held that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report and on being satisfied that the allegations, if proved, would constitute an offence, decides to initiate judicial proceedings against the alleged offender he is said to have taken the cognizance of the offence.
(50). In Purshottam Jethanand vs. State of Kutch (60), the Hon'ble Apex Court up-held the conviction even on the basis of the cognizance taken by the Magistrate having no jurisdiction.
(51). Moreso, cognizance is taken of the offence and there is nothing like taking cognizance of the offender at that stage. (Vide Hareram Satpathy vs. Tikaram Agarwal (61) and Anil Saran vs. State of Bihar (62).
(52). Therefore, it is clear that the order passed by the Magistrate to the police to investigate a case under Sub-section (3) of Section 155 of the Code does not amount to taking cognizance of an offence and he can take cognizance if the charge-sheet is filed after investigating the matter subsequently. If it is held that issuing a direction to investigate a case under Section 156(3) amounts to taking cognizance, then what the proceedings when a Magistrate has to apply his mind on submission of the charge-sheet or final report later on will be called. It is settled proposition of law that order passed under Section 156(3) of the Code by the Magistrate is an administrative order and does not amount to taking cognizance of an offence under Section 190 of the Code, as held by this Court in Kamal Kishore vs. Mohan Lal (63). Similar view has been reiterated in Dr. Moizuddin vs. State of Bihar (64); Ghanshyam vs. State of Rajasthan (65) and Madhu Bala vs. Suresh Kumar (66).
(53). Be that as it may, the grounds taken in this application had been repeatedly taken by applicant Raman Lal and co-accused Sanjeev R. Bhatt before the Gujarat High Court and also before the Hon'ble Supreme Court in Special Leave Petition (Crl.) Nos. 4309 and 4375 of 1999 as welt as in Transfer Petition (Crl.) No. 98/1998 filed by them jointly before the Hon'ble Apex Court. The question of maintainability of these proceedings in view of the provisions of Section 36A of N.D.P.S. Act, had specifically been raised in the said Special Leave Petitions which stood dismissed in limine vide order dated 15.1.99. This Court cannot lose sight of the fact that the case of Phootar Mal, against whom the charge-sheet had been filed before the Special Judge (N.D.P.S.), Jodhpur, stood transferred to the Special Judge (N.D.P.S.), Delhi by virtue of the order of the Hon'ble Supreme Court in T.P. (Crl.) No. 38/1998 and this issue had also been agitated therein. There is also further order of the Hon'ble Supreme Court that in case the charge-sheet is filed 'against the applicants, they may renew their applications for transfer of the case and to get the trial alongwith Phootar Mal in Delhi Court.
(54). In fact, the case as a whole can be transferred from one Court to another and when a case is transferred, it is to be transferred in respect of all the accused and as the matter of Phootar Mal has become final and he is facing trial in a competent court at Delhi, it is not desirable for this Court to quash the proceedings in respect of the remaining persons named in the complaint. Moreso, the Hon'ble Supreme Court did not consider it proper to interfere with the matter when these issues wee agitated before it repeatedly. The Hon'ble Supreme Court also rejected the SLP (Crl.) No. 2607/97, against the rejection of his bail application in the same case. Attempts after attempts before various forums for the same relief amounts to Forum shopping as termed by the Hon'ble Supreme Court in Rajiv Bhatia vs. Govt. of NCT of Delhi & Ors. (67).
(55). Realising the need of the hour, the Parliament has enacted the N.D.P.S. Act with a view to eliminate drug addiction and illegal trafficking in drugs by providing stringent punishment for the production, manufacture, possession and sale of drugs and psychotropic substances. Section 58 safeguards the innocent persons from arrest and search by providing punishment for vexatious entry, search, seizure or arrest as also for giving the false information wilfully and maliciously and so causing an arrest or a search being made under the Act.
(56). Mr. Raval, learned Addl. Sol. Gen. appearing for the State of Gujarat in Application No. 108/99, has urged strenuously that cognizance could not have been taken by the Cheif Judicial Magistrate, Pali, without obtaining prior sanction of the Gujarat Government as required under Section 197 Cr.P.C; nor the complaint ought to have been filed at such a belated stage as entertaining the complaint at such a belated stage is not permissible under the provisions of Section 42 of the Police Act, 1861, in respect of Mr. Sanjeev R. Bhatt, who is a member of Indian Police Service and the said provisions provide for the limitation of three months from the dale of misconduct/offence, and for other remaining police officials, of Section 161 of Bombay Police Act, 1951, (applicable in Gujarat also), which provides for the limitation of six months and for taking cognizance and for prosecution, two years from the date of offence. It has further been submitted by Mr. Raval that complaint, involving the false implication, could be filed only at Palanpur Court and not otherwise, as required u/Sec. 195 Cr.P.C.
(57). The scope of cognizance in strict legal sense has already been explained. Moreso, the issue of sanction under Section 197 Cr.P.C. has been considered by the Courts time and again. The mandate of Section 197 Cr.P.C. is only that when a public servant, not removable from his office save by or with sanction of the Government, is accused of an offence alleged to have been committed by him while acting or purported to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction of the competent authority. The embargo put by that Section is in order to save the public servant from harassment in the discharge of official duty and to guard against vexatious proceedings and to secure well considered opinion of the superior authority before a prosecution is launched against him, but this qualified protection is limited to a class of offences. A public servant can only be said to act or purported to act in the discharge of his official duty if his act is such as to lie within the scope of his official duties. The lest may well be whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office. Thus, it is not every offence commuted by a public servant that requires sanction for prosecution under Section 197(1) Cr.P.C. If the act, complained of, is directly concerned with his official duly so that, if questioned, it could be claimed to have been done by virtue of the office then sanction would be necessary and that would be so irrespective of whether it was, in fact, a proper discharge of duties because that would really be a matter of defence on the merits.
(58). Mr. Raval placed reliance upon a large number of judgments of the Apex Court, particularly Virupaxappa Veerappa Kadampur vs. State of Mysore (68); Kamalapati Trivedi vs. State of West Bengal (69); State of Bihar vs. Kamla Prasad Singh & Ors. (70); S.R. Saha & Ors. vs. M.S. Kochar (71) and Ram Kumar vs. State of Haryana (72) to show that whatever had been done by the police officials was done in good faith and performing their duties. Thus, the Chief Judicial Magistrate ought not have taken cognizance of the offence, by entertaining the complaint.
