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PETITIONER: STATE OF BIHAR ETC. ETC.

       Vs.

RESPONDENT: P.P. SHARMA, IAS AND ANR.

DATE OF JUDGMENT02/04/1991

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) RAMASWAMY, K.

CITATION:  1991 AIR 1260            1991 SCR  (2)   1  1992 SCC  Supl.  (1) 222 JT 1991 (2)   147  1991 SCALE  (1)539

ACT:       Constitution  of India, 1950: Article 226-High  Court- When  and  under what circumstances would  be  justified  to quash  charge  sheet before cognizance of offence  taken  by criminal court.       Code  of  Criminal Procedure:  Sections,  173,194,197- Investigation-Powers  of Police-Intereference by Court  when arises.

HEADNOTE:       The   Bihar   State   Co-operative   Marketing   Union (BISCOMAUN)  is  the  sole  purchaser  and  distributor   of fertilizers  in  the State.  When the BISCOMAUN was  at  the brink  of  liquidation  due  to  mismanagement,  the   State Government  superseded its Board of Directors and  appointed R.K.  Singh,  I.A.S.,  as  its  Administrator  and  Managing Director on July,30,1988.       In  the  course of the discharge of his  duties,  R.K. Singh noted that financial irregularities had been committed by P.P. Sharma, the first respondent, Genesh Dutt Misra, the second  respondent, and Tapeshwar Singh, in the purchase  of fertilizers for distribution in the State.   At the relevant time,  P.P. Sharma was the managing Director  of  BISCOMAUN, Genesh  Dutt  Misra  its advisor, and  Tapeshwar  Singh  its Chairman.       R.K.   Singh  laid  the  information   regarding   the financial  irregularities before the Station House  Officer, Gandhi  Maidan Police Station, Patna on  September  1, 1988. The substratum of the accusations made against them was that they  had  conspired with the  Rajasthan  Multi  Fertilizers Private  Limited,  through its partners, to  cause  wrongful gains  to the company and wrongful loss to the BISCOMAUN  in the matter of purchase of sub-standard fertilizers from  the Company.       On  the  basis of the report, a  case  under  sections 409,420,468,469,471,120B,  I.P.C.,  and  section  7  of  the Essential  Commodities  Act, was  registered  against  eight persons  including Tapeshwar Singh, P.P. Sharma, and  Ganesh Dutt Misra.  Four other accused persons were the partners of the  Company,  and  the fifth one was an  Assistant  in  the                                                        2

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department who was alleged to have forged the test reports.       The investigation in the case was completed by  police and two police reports, one under section 7 of the Essential Commodities Act and the other under various sections of  the I.P.C., were submitted before the Competent Court in October 1988.   The Special Judge Patna heard the arguments  of  the parties  on  various  dates between  January  9,  1989,  and January  31,  1989 on the question as to whether  there  was sufficient   material   in  the  police  reports   to   take cognizance  of  various  offences  projected  therein.    On January  31,  1989 the learned Special Judge  concluded  the arguments and reserved the orders.       Tapeshwar  Singh and P.P. Sharma filed writ  petitions before  the  Patna High Court praying for  quashing  of  the First  Information Report and the police reports.  The  High Court allowed the writ petitions and quashed the FIR and the criminal proceedings against the accused petitioners.       The High Court, on appreciation of the documents which were produced before it, as annexures to the writ petitions, came to the conclusions that no prima facie offence was made out  against  the respondents; that  though  the  annexures, being  part of BISCO-records, were to the knowledge of  R.K. Singh,  he closed his eyes to the facts contained  in  these documents and acted in a mala-fide manner in lodging of  FIR against the respondents on false facts; that the prosecution was vitiated because G.N. Sharma, the Investigating officer, acted  with  malice in refusing to take the  annexures  into consideration; and that no case under Essential  Commodities Act was made out from the police reports and other documents on  record.  The High Court further held that the  composite order  granting  sanction  under  section  197  Cr.P.C.  and section  15-A of the Essential Commodities Act was  vitiated because  of  non  application of mind on  the  part  of  the competent  authority;  and that the F.I.R.  and  the  Charge Sheets violated the constitutional mandate under Article  21 of the Constitution.       The  instant appeals are against the judgment  of  the High  Court,  and the appellants are Girija  Nandan  Sharma, S.P.  CID,  Patna,  the investigator, and  R.K.  Singh,  the informant, along with the State of Bihar.       Before  this Court it was contended on behalf  of  the appellants  that  the  High Court in  the  exercise  of  its extraordinary jurisdiction committed a grave error in taking into  consideration  the  affidavits  and  docu-                                                        3 ments  filed  alongwith the writ petitions; the  High  Court virtually usurped the jurisdiction of the Magistrate/Special Judge by appreciating the affidavits and documents  produced before  it and reaching conclusions contrary to the  charge- sheets  (police reports) submitted by the police;  the  High Court  was not justified in quashing the proceeding  at  the stage  when the Special Judge was seized of the  matter  and was in the process of appreciating the material contained in the  police reports; and that the allegations if the  police reports, if taken as correct, disclosed the commission of  a cognizable offence by the respondents.       On   the  other  hand,  it  was  contended  that   the prosecution  against  the  respondents was  initiated  as  a result   of  malice  on  the  part  of  informant  and   the investigating officer; and the mala-fides on the part of the informant  and the investigating officer was  writ-large  on the   facts of the case, that the composite  order  granting sanction  under section 197 Cr.P.C. and section 15-A of  the Essential  Commodities  Act  was vitiated  because  of  non- application of mind on the part of the competent  authority;