(59). In State of Maharashtra vs. Dr. Budhikota Subbarao (supra), the Apex Court held that use of words "no" and "shall" in Section 197 Cr.P.C. make it abundantly clear that the bar on the exercise of the power of the Court to take cognizance of any offence is absolute and complete. "Very cognizance is barred. That is the complaint cannot be taken notice of." "A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercise jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty." In State through C.B.I, vs. B.L. Verma & Anr. (73), the Hon'ble Supreme Court held that sanction under Section 197 Cr.P.C. is required in case the action alleged against a Government servant has committed it in the purported discharge of his duties and while doing so, he has abused the official position. Similar view had been reiterated by the Apex Court in Pukhraj vs. State of Rajasthan (74).
(60). For the sake of argument, if the allegations made in the complaint are taken to be true, it is evident that under the garb of their official duty, the police officials have committed a crime.
(61). In Matajog Dobey vs. H.C. Bhari (75), the Constitution Bench of the Supreme Court held as under:
"There must be a reasonable connection between the act and the discharge of official duly; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful, claim that he did it in the course of performance of his duty."
(62). In S.B. Saha (supra), the Hon'ble Apex Court placed reliance upon the judgments of the Privy Council in H.B. Gill vs. The King (76) and Hori Ram vs. Emperor (77) and held that there is nothing "in the nature or quality of the act complained of which attaches to or partakes of the official character of the appellants who allegedly did it. Nor could the alleged act of misappropriation or conversion, be reasonably said to be imbued with the colour of the office held by the appellants."
(63). Same view has been reiterated in Amrik Singh vs. State of Pepsu (78); Om Prakash Gupta vs. State of U.P. (79); Baijnath vs. State of M.P. (80); Prabhakar V. Sinari vs. Shanker Anant Verlekar (81); Bhagwan Prasad Srivastava vs. N.P. Mishra (82); B.S. Sambhu vs. T.S. Krishnaswami (83); K.M. Mathew vs. State of Kerala (84); State of Maharashtra vs. Dr. Buddikota Subbarao (85); Director of Inspection and Audit & Ors. vs. C.L. Subramaniam (8$); Suresh Kumar Bhikam Chand Jain vs. Pandey Ajay Bhushan & Ors. (87); N.K. Ogle vs. Sanwaldas (88) and A.K. Singh vs. Uttarakhand Jan Morcha & Ors. (89).
(64). In Shambhoo Nath Misra vs. State of U.P. (90), the Hon'ble Supreme Court held as under:
"In such a situation it postulates that the public servant's art is in furtherance of his performance or his official duties. If the act/omission is integral to performance of public duty, the public servant is entitled to the protection under Section 197(1) Cr.P.C. ..... The sanction of the Appropriate Government or Competent Authority would be necessary to protect a public servant from needless harassment or prosecution. The protection of sanction is an assurance to an honest and sincere officer to perform his public duty honestly and to the best of his ability. The threat of prosecution demoralises the honest officer. However, performance of public duty under colour of public duty cannot be camouflaged to commit crime. Public duty may provide him an opportunity to commit crime. The court to proceed further in the trial or the inquiry, as the ease may be, applies its mind and records a finding that the crime and the official duly are not integrally connected.... The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably inter-linked with the crime committed in the course of same transaction....."
(65). Therefore, it is settled principle of law that in absence of ex-facie official action alleged in the complaint, the accused can be proceeded against in the criminal trial like any other accused without any requirement for sanction under Section 197 Cr.P.C. or any other analogous provision in other Statute/Rules. And in view of the above, I am of the considered opinion that the said sanction was not required at all, as there was no connection between the official duty and the offence allegedly committed. More so, no person, in discharge of his official duty, ran be permitted to use his official position to commit an offence. In the instant case, there was no inter-relationship between the official duty and the offence committed by the applicant and police officials and, therefore, even by means of imagination, no one can postulate reasonably that the offence was committed by them in performance of their official duty. Moreso, it is only the stage of investigation.
(66). In Emperor vs. Khwaja Nazir Ahmad (supra), the Hon'ble Supreme Court held that the provisions of Section 197 Cr.P.C. are not attracted in a case of inquiry/investigation for the reason that "the position in a time at which a Court is required to take cognizance of a matter, has not yet been reached; .... and there is a marked distinction in a stage of investigation and prosecution."
(67). Mr. Raval has placed much reliance on the provisions of Section 69 of the N.D.P.S. Act, which provide that no such prosecution or legal proceedings shall lie against the officer of the Slate Government for anything done in good faith or in tended to be done under this Act or any Rule or Order made thereunder. The submission has been that this provision puts an embargo on prosecution, therefore, the proceedings are liable to be quashed. The provision is attracted provided the action taken by the officer can be held to have been done in good faith. The expression "good faith" has several sets of meaning, however, in popular sense, it simply means honestly, without fraud, collusion or deceit, really, actually, without pretence and without intent to assist or act in furtherance of a fraudulent or otherwise unlawful scheme. The quality and quantity of honesty requisite for constituting good faith is conditioned by the context and object of the statute in which the term is employed. As per the provisions of Section 3 of the General Clauses Act, 1897, a thing shall be deemed to have been done in good faith where it is, in fact, done honestly though might have been done negligently. Section 52 of the Indian Penal Code defines the term "negatively" that nothing is said to be done or believed in good faith which is done or believed without due care and attention. Therefore, the question of good faith requires consideration with reference to the position of the accused and the circumstances under which he has acted. In insolvency mailers, for deciding good faith, the test of honesty is more appropriate than the test of due care and attention. Good faith includes a due inquiry. A person is entitled for excuse for committing an error of judgment only if he exercised due care and attention and his conduct shows that there has been no negligence on his part.
(68). Section 14 of the Limitation Act qualifies prosecuting the proceedings in the Court which ultimately is found to have no jurisdiction. The plea of good faith may be negatived on the ground of recklessness, inductive of one on due care and caution. In deed, it does not require logical inflability. In case of defamation, the matter requires care and caution and prudence in the background of the context and the circumstances. (Vide Kailas Sizing Works vs. Municipality of Bhivandi and Nizampur (91); Gulabchand Bhandarbhai Soni vs. State of Gujarat & Anr. (92); N. Subramania Iyer vs. Official Receiver, Quilon & Anr. (93); Chaman Lal vs. State of Punjab (94); Brijendra Singh vs. State of U.P. & Ors. (95); Vijay Kumar Rampal & Ors. vs. Diwan Devi & Ors. (96) and Ghasi Ram & Ors. vs. Chait Ram Scni & Ors. (97).
(69). Thus, even the quality and quantity of the honesty requisite for constituting good faith has to be examined in the context and object of the statute in which the term is employed, for the reason that it is the cardinal canon of construction that an expression which has no unique, precisely fixed meaning, takes its colour, light and contents from the context. The meaning and scope of the expression "good faith" is to be considered in the light of the scheme of the statute.
(70). The N.D.P.S. Act has been enacted to check the social menace of drug trafficking and provides for stringent punishment. Thus, if in the context of the statute, the conduct of the persons involved is examined, as per the allegations in the complaint and record placed by the parties, the action taken by the persons involved cannot be held to be done in good faith if the same be taken to be true on its face value. Therefore, the provisions of Section 69 have no relevancy in the case.
(71). Mr. Raval, learned Addl. Sol. Gen., has vehemently submitted that the complaint against Mr. Sanjeev R., Bhatt, who is a member of Indian Police Service, is not maintainable in view of the provisions of Section 42 of the Indian Police Act, 1861, which reads as under;
"All actions and prosecutions against any person, which may be lawfully brought for anything done or intended to be done under the provisions of this Act, or under the General police powers hereby given, shall be commenced within three months after the act complaint-of shall have been committed and not otherwise...."
(72). It has been submitted by Mr. Raval that the complaint was barred by limitation provided under the above provisions and being a Special Act, it will over-ride the provisions providing limitation under the Code of Criminal Procedure or any other Act, therefore, the cognizance could not have been taken only on this ground, so far as accused Mr. Sanjeev R. Bhatt is concerned. Undoubtedly, there can be no quarrel with the legal proposition that special provisions will over-ride general provisions. (Vide Secretary of the State vs. Hindustan Co-operative Insurance Society Ltd. (98); J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs. State of U.P. & Ors. (99); Patna Improvement Trust vs. Smt. Lakshmi Devi (100); Sumer Chand vs. Union of India & Ors. (101) and State of Orissa & Ors. vs. Commissioner of Land Records and Settlement, Cuttack & Ors. (102). But there is a complete fallacy in the submission made by Mr. Raval as the provisions of Section 42 are confined in their application to actions and prosecutions in respect of anything done or intended to be done under the provisions of the Police Act, 1861. They do not and cannot apply to a person being prosecuted for an offence under any other Act or an action being brought in respect of thing or anything done under the provisions of any other statute.
(73). In Moulud Ahmed vs. State of U.P. (103), the Hon'ble Apex Court repelled the similar contention observing as under:
"Section 42 does not apply to prosecution against any person for anything done under the provisions of any other Act or under Police powers conferred under any other Act. Under Section 36, nothing contained in the Police Act shall be construed to prevent any person from being prosecuted under any regulation or Act for any offence made punishable by this Act or for being liable under any other regulation or Act or anything or higher penalty or punishment than is provided for such offence by this Act. This section makes it clear that the provisions of the Act, including Section 42, do not preclude a person being prosecuted for an offence under any other Act. A combined rending of these provisions leads to the conclusion that Section 42 only applies to a prosecution against a person for an offence committed under the Police Act."
(74). The said judgment was approved and followed subsequently by the Apex Court in Ajaib Singh & Anr. vs. Joginder Singh & Anr. (104).
(75). In Pritam Singh vs. State of Haryana (105), the Apex Court considered the applicability of the provisions of Section 42 in a case where the police official had been charged under Section 29 of the Police Act itself and the Apex Court held that in such a case, Section 42 would apply.
(76). In Sumer Chand (supra), the Apex Court held that application of Section 42 of the Police Act is limited if the person is charged under the said Act alone. This Court has taken this view about half a century ago in Mangi Lal vs. State (106) after placing reliance on various judgments of other Courts and particularly in Mohd. Sharif vs. Nasir Ali (107) and Heeralal vs. Ramdulari (108).
(77). Thus, the contention raised by Mr. Raval is devoid of any merit.
(78). It has next been urged by Mr. Raval that the prosecution of other police officials is barred by limitation provided by Section 161(1) of the Bombay Police Act, 1951, which reads as under:
"Sec. 161 (1).-Suits or prosecutions in respect of acts done under the colour of duty, as aforesaid, not to be entertained, or to be dismissed if not instituted within the prescribed period:
In any case of alleged offence by the.... Police Officer... or of a wrong alleged to have been done by such .... Police Officer.... any act done under the colour or in excess of any such duty or authority, as aforesaid, or wherein it shall appear to the Court that the offence or wrong, if commuted or done, was of the character aforesaid, the prosecution or suit shall not be entertained, or shall be dismissed, if instituted, more than six months after the date of the act complained of.
Provided that any such prosecution against a police officer may be entertained by the Court if instituted with the previous sanction of the State Government within two years from the date of the offence".
(79). This issue was dealt elaborately by the Division Bench of Gujarat High Court in Fatch Sinh Madhu Sinh Rathod vs. N. Rama Iycr (109), Commissioner of Police, and the Court, after considering a large number of judgments, held that the limitation shall apply even in a case where the malice has been alleged while acting under the colour of office.
(80). In MM. Rajendran vs. K. Ramakrishnan (110), the Hon'ble Supreme Court has held that the question of limitation for prosecution launched by the party must be necessarily considered even in the proceedings under Section 482 Cr.P.C.