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and   that   when   the  evidence   collected   during   the investigation  was  not unimpeachable, the  prosecution  and continuance  of  the proceedings offended  the  respondents’ right  to life and livelihood enshrined under Article 21  of the constitution.       Allowing  the appeals, setting aside the  judgment  of the  High Court and dismissing the writ petitions  filed  by the respondents before the High Court & this Court.       HELD : Per Kuldip Singh, J.       (1)  The  High Court fell into grave error  and  acted with patent illegality in quashing the criminal  proceedings on the basis of the findings which were wholly wayward.[29D]       R.P.  Kapur  v.  State of  Punjab,[1960]  3  SCR  388, referred to.       (2)   The  High  Court  erred  in   appreciating   the annexures/documents, which were produced by the  respondents along  with  their  writ petitions,  and  further  erred  in delving  into  disputed questions of fact  while  exercising jurisdiction under Article 226/227 of the Constitution.[24E]       (3)  By treating the annexures which were neither part of   the  police  reports  nor  were  relied  upon  by   the Investigating Officer, as evidence, the High Court converted itself  into a trial court.  The High Court could  not  have assumed  this jurisdiction and put an end to the                                                        4 process  of investigation and trial provided under the  law. [28E]       (4)   The  question  of mala-fide  exercise  of  power assumed significance only when the criminal prosecution  was initiated   on   extraneous  considerations   and   for   an unauthorised purpose. [24G]      (5)      The  allegations  of  mala-fide  against   the informant  based on the facts after the lodging of  the  FIR were  of  no  consequence and could not  be  the  basis  for quashing the proceedings. [25D]       (6)  There was no material whatsoever in this case  to show that on the date when the FIR was lodged by R.K.  Singh he  was  activated  by  bias  or  had  any  reason   to  act maliciously.   The dominant purpose of registering the  case against  the respondents was to have an investigation   done into  the allegations contained in the FIR and in the  event of  there  being  sufficient  material  in  support  of  the allegations  to present the charge-sheet before  the  court. There  was no material to show that the dominant object  of registering the case was the character assassination of  the respondents or to harass and humiliate them. [24H-25A]       When  the information is lodged at the police  station and  an  offence  is  registered,  the  mala-fides  of   the informant  would  be  of secondary importance.   It  is  the material  collected during the investigation  which  decides the fate of the accused person. [25B]       State of Bihar v. J.A.C Saldhana & Ors.,[1980] 2SCR 16 and  State of Haryana v. Ch. Bhajan Lal, J.T.  (1990)4  S.C. 655, referred to.       (7) When the police report under section 173 Cr.  P.C. had to go through the judicial scrutiny, it was not open  to the  High  Court to find fault with the same on  the  ground that certain documents were not taken into consideration  by the investigating officer. [25G]       (8)  Simply because the Investigating  Officer,  while acting  bona fide ruled out certain documents as  irrelevant, it was no ground to assume that he acted mala-fide.[25E]       (9) The sanction under section 197 Cr. P.C. was not an empty  formality.   It  was essential  that  the  provisions therein were observed with complete strictness.  The  object