(81). In Virupaxappa Kadampur (supra), the Hon'ble Supreme Court observed as under:
"The expression 'under colour of something' or 'under colour of duty' or 'under colour of office' is not infrequently used in law as well as in common parlence. Thus, in common parlence, when a person is entrusted with the duty of collecting funds for, say, some charity and he uses that opportunity to get money for himself, we say of him that he is collecting money for himself under the colour of making collections for a charily. Whether or not when the act bears the true colour of the office or duly or right, the act may be said to be done under the colour of that right, office or duty, it is clear that when the colour is consumed is the cover or a cloak for something which cannot properly be done in performance of the duly or in exercise of the right or office, the Act is said to be done under colour of office or duty or right. It is reasonable to think that the legislature used the word 'under colour' in Section 161(1) to include this sense."
(82). In State of Andhra Pradesh vs. N. Venugopal (111), the Apex Court dealt with the provisions of Section 53 of the Madras District Police Act, 1859, which contains provisions analogous to those contained in Section 42 of the Bombay Police Act, 1861. The Apex Court held that to determine whether the act done could be said to be under a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In absence of such a relation, the act cannot be said to have been done under particular provisions of law.
(83). In Sumer Chand (supra), the Apex Court held that the provisions of Section 161(1) of the Bombay Police Act has a very wider amplitude as the words "in any case of alleged offence" or "of a wrong alleged to have been done" and "by any act done" are contained therein and, thus, requires to be considered in wider sense. However, the Apex Court dealt with a case where the suit for malicious prosecution against two police officials, for having been registered on false, vexatious and malicious report had been filed. The Apex Court, while interpreting the provisions of Section 140(1) of the Delhi Police Act, which is analogous to the provisions of Section 161(1) of the Bombay Police Act, 1951, held that it was the duty of the said police officers to record the report and so also to file the challan in Court and, thus, the acts complained of were done under the colour of office of the said officers and, thus, fell within the ambit of Section 140(1) of the Act and, therefore, the case had to be filed within limitation provided therein and the suit was found to be barred by limitation having been filed after expiry of three months.
(84). The instant case is quite distinguishable for the reason that it cannot be co-related with the duty of the official to get the shop vacated at Pali and for that purpose to hetch a conspiracy and falsely involve the complaint in a case under the N.D.P.S. Act. The instant case, rather, falls within the four corners of the judgment of the Hon'ble Supreme Court in State of Maharashtra vs. Narhar Rao (112), where the Hon'ble Apex Court considered the provisions of Section 161(1) of the Bombay Police Act and held that accepting a bribe for weakening the prosecution case, cannot be held to have any reasonable connection between the act complained of and the powers and duties of the officers and it was not permissible to hold that the act was done by the accused-officers under the colour of office. The Court further held that "the alleged acceptance of bribe by the accused- officers was not an act which could be said to have been done under the colour of office or done in excess of his duty or authority within the meaning of Section 161(1) of the Bombay Police Act."
(85). In State of Maharashtra vs. Atma Ram (113), the alleged act of assault and confinement of a suspect in police custody was held not to be acts done under the colour of duty or authority since the said ads had no reasonable connection or nexus to the duty or authority imposed upon the officer under the Bombay Police Act or any other enactment conferring power of the police under the colour of which this act was done and that such acts fall completely outside the duties and scope of the police officers and they were not entitled to the protection conferred by Section 161(1) of the Bombay Police Act.
(86). In Bhanuprasad Hariparsad Dave & Anr. vs. State of Gujarat & Ors. (114), the Apex Court considered the provisions of Section 161 of the Bombay Police Act, 1951 and repelled the similar contention holding that accepting illegal gratification could not be brought within the ambit of the said provisions, in such case, a police officer, taking advantage of his position as a Police Officer, and availing himself of the opportunity afforded by another police officer, handed over to him a coerced accused to pay illegal gratification to him. The Apex Court held that such an act cannot be brought within the ambit of an act done under the colour of duty. In case where the provisions of Section 197 Cr.P.C. are held to be not applicable, it is difficult to assume that provisions of Section 161(1) of the Bombay Police Act, 1951 can be attracted.
(87). In view of the above, 1 am of the considered opinion that neither the provisions of Section 42 of the Police Act, 1861, nor Section 161(1) that of the Bombay Police Act, comes to the rescue of the police officers and the contention is hereby turned down.
(88). Mr. Raval has further urged that the complaint could not have been entertained by the Chief Judicial Magistrate, Pali, for the same was barred by the provisions of Section 195 Cr.P.C. as the complaint could be lodged only by the Court, for which the false evidence had been fabricated and before which it has been used. In Nirmaljit Singh Hoon (supra), the Hon'ble Apex Court held that fabricated evidence should be tendered in evidence and only then it would attract the provisions of Section 195(1) Cr.P.C.
(89). In Manohar M. Galani vs. Ashok N. Advani & Anr. (115), the Apex Court considered the application of Section 195 Cr.P.C. and observed that in investigation on the basis of the information cannot be throttled at this stage from proceeding with the investigation when the charges are very serious and grave and the High Court, in its power under the inherent jurisdiction, should not interfere in such matters and it was premature for the High Court to come to the conclusion that the provisions of Section 195 Cr.P.C. were applicable.
(90). In Sacchida Nand Singh and Another vs. State of Bihar and Another (116), the Apex Court considered the scope of application of Section 195(1)(b) read with Section 340 Cr.P.C. and observed as under:
"The sub-section puts the condition that before the Court makes a complaint of 'any offence referred to in Clause (b) of Section 195(1), the Court has to follow the procedure laid down in Section
340. In other words, no complaint can be made by the Court regarding any offence falling within the ambit of Section 195(1)(b) of the Code, without adopting those procedural requirements. It has to be noted that Section 340 falls within Chapter XXVI of the Code, which contains a fascicuilus of 'provisions as to offence affecting the administration of justice' as the title of the Chapter appellates. So the offence envisaged in`tion 195(a)(b) of the Code must involve acts which would have affected the administration of justice.
The scope of preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice, has been committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia logis".
(91). While deciding the said case, the Hon'ble Supreme Court placed reliance upon large number of its earlier judgments, particularly, Raghunath & Ors. vs. State of U.P. (117); Mohan Lal vs. State of Rajasthan (118); Legal Rememberancer of Government of West Bengal vs. Haridas Mundra (119) and Gopalkrishna Menon vs. D. Raja Reddy (120), and held as under:
"The sequietur of the above discussion is that the bar containing in Section 195(1)(b), (2X0 of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a Court."