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of  obtaining  sanction  was that  the  authority  concerned should  be able to consider for itself the  material  before the  investigating officer, before it came to the conclusion that  the prosecution in the circumstances be sanctioned  or forbidden.  To com-                                                        5 ply  with  the provisions of section 197 it must  be  proved that  the  sanction  was  given  in  respect  of  the  facts constituting the offence charged.  It was desirable that the facts  should  be referred to on the face of  the  sanction. [28E]       (10) Section 197 did not require the sanction to be in any particular form.  If the facts constituting the  offence charged  were not shown on the fact of the sanction, it  was open  to  the prosecution, if challenged,  to  prove  before court  that those facts were placed before  the  sanctioning authority.  It should be clear from the form of the sanction that  the  sanctioning  authority  considered  the  relevant material  placed before it and after a consideration of  all the  circumstances of the case sanctioned  the  prosecution. [28F]       (11)  In  the  present  case  the  investigation   was complete on the date of sanction and police reports had been filed before the Magistrate.  The sanctioning authority  had specifically mentioned in the sanction order that the papers and the case diary had been taken into consideration  before granting the sanctions. [28G]       (12)   Case diary was a complete record of the  police investigation.   It contained total material in  support  or otherwise  of  the allegations.  The  sanctioning  authority having  taken the case diary into consideration  before  the grant  of sanction, it could not be said that there  was  no application   of  mind  on  the  part  of  the   sanctioning authority.[28H-29A]       (13)   The findings of the High Court that no  offence was  made  out against the respondents under  the  Essential Commodities  Act was also based on the appreciation of  ‘the annexures’  and  other disputed facts on the record  and  as such was untenable for the same reasons. [29C]       Per K. Ramaswamy, J.       (1)   Grossest error of law has been committed by  the High  Court  in  making  pre-trial of  a  criminal  case  in exercising  its  extraordinary jurisdiction  under  Art.226. [49B]       State of West Bengal v. Swaran Kumar, [1982] 3 SCR 121 and  Madhaorao J. Scindia v. Sambhaji Rao, [1988] 1 SCC  692 distinguished.       (2)  Quashing the Charge Sheet even before cognizance is  taken  by a criminal Court amounts to "killing  a  still born  child".  Till the criminal court takes  cognizance  of the offence there is no criminal proceeding pending. [48C]                                                        6       (3)  The arms of the High Court are long enough,  when exercising its prerogative discretionary power under Art.226 of the constitution, to reach injustice wherever it is found in  the judicial or quasi-judicial process of any  Court  or Tribunal  or authority within its jurisdiction.  But  it  is hedged with self imposed limitation. [32C]       (4)  The Code of Criminal Procedure, 1973 gives to the police unfettered power to investigate all cases where  they suspect  a  cognizable offence has been  committed.   In  an appropriate  case  an  aggrieved person can  always  seek  a remedy  by invoking the power of the High Court  under  Art. 226 of the Constitution.  If the court could   be  convinced that  the  power of investigation has been  exercised  by  a