(93). In State of Punjab vs. Brij Lal Palta (124), the Apex Court held that for want of such technical requirement, the Court at the most ran quash proceedings only in respect of the offence requiring such a course, but there can be no objection to the continuance of proceedings relating to other cognizable offences under other Sections or Statute.
(94). Thus, the submission is devoid of any merit and is rejected for the reason that it is no body's case that documents had been fabricated while in the custody of the Court.
(95). Mr. Rathore, learned counsel appearing for the State of Rajasthan, has urged that in the instant case, the Gujarat Police got the information from Pali that the complainant was corning to Gujarat with narcotic drugs and psychotropic substance. The complainant was arrested from Pali. The shop (the subject matter of the main controversy) was situated at Pali and the complainant had been in possession thereof whatever may be nature of his possession. The law involving the complainant in a false case was set at motion in Pali. Therefore, in view of the provisions of Sec. 178 & 179 Cr.P.C., it cannot be said that the Chief Judicial Magistrate, Pali, had no jurisdiction at all.
(96). It is settled law that in an offence of a continuing nature, the Court, even through whose territorial jurisdiction the vehicle has passed, would have territorial jurisdiction to try the offence. (Vide Mrs. Sujata Mukherjee vs. Prashant Kumar Mukherjee (125) and Harbans Lal vs. State of Haryana & Ors. (12G). In a case where complainant's allegations are of stinking magnitude and the Authority, which ought to have redressed it has closed its eyes and not even tried to find-out the real offender and what were the circumstances under which the complainant had been arrested and harassed, whether he can be left at the mercy of such law-enforcing agencies who had, for the reasons best known to them, adopted an entirely indifferent attitude.
(97). There is another aspect of the matter. Legal maxim Necessiatas Sub Lege Non Continetur Quia Quia Quod Alias Non Est Lictum Necessitas Facit Lictum, means necessity is not restrained by laws; since what otherwise is not lawful necessity makes lawful. Cognizance has not yet been taken so far as applicant Raman Lal and police officials are concerned. In view of the plea taken by the complainant in objections against the application of Gujarat Police for taking him on remand and in his bail application (Annex.R/9 and R/10), make it crystal clear that the allegations made by him in the complaint are not after-thought. The submissions cannot be said to be preposterous and not worth consideration.
(98). Thus, it is not a fit case where this Court should exercise its extraordinary jurisdiction under Section 482 of the Code. The judgments of the Apex Court, which are legion, have laid down that save in exceptional case where non-interference would result in miscarriage of justice, the Court should not interfere at the stage of investigation. (Vide Eastern Spinning Mills vs. Rajiv Poddar (127). There has also been inordinate delay in filing applications, which cannot be explained even by giving reference to various proceedings taken before the High Court of Gujarat as the same stood finalised long" ago before filing this application.
(99). Entertaining these applications would render the complainant remediless, which is not permissible in law. (Vide Rameshwar Lal vs. Municipal Corporation, Tonk & Ors. (128). Moreso, legal maxim Ubi jus, Ibi Remedium, that is, if there is a right, there is a remedy to enforce it. Thus, in no circumstance the complainant can be refused a remedy to get his grievance redressed. Applicant Raman Lal, in his Special Criminal Case No. 1079/98, which is pending before the Gujarat High Court and the interim order is continuing, has taken various grounds challenging the validity of the Rules of Gujarat High Court for not providing Letters Patent Appeal in criminal case. However, the ground No.1 reads as under:
"That despite more than two years have passed yet the Palanpur Police has not carried further investigation to find out the real offender....."
(100). It clearly shows that the Gujarat Police has not considered it proper to find out the truth, if any, in the said case under the N.D.P.S. Act. No material has been produced before this Court (o show any progress in the said case by the Gujarat Police after the incident. A mere statement that accused persons have filed the petitions before Gujarat High Court to transfer the case to C.B.I, for finding out the truth, is no explanation. It is strange that one police officer, who was responsible himself for finding out the truth, if any, has filed such petition. Moreso, the allegations of reaching an agreement with Mohan Lal for vacating the premises in dispute, purchasing the stamp papers for executing the agreement by Raghunath Singh, real brother of the complainant, filing applications for discharge just after reaching the agreement, not holding identification parade by Gujarat Police till the agreement had been executed, cumulatively provide for cogent reasons and compel this Court not to interfere in the matter. Moreso, I failed to understand the appropriateness of entertaining these applications when two applications are already pending before the Gujarat High Court and the Hon'ble Gujarat High Court has stayed the further proceedings in relation to C.R. No. 403/96, Police Station, Kotwali, Pali. None of the parties before this Court considered it proper to bring it to the notice of Hon'ble the High Court of Gujarat that on the date of obtaining the interim order from Gujarat High Court, the interim order passed by this Court was in operation. Involving a person in a criminal case, in which minimum punishment is ten years and maximum twenty years imprisonment and a minimum fine of Rs. one lac or maximum Rs. two lacs, can also be imposed, has to be taken very seriously as it violates all fundamental rights of a citizen and is abborent to any notion of any civilised society. Entertaining these petitions, in view of pendency of two applications before the Hon'ble High Court of Gujarat, can, by no means be appropriate, rather insisting by the applicants to hear these matters amount to abuse of process of the Court.
(101). The State of Gujarat, which has filed the instant application for protecting its officials, could not be justified in maintaining the application, as it had taken no step to redress the grievance of the complainant. Before passing the resolution dated 3.11.1997 to protect the police officials by providing them the so-called statutory protection under para 262 of the Gujarat Police Manual, 1975 (Vol. I), the State ought to have considered as how their action could be said to be bonafide.
(102). In Dr. Buddhi Kola Subbarao vs. K. Parasaran (129), the Hon'ble Supreme Court has observed as under:
"No litigant has a right to unlimited drought on the court time and public money in order to get his affairs settled in the manner he wishes. However, access of justice should not be misused as a licence to file misconceived and frivolous petitions."
(103). The powers conferred upon the High Court under Section 482 Cr.P.C. are applicable in limited cases of grave dereliction from duty and flagrant abuse of any fundamental principle of law or where no remedy is available. The expression "abus- ing the process of the Court" is that the proceeding which is wanting any bonafide and is frivolous, vexations or oppressive and the provisions can be used to otherwise secure the ends of justice.