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police  officer  mala  fide,  a  mandamus  could  be  issued restraining  the  investigator to misuse his  legal  powers. [35B]       S.N. Sharma v. Bipen Kumar Tiwari & Ors., [1970] 3 SCR 945; State of Bihar & Anr. v. J.A.C. Saldanha & Ors., [1980] 1  SCC 554; State of West Bengal v. Sampat Lal,[1985] 1  SCC 317;  Municipal  Corporation  of Delhi  v.  Purshottam  Dass Jhunjunwala & Ors., [1983] 1 SCC 9 and Abhinandan Jha & Ors. v. Dinesh Mishra, [1967] 3 SCR 668, referred to.       (5)   The function of the judiciary in the  course  of investigation by the police should be complementary and full freedom  should be accorded to the investigator  to  collect the  evidence connecting the chain of events leading to  the discovery of the truth, viz., the proof of the commission of the crime. [37D]       King Emperor v. Khwaja Nazir Ahmad, 76 Indian  Appeals 203  and  Jamuna  Chaudhary  v. State of Bihar,  3  SCC  774 (1974), referred to.       (6) The determination of a plea of mala fide  involves two  questions, namely (i) whether there is a personal  bias or  an oblique motive; and (ii) whether  the  administrative action   is  contrary  to  the  objects,  requirements   and conditions  of  a valid exercise  of  administrative  power. [38E]       (7)   A  complainant when he lodges a  report  to  the Station House Officer accusing a person of commission of  an offence, often may be person aggrieved, but rarely a probono publico.   Therefore,  inherent animosity is  licit  and  by itself is not tended to cloud the veracity of the accusation suspected  to have been committed, provided it is  based  on factual foundation. [39A-B]                                                        7       (8)   The person against whom mala fides or  bias  was imputed should be impleaded co-nominee as a party respondent to  the proceedings and given an opportunity to  meet  those allegations.   In  his/her  absence no  enquiry  into  those allegations would be made.  Otherwise it itself is violative of  the  principles  of natural justice, as  it  amounts  to condemning  a  person without an  opportunity.   Admittedly, both R.K. Singh and G.N. Sharma were not impleaded.  [40A-B]       (9) The finding of the High Court that the mala  fides of   the  Investigating  Officer  was  established  by   the subsequent   conduct  of  his  participation  in  the   writ proceedings  was obviously illegal.  When the  investigation was  subject matter of the challenge in the court, it  would be  obvious  that the investigator alone was to  defend  the case; he had to file the counter affidavit and to appear  in the proceedings on behalf of the State. [41F]       State of Bihar v. J.A. Saldana, AIR 1980 SC326.       (10) Before countenancing allegations of mala fides or bias  it is salutory and an onerous duty and  responsibility of  the  court not only to insist upon making  specific  and definite  allegations  of  personal  animosity  against  the Investigating Officer at the start of the investigation  but also must insist to establish and prove then from the  facts and circumstances to the satisfaction of the court.  [42D]       (11)   Mere assertion or a vague or bald statement  of mala  fides  was not sufficient.  It  must  be  demonstrated either  by  admitted  or  proved  facts  and   circumstances obtainable in a given case.  [38F]       (12)  Malice  in law could be inferred from  doing  of wrongful act intentionally without any just cause or  excuse or without there being reasonable relation to the purpose of the exercise of statutory power.  [42G]       (13)   Malice  in  law is  not  established  from  the