(104). In State of West Bengal vs. Rashmoy Das & Ors. (130), the Apex Court held that power of the High Court under Section 182 Cr.P.C. does not extent to quashing a prosecution which, though apprehended by the petitioner, has not yet been instituted, The High Court cannot take upon itself the burden to probe: whether the allegations in the complaint arc likely to be established by evidence or not. The Court has to see as to whether the uncontroverted allegations, as made prima facie, establish an offence, the Court has to be cautioned that the inherent powers cannot be utilized for any oblique purpose.
(105). In Janta Dal (supra), the Apex court observed that inherent powers can be used only for the ends of justice. "Such powers unrestricted and undefined, should not be capriciously and arbitrarily exercised but should be exercised in appropriate cases, ex debito justitiae, to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plentitude of the powers requires great caution in its exercise. The Courts must be careful to see that its decision, in exercise of this power, is based on sound proof... This inherent power conferred by Section 482 to the Court should not be exercised to stifle a legitimate prosecution. The High Court, being the highest Court of the State, should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy; moreso when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of great magnitude and cannot be seen in their true perspective without material."
(106). The facts referred to above make it crystal clear that the instant case does not present special features, which may warrant the exercise of extraordinary power of this Court under Section 482 Cr.P.C., Res Ipsa Liquitur-the things speak for itself. The Court has a duty to do justice to the parties. Hat justitia ruat caelum-let justice be done, though the heavens may fall
(B) REGISTRATION OF A CASE AGAINST A HIGH COURT JUDGK:-
(107). This issue is limited only to the case of applicant Raman Lal. Admittedly, on the date of lodging the complaint before (he Magistrate at Pali, the applicant was the Additional Judge of Gujarat High Court. Therefore, the issue has been raised: whether it was permissible in law to take cognizance on a complaint against him by the Magistrate?
(108). In K. Veeraswami vs. Union of India & Ors. (131), the Constitution Bench of the Hon'ble Supreme Court considered the issue and observed as under:
"It is settled law that the Authority entitled to grant sanction must apply its mind to the facts of the case and all the evidence collected before forming opinion whether to grant sanction or not. Secondly, the trial is by the Court which is independent of the Executive. But these safe-guards must be adequate. Any complaint against Judge and its investigation by the C.B.I., if given publicity, will have far-reaching effect on the Judge and the litigant public. The need, therefore, is a judicious view of taking action under the Act. Care should be taken that honest and fearless Judges are not harassed. They should be protected.... All that is required is to lay down certain guidelines, lest the Act may be misused. This Court being the ultimate guardian of the rights of people and independence of judiciary will not deny itself the opportunity to lay down such guidelines. We must never forget that this Court is not a court of limited jurisdiction of only dispute-settling. Almost from the beginning, this Court had been a law-maker, albeit in Holmes's expression, "interstitial" law-maker. In deed, the Court's role today is much more. It is expanding beyond dispute-setting and interstitial law-making. It is a problem solver in the nebulous areas. In this case, we consider it no mere opportunity: it is a duty, it is our responsibility and duty to apply the existing law in a form more conducive to the independence of judiciary."
The Court Further directed as under:
' We, therefore, direct that no criminal case shall be registered under Section 154 Cr.P.C. against a Judge of the High Court, Chief Justice of the High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter."
(109). The issue of consultation, as referred to above, came for consideration before the Hon'ble Supreme Court in C. Ravichandran Iyer vs. Justice A.M. Bhattacharjee & Ors. (132), and after considering the judgments in Veeraswami (supra) and Supreme Court Advocates on Record Association vs. Union of India (133), it was held that Sanction and Approval of the Chief Justice of India was a condition precedent to register a case and investigate into the matter and Sanction for Prosecution of the said Judge by the President of India after consultation with the Chief Justice of India.
(110). In U.P. Judicial Officers' Association vs. Union of India & Ors. (134), the Hon'ble Supreme Court held that no criminal ease could be registered against a Judicial Officer in respect of anything allegedly done or in his capacity as holder of such Judicial Office, without the prior permission of the Chief Justice of the High Court concerned. Certain directions had also been issued in the similar line in Delhi Judicial Service Association vs. State of Gujarat (135). Such directions issued by the Hon'ble Supreme court are of binding nature for the reason that the law laid down by the Hon'ble Supreme Court is binding on all Courts in India.
(111). In Nand Kishore vs. State of Punjab (136), the Hon'ble Supreme Court has held as under:
"Under Article 141, the law declared by it is of a binding character and as commandful as the law made by the legislative body or an authorised delegatee of such body... for the Court is not merely the interpreter of the law as existing but much beyond that. The Court, as a wing of the State, is, by itself, a source of law. The law is what the Court says it is."
(112). Similarly, a Constitution Bench of the Hon'ble Supreme Court in Supreme Court Bar Association vs. Union of India & Ors. (137), has held that the role of the Supreme Court has always been of law-maker and it has travelled beyond merely dispute-settling.
(113). In Vishaka & Ors. vs. State of Rajasthan & Ors. (138), the Hon'ble Supreme Court issued large number of directions in order to check the menace of sexual harassment of working women at working places and further directed that the said directions would be treated as the law declared by the Hon'ble Supreme Court under Article 141 of the Constitution.
(114). Ignoring the directions issued by the Hon'ble Supreme Court "amounts to judicial impropriety" and such "judicial adventurism cannot be permitted." (Vide Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engg. Works (P) Ltd. (139). In C.N. Rudramurthy vs. K. Barkathulla Khan & Ors. (140), the Hon'ble Apex Court observed as under:
"In deed, it is a matter of judicial discipline that requires that when this court states as to what the law on the matter is, the same shall be binding on all the Courts within the territory of India. This mandate of Article 141 of the Constitution is not piece of any doctrine of precedents, but is an imprimatur to all Courts that the law declared by this Court is binding on them."