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omission  to consider some documents said to be relevant  to the accused.  Equally, reporting  the commission of a  crime to  the  Station  House  Officer cannot  be  held  to  be  a colourable  exercise  of power with bad faith  or  fraud  on power. [42H]       (14)   The findings of the High Court that F.I.R.  got vitiated  by the  mala fides of the Administration  and  the charge  sheets  were the results of the mala  fides  of  the informant or investigator, to say the least, was                                                        8 fantastic and obvious gross error of law. [43C]       State  of Haryana v. Bhajanlal,J.T. (1990) 4  SC  655, referred to.       (15) An investigating officer who is not sensitive  to the  constitutional mandates, may be prone to  trample  upon the personal liberty of a person when he is actuated by mala fides.   But the accused at the earliest should bring to the notice of the court of the personal bias and his  reasonable belief that an objective investigation into the crime  would not be had at the hands of the investigator by pleading  and proving  as of facts with necessary materials facts.  If  he stands by till the chargesheet was filed, it must be assumed that  he  had waived his objection.  He  cannot  turn  round after  seeing the adverse report to plead the  alleged  mala fides. [43H-44A]       (16)  The  finding of the High Court that  the  F.I.R. charge-sheet violated the constitutional mandate under  Art. 21 was without substance.[44B]       (17)  The order of sanction is only an  administrative act  and not a quasi judicial nor alis involved.  The  order of  sanction  need not contain detailed reasons  in  support thereof.   But the basic facts that constitute  the  offence must  be apparent on the impugned order and the record  must bear out the reasons in that regard. [46H-47A]       (18)  Filing of charge-sheet before the court  without sanction  per se is not illegal, not a condition  precedent. At  any time before taking cognizance of the offence  it  is open  to the competent authority to grant sanction  and  the prosecution  is entitled to produce the order  of  sanction. [47E]       State of U.P. v. R.K. Joshi,[1964] 3 SCR 71,  referred to.       (19)  Proper application of mind to the existence of a prima  facie  evidence of the commission of the  offence  is only  a pre-condition to grant or refuse to grant  sanction. The question of giving an opportunity to the public  servant at that stage does not arise. [47B]       (20)    A  perusal  of  the  sanction  order   clearly indicates that the Govt. appears to have applied its mind to the  facts  placed before it and considered  them  and  then granted sanction. [47E]       (21)  The prior sanction by the appropriate Government is an                                                        9 assurance  to  a public servant to  discharge  his  official functions diligently, efficiently and honestly without  fear or   favour,   without  haunt  of   later   harassment   and victimization,  so  that  he would serve  his  best  in  the interest of the public. [45G]       Sirajuddin  v.  State  of  Madras,  [1970]  2SCR  931, referred to.       (22)   The public servant can only be said to  act  or purported  to act in the discharge of his official  duty  if his  act or omission is such as to lie within the  scope  of his  official duty.  It is not every offence committed by  a

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public  servant that requires sanction for prosecution,  nor even every act by him while he actually engaged under colour of   his  official  duty  that  receives   protection   from prosecution.[46B]       The  offending act must be integrally  connected  with the  discharge  of  duty  and  should  not  be  fanciful  or pretended. [45G]       K.  Satwant Singh v. State of Punjab,[1960] 2 SCR  89; Harihar  Prasad v. State of Bihar, [1972] 3 SCR 89 and  S.B. Saha v. Kochar [1980] 1 SCC 111.       (23)   Before granting sanction the authority  or  the appropriate  Govt. must have before it the necessary  report and  the  material  facts which prima  facie  establish  the commission  of offence charged for and that the  appropriate Government would apply their mind to those facts. [46G]

JUDGMENT:       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 527-28 of 1990       From  the  Judgment and Order dated  5.4.1990  of  the Patna High Court in Crl. W.J.C. Nos. 90 and 228 of 1989.                             WITH       CRIMINAL APPEAL NOS. 523-248, 525-26/90       Kapil  Sibal, Additional Solicitor General, P.P.  Rao, P.K. Shahi, Mrs. Vimla Sinha, Yunus Malli, Vikash Singh  and L.R. Singh for the Appellants.       Dr.  Shankar Ghose R.K. Jain, Rakesh K. Khanna,  Surya Kant,  Rajan Mahapatra, Mrs. Sangeeta Tripathi Mandal,   Ms. Abha Sharma, Dr. S. Jha and R.P. Gupta for the Respondents.       The Judgment of the Court was delivered by                                                        10 KULDIP SINGH, J. The Bihar State cooperative Marketing Union Limited  (BISCOMAUN)  ( hereinafter called  ‘BISCO’)  is  an apex  body  operating  in  the State  of  Bihar.   It  is  a federation of Cooperative Societies and its primary function is  to supply fertiliser to farmers through its  depots  and godowns numbering about 550, spreadover the State of Bihar.       Shri  P.P. Sharma, IAS took over as Managing  Director of  BISCO  on May 26, 1986 and continued to  hold  the  said office till June 14, 1987.  From December, 31, 1986 to  June 14,  1987 he was also Secretary, Department of  Cooperative, Government  of Bihar and Registrar,  Cooperative  Societies, State of Bihar. G.D. Mishra was working as Advisor to  BISCO during 1986-88.  He resigned from the said post on August 3, 1988.  It may be mentioned that one Tapeshwar Singh was  the Chairman of BISCO during the above said period.       M/s. Rajasthan  Multi Fertiliser Pvt.  Ltd.,  Udaipur, Rajasthan  (hereinafter  called the ‘firm’)  was  holding  a Certificate of Registration issued on August 8, 1985 by  the Director of Agriculture, Bihar.  It is alleged that a letter dated  August  19,1986  was addressed by  the  firm  to  the Managing Director of BISCO offering to supply fertiliser  of specified  grade  and quality at Rs.2550 per MT  plus  local taxes.   It  may be mentioned that the State  of  Bihar  had issued a notification dated July 14, 1984 fixing the  prices for different grades of fertilisers.  The price of the grade offered  by the firm was fixed at Rs. 2559 per MT under  the said notification.  The firm sent another letter on  October 5, 1986 repeating its offer contained in its earlier letter. The  offer of the firm was accepted and  G.D.   Mishra,   on November 22, 1986, placed an order with the firm  for supply of  2500 MT of fertiliser (NPK 15:15:72) at Rs. 2509.50  per MT.   Thereafter G.D. Mishra placed further order  with  the