(115). In K. Veeraswami (supra), the Hon'ble Supreme Court, while dealing with a case under the Prevention of Corruption Act and the court had dealt with various aspects of law observing as under:
"There are various protections conferred, to the Judges to preserve the independence of judiciary. They have ptotection from civil liability for any act done or ordered to be done by them in discharge of their judicial duty whether or not such judicial duty is performed within the limit of their jurisdiction. That has been provided under Section 1 of the Judicial Officer Protection Act, 1850. Likewise, Section 77, I.P.C. gives them protection from criminal liability for an act performed judiciously. But we know of no law providing protection for Judges for criminal prosecution. Article 361(2) confers immunity from criminal prosecution only to the President and Governors of the States and to no others.... The Judges are liable to be dealt with just the same way as any other person in respect of criminal offence. It is only in taking bribes or with regard to the offence of corruption, the sanction for criminal prosecution is required".
(116). Therefore, it is evident that the Court was dealing with a case under the Prevention of Corruption Act. The Constitution Bench started its judgment stating that the appeal raised the question of singular importance and consequence to the Judge of the High Courts and the Apex Court." The central issue is: whether the Judge could be prosecuted for offence under the Prevention of Corruption Act, 1947 (for short, "the Act")." Therefore, the Hon'ble Apex Court had considered whether the Judge can be prosecuted under the Prevention of Corruption Act and the Court has not considered the entire aspect of criminal liability of a sitting Judge of a High Court or the Supreme Court. Moreso, while issuing the direction not to register a case under Section 154 Cr.P.C. against a sitting Judge, the Court further observed as under:
"Due regard must be given by the Government to the opinion expressed by the Chief Justice. If the Chief Justice is of the opinion that it is not a fit case for proceeding under the Act, the case shall not be registered."
(117). The reference to the Act, while issuing the direction, makes it explicit clear that the Hon'ble Supreme Court was putting such an embargo only in relation to the cases under the Prevention of Corruption Act.
(118). In C. Ravichandran Iyer (supra) also, the charges had been of corruption and not of other criminal nature. More so, in U.P. Judicial Officer's (supra), the Court distinguished the act done in official capacity and out-side of the same. Thus, it is evident that the directions issued by the Hon'ble Supreme Court in the said cases are, by no means, applicable in the instant case and on that count, the applicant cannot succeed.
(119). Mr. Barot has valiantly but unsuccessfully tried to bring the allegations against applicant Raman Lal under the provisions of Section 13( 1 )(a) of the Prevention of Corruption Act. Submission on this aspect is preposterous. An identical submission was repelled by the Hon'ble Supreme Court in Om Prakash vs. State of U.P. & Ors. (141) and State of Madhya Pradesh vs. Veereshwar Rao Agnihotri (142), observing that offence under the Prevention of Corruption Act may not be identical in essence to the offence under Indian Penal Code, otherwise it would tentamount to repealing the identical provisions in I.P.C. by implication. Similar view has been expressed in State of Bombay vs. S.L Apte (143).
(120). Moreso, it is also settled legal proposition that though Code of Criminal Procedure enables a Court to try all offences together, the same is not mandatory and, thus, the Court may or may not try all offences together in one trial. (Vide Mohinder Singh vs. State of Punjab (144). Submissions on this count also are not worth accepting and the same are repelled.
(C) REFERENCE TO/ & CONSIDERATION OF EVIDENCE AT THIS STAGE:
(121). Mr. Barot has vehemently argued on absurdity of the complaint and tried to convince the Court that in view of the depositions of the complainant himself before the Special Court in Delhi in respect of the same subject matter, the complaint filed by him before the learned Magistrate at Pali cannot be sustained and, therefore, the applicant has a right to refer to and rely upon the said deposition to prove his submission regarding absurdity of the complaint.
(122). Mr. Rathore, learned Special Counsel for the State of Rajasthan, has vehemently opposed the submission contending that such an issue cannot be agitated at this stage as it tentamounts to examining the case on merit.
(123). In State Anti-Corruption Bureau, Hyderabad & Anr. vs. P. Suryaprakasam (145), the Hon'ble Apex Court has held that in view of the provisions of Sections 239 and 240 Cr.P.C., at the time of framing of a charge, the trial Court is required to, and can consider, only the police report referred to under Section 173 Cr.P.C. and the documents sent with it. However, in Satish Mehra vs. Delhi Administration & Anr. (146), the Hon'ble Supreme Court observed as under:
"Similar situation arises under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the Code enjoins on the Court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "grounds" may be any valid ground including insufficiency of evidence to prove charge...... The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial-proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code."
(124). Both these judgments have expressed the conflicting views on the same legal issue. Therefore, it is to be examined: which of the said judgments is binding as a precedent u/Art. 141 of the Constitution. The judgment in State Anti-Corruption Bureau (supra) was delivered on 2.5.96 and the case of Satish Mehra (supra) was decided by equal number of Hon'ble Judges on 31.7.96. There is no dispute that the judgment of a Larger Bench, if is in conflict of the judgment of the Smaller Bench, is to be followed. (Vide Union of India vs. K.S. Subramanian (147); State of U.P. vs. Ram Chandra Trivedi (148); General Manager, Telecom vs. A. Srinivasa Rao & Ors. (149); N.S. Girt vs. Corporation of City of Mangalore (150). But in the instant case, both the judgments have been delivered by equal number of Hon'ble Judges of the Supreme Court.
(125). A Constitution Bench of Karnataka High Court in Govindanaik vs. Kalaghatigi West Patent Press Co. Ltd. & Anr. (151), has held that in case there is a conflict in two judgments of the Hon'ble Supreme Court consisting of equal number of Hon'ble Judges, the later of the two decisions should be followed by the High Courts and other Courts. Similar view has been reiterated by the Division Bench of Bombay High Court in Vasant Totaba Hargude & Ors. vs. Dikkaya Muttaiya Rajan (152). In Baker vs. White (153) and Miles vs. Jarvish (154), it was held that a Court may have an option to follow the judgment which is "better in point of law."
(126). But there is another aspect of the matter. The subsequent judgments may also be held to be per incurium and, therefore, the earlier judgment can be held to be binding. The concept "per incurium" has been explained by the Courts from time to time and "per incurium" arc those decisions given in ignorance or forgetfulness of some inconsistent statutory provisions or of some authority binding on the Court concerned. (Vide M/s. Tourist Guide Service vs. B.D.Harsha (155); Mamleshwar Prasad & anr. vs. Kanhaiya Lal (156); A.R. Antuley vs..R.S. Nayak (157); State of Uttar Pradesh vs. Synthetic & Chemicals Ltd. (158); B. Shyama Rao vs. Union Territory of Pondichery (159); Municipal Corporation of Delhi vs. Gurnam Kaur (160); Ram Gopal Baheti vs. Girdhari Lal Soni & Ors. (161); Sarnam Singh & Anr. vs. Deputy Director of Consolidation & Ors. (162) and N.S. Giri (supra).
(127). This aspect requires a serious consideration, particularly in view of the judgment in Union of India vs. Godfrey Philips India Ltd. (163), wherein the Hon'ble Apex Court observed as under:
"We find it difficult to understand how a Bench of two Judge in Jeet Ram's case, AIR 1980 SC 1285, could possibly over- turn or disagree with what was said by another Bench of two Judges in Motilal Sugar Mills' case, (1979(2) SCC 409), they could have referred Jeet Ram's case (supra) to a Larger Bench, but we do not think it was right on their part to express their disagreement with the enunciation of the law by a co-ordinate Bench of the same Court."
(128). More so, in Union of India vs. B.R. Bajaj (164), the Hon'ble Supreme Court, held as under:
"In the instant case the High Court while interferring at the stage of F.I.R. holding that the F.I.R. did not disclose any offence, as a matter of fact, took into consideration several other records produced by respondents Nos. 1 and 2 and also relied on the affidavit filed by Shri Banerjee and also on a letter written by the Director, State Lotteries. This approach of the High Court say the least, to some extent amounts to investigation by the Court whether the offences alleged in the F.I.R. are made out or not..... That being the case, the High Court has grossly erred in quashing the F.I.R. itself when several aspects of the allegations in the F.I.R. had still to be investigated. The learned Judge of the High Court while coming to the conclusion that the allegations in the F.I.R. do not disclose any offence, has taken into consideration several aspects including the guidelines, normal duty of Shri B.R. Bajaj, etc. and when further and investigated whether the offences under Section 120B read with Ss. 418,468 I.P.C. and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act have been made out. Suffice it to say that the learned Judge has treated the whole matter as though it was an appeal against the order of conviction and that should never be the approach in exercising the inherent power under Section 482 Cr.P.C. particularly at the stage of F.I.R. when the same discloses commission of a cognizable offence which had still to be investigated thoroughly by police."
(129). In the said case the High Court had quashed the F.I.R. against Mr. Bajaj on the basis of record produced by the applicant therein after referring to Ch. Bhajan Lal (supra). The Hon'ble Supreme Court held that as the matter was under investigation, High Court should not have quashed the same and especially on the material produced by the petitioner/applicant.
(130). In State of Bihar & Anr. vs. P.P. Sharma, I.A.S. & Anr. (165), the Hon'ble Supreme Court has held as under:
"We do not wish to express any opinion on the rival contentions of the parties based on their respective appreciation of material on the record. We have quoted 'the annexures', the inferences drawn by the High Court and the factual assessment of Mr. Sibal, only to show that the High Court felt into grave error in appreciating the documents produced by the respondents alongwith the writ petitions and further delving into disputed questions of facts in its jurisdiction under Article 226/227 of the Constitution of India."
(131). There is another aspect of the matter. In Satish Mehra (supra), the facts involved had itself been of absurd nature as the dispute had been between husband and wife regarding the custody of the children and husband had obtained the decree of custody of the children from the competent Court in United States but the wife landed in India to the children to award the execution of the said order. The husband filed habeas corpus in Indian Court and as counter blast, the wife filed an F.I.R. making allegations that the husband had sexually assaulted their three years daughter and outraged her modesty and tried to commit rape on her. It was in the special facts and circumstances of the case that such an observation had been made by the Hon'ble Supreme Court.
(132). In State of Madhya Pradesh vs. S.B, Johari & Ors. (166), the Apex Court held that the High Court has committed grave error by appreciating and weighing the material on record for coming to the conclusion whether charge against the accused could have been framed as it runs contrary to the settled legal proposition that at such a stage, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the Court is not permitted to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused.
(133). Similar view had been reiterated in Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijjaya (167).
(134). In Supdt. & Rememberancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja & Ors. (168), the Apex Court held that if an inference of strong suspicion about the commission of an offence can be drawn from material on record, it is enough for the Court to frame the charges and Court may, for this limited purpose, shift the evidence as it cannot be expected even at the initial stage to accept "all that the prosecution states as a gospel truth even if it is opposed to common sense or the broad probabilities of the case." The Court concern is limited to the extent to examine "whether the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence."
(135). In S.B. Johari (supra), the Apex Court held that so far as the charge of conspiracy under Section 120B is concerned, in most of the cases it is only from the available circumstantial evidence that an inference of conspiracy has to be drawn for the reason that it becomes difficult to get direct evidence on such an issue.
(136). Similarly, in Shivnarayan Laxminarayan Joshi & Ors. vs. State of Maharashtra (169), the Apex Court held that since it is impossible to adduce direct evidence of conspiracy, the offence can only be proved largely from the inference drawn from acts or illegal omissions committed by the conspirators in furtherance of a common design. Once such a conspiracy is proved, act of one conspirator becomes the act of the others. A co-conspirator, who joins subsequently and commits overt-acts in furtherance of the conspiracy, must also be held liable.
(137) Therefore, in view of the above, I am of the considered opinion that as the judgment in Satish Mehra (supra) is not applicable, and, therefore, contentions raised by Mr. Barot lack merit. This Court cannot assume the jurisdiction either of the trial Court or appellate Court and appreciate the evidence, the exclusive role assigned to the said Courts, in the inherent jurisdiction of this Court.
(138). In view of the above, I do not find any force in the submissions made on behalf of the applicants. After investigating the matter further, the Rajasthan Police has preferred the charge-sheet before the Special Judge (N.D.P.S. Cases), Jodhpur and the matter is pending before the Competent Court and the said Court has to decide as: whether further action is required or not, and if yes, in what manner. The applications are devoid of any merit and are hereby dismissed.
(139). It is hereby clarified that any observation made hereinabove shall not adversely affect either of the parties and the same should be treated to have been made, if any, for deciding these applications and they do not have reflection on the merit of the case.