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firm  on December, 19, 1986 for additional supply of 408  MT of fertiliser on the same terms.   The firm supplied 2916 MT of  fertiliser to BISCO.  The total price to be paid to  the firm  was Rs. 73,16,244.  Rs.23.03 lac was paid on  December 18,  1986.   Thereafter Rs. 30.96 lac was  paid  on  January 22,1987.   Thus a total sum of about Rs. 54 lac was paid  to the  firm.   The samples of the fertiliser supplied  by  the firm  were  got tested by BISCO  from  Rajendra  Agriculture University, Pusa which were found to be standard.       It  is  the  admitted case of  the  parties  that  the fertiliser  supplied  by the firm could not be sold  to  the farmers and huge stock kept on lying in the godowns of BISCO for  long  time.  The BISCO  was  manufacturing  "Harabahar" brand of fertiliser at its two factories.  It wa ulti-                                                        11 mately  decided by the BISCO that the fertiliser  which  was supplied  by  the firm and which was lying  in  the  godowns unsold  be  used  as raw material for  the  manufacture   of "Harabahar"  fertiliser.   The  fertiliser  was   thereafter shifted  from various godowns of BISCO to its two  factories for conversion into "Harabahar".       The  reports  received  from  the  State   Laboratory, Mithapur  showed the fertiliser supplied by the firm  to  be sub-standard.    Majority  of  the  samples  sent   to   the laboratory for testing were found to be sub-standard.  It is alleged  that G.D. Mishra on behalf of BISCO wrote a  letter dated  October 13, 1987 to the firm requesting to take  back the  sub-standard fertiliser from eight depots mentioned  in the said letter.       Shri  R.K.  Singh,  IAS took over the  charge  as  the Managing  Director  of  BISCO on  December  29,  1988.   The management of BISCO was superseded by an order of the  State Government  dated July 30,1988 and R.K. Singh was  appointed as an Administrator.       On  September 1,1988 R.K. Singh sent a written  report to the Station House Officer, Police Station Gandhi  Maidan, Patna on the basis of which a case under Sections 409,  420, 468,   469,  471,  120B  I.P.C.  and  7  of  the   Essential Commodities   Act  was  registered  against  eight   persons including  Tapeshwar  Singh, P.P. Sharma  and  G.D.  Mishra. Four other accused persons are the directors of the firm and the  fifth  one is alleged to have forged  the  test  report given  by  the Rajendra Agricultural University,  Pusa.   It would   be useful to reproduce the First Information  Report (hereinafter called ‘FIR’) hereinafter :                  "FIRST INFORMATION REPORT"            BIHAR STATE COOPERATIVE MARKETING UNION LTD.      BISCOMAUN  BHAWAN, WEST GANDHI  MAIDAN,  PATNA-800001           Ref. No. AD/c-70                        1.9.1988                The Officer Incharge, Patna Kotwali P.S.                BISCOMAUN   is   an   institution   in    the           Cooperation  Sector  and one of its main  business           activities is to purchase fertilisers and to  sell           it  through   its  depots to the  farmers  of  the           State.   It owns two factories-one at Tilrath  and           the                                                        12           other   at   Jasidih,   which   produce    mixture           fertiliser.   It is marketed in the brand name  of           "HARABAHAR".                          In course of checking of the  stock           of  fertilisers  lying in the various  godowns  of           BISCOMAUN  and position of raw materials   in  the           factories, ‘it was detected that huge quantity  of           unsold ‘Suraj Brand N.P.K.’ mixture fertiliser was

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         lying  in the depots of BISCOMAUN which was  being           sent to the fertiliser factories of BISCOMAUN   to           be  used  as raw-material in  the  manufacture  of           ‘HARABAHAR ’ (mixture fertiliser).  On perusal  of           the  relevant  files, it  transpired  that  ‘Suraj           Brand  N.P.K.’ was purchased from a  private  firm           namely  M/s Rajasthan Multi Fertiliser Pvt.  Ltd.,           Udaipur (Rajasthan).  It is also evident from  the           relevant  records that the entire transaction  for           the purchase of the ‘Suraj Brand N.P.K.’ from  the           said  firm and its utilisation in the  manufacture           of  HARABAHAR was fraudulent and a conspiracy  for           wrongful  gain to M/s Rajasthan  Multi  Fertiliser           Pvt. Ltd. and erstwhile Chairman of BISCOMAUN, Sri           Tapeshwar Singh and some officers responsible  for           the  purchase of said sub-standard fertiliser  and           wrongful  loss to the institution as well  as  the           farmers  of  the State of Bihar".   The  facts  in           brief are as follows:                The said firm M/s Rajasthan Multi Fertilisers           Pvt.   Ltd.  wrote  a  letter  to  the   Chairman,           BISCOMAUN  enclosing  its previous letter  to  the           Managing  Director,  BISCOMAUN ,  stating  therein           that they were manufacturing fertilisers under the           brand  name  of ‘Suraj  Brand  N.P.K.’  (15:15:72)           mixture fertiliser and they should be favored with           orders for supply of the same to BISCOMAUN.   They           quoted  the selling rate as Rs.2550 per M.T.  plus           taxes.  The letter was not received in the  normal           course  in the office, but was handed over  direct           to the then Chairman.  It is also to be noted that           the  said  letter  was  not  in  response  to  any           advertisement of BISCOMAUN inviting offers.                The Chairman endorsed this letter to Managing           Director.   This  letter was not allowed  to  come           down  to the office for examination in the  normal           course.    On  this  letter,  the   then   Advisor           (Rehabilitation)  Shri G.D. Mishra  initiated  the           file  at his own level and put up a proposal  from           his                                                        13           own level for the purchase of the said  fertiliser           from the said firm.  He has mentioned in his  note           that  the question of purchase had been  discussed           between  himself  and the  Chairman  and  Managing           Director.   It  is  clear that  the  proposal  for           purchase   was  put  up  in  pursuance   to   that           discussion,  after the meeting of minds had  taken           place  to order the purchase.  Nobody else in  the           organisation was taken into confidence about  this           proposal.   Even  the advice of Finance  was   not           taken.                This proposal initiated by Shri G.D.  Mishra,           Adviser (Rehabilitation) was endorsed by the  then           Managing  Director,  Sh.  P.P.  Sharma,  for   the           approval  of  the Chairman and  the  proposal  was           approved by the Chairman.                "No  tenders  were called for nor  any  steps           were  taken to ascertain the competitive prices of           similar  type of fertiliser.  Even the quality  of           the  fertiliser was not tested before issuance  of           purchase  order.   All this was  done  in  extreme           haste."                The proposal was accepted on 20.11.1986,  and           the  adviser (Rehabilitation (through  his  letter

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         dated  22.11.1986  placed an order for  supply  of           2500 mts of fertiliser to the firm.                One  of  the conditions of the  purchase  was           that  the  said fertiliser will  contain  nutrient           value  in proportion 15:15:72 and if it was  found           that  the nutrient value is less than  the  above,           the  consignment will be rejected.   The  Chemical           examination   was  to  be  done  either   in   the           laboratory  of BISCOMAUN or any  other  laboratory           approved by the State/Central Government. Contrary           to this condition, the chemical examination of the           fertiliser is said to have been carried out by one           Dr. S.N. Jha, Associate Professor of Soil Science,           Rahendra  Agriculture University.  It is also  not           clear  from the records that by whom  the  samples           were  collected  and  sent  to  the  said  expert.          According  to Fertiliser Control Order,  1957,  the          sample   must  be  collected  by   the   Fertiliser          Inspectors of the State Government and an  analysis          must   be  conducted  in  the  laboratory  of   the          State/Central  Government.  Dr. Jha  reported  that          the samples analysed by him was of the proper grade          and standard con-                                                        14           taining nutrient in the proportion of 15:15:72.                The  said fertiliser was distributed  to  the           different   depots  of  BISCOMAUN.   Against   the           decision  to purchase 2500 mts. the  then  Adviser           (Rehabilitation)  Shri G.D. Mishra  gave  dispatch           instruction  for 2916 mts. to the said  firm.   It           needs  to be pointed out that the  said  Rajasthan           Multi   Fertilisers  Pvt.  Ltd.  had   no   E.C.A.           Allocation  for  sale of their product  in  Bihar.           Even  then,  the management  of  BISCOMAUN  placed           orders   for  supply  of  fertilisers  with   this           company.                When  the sales of the fertiliser  commenced,           samples  were  taken from various  depots  in  the           normal  course by the fertiliser  Inspectors,  who           are officers of the Agriculture Department through           out   the  State  and  sent  to   the   authorised           laboratories   for  chemical   examination.    The           analysis   revealed that the said  fertiliser  was           spurious  and of sub-standard quality and  lacking           in  nutrient value.  Copies of the result  of  the           chemical analysis are enclosed.  The samples  were           taken from BISCOMAUN depots of Benibad,  Gangaiya,           Bochaha,   Dholi,   Sakra,   Minapur   (all   from           Muzaffarpur)   Bihta,   Bakhtiarpur,   Karbighaiya           (Patna), (Jahanabad).                As  per  the  terms  of  purchase,  the  said           spurious  fertiliser was to be taken back  by  the           manufacturer at their own cost.  Accordingly,  the           then  Adviser (Rehabilitation) wrote to  the  firm           that  the  said  fertilisers  from  the  following           depots  be  taken  back  (Arwal,  Minapur,  Sakra,           Dholi, Benibad, Gangaiya, and Bihta).  It is to be           noted that wherever the samples of fertiliser were           analysed  they  were  found  to  be  sub-standard.           Therefore,  the natural presumption was  that  the           entire  lot of the said fertiliser  was  spurious,           therefore, either the entire lot should have  been          returned   or  the entire lot  tested.  Instead  of          this,  the  fertiliser from  only the  depots  from          which  the samples were taken were directed  to  be

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        returned.  ‘This was a mala fide act on the part of          the Adviser (Rehabilitation) Shri G.D. Mishra, with          an intention to cause wrongful gain to the supplier          and  wrongful loss to the Biscomaun as well  as  to          the farmers of the State.  As a matter of fact,  he          allowed sale of spurious sub-standard fertiliser to          the farmers of the State from the                                                        15           depots, where from samples were not taken.’                There was undue haste in making payment.  The           said Rajasthan Multi-Fertiliser Pvt. Ltd. was paid           Rs.23.02 lacs vide sanction dated 17.12.1986.  The           payment  was released inspite of the fact that  it           was pointed out in challan No. 206 and 209 by  the           Depot  Manager  that the Fertilisers were  not  in           granulated form and the bags were non-standard.  A           further  proposal  for  payment  was  put  up   in           December-January,  1986-87.  Again it was  pointed           out by the Accountant that the test report was not           received.  It was also again pointed out that  the           supplies  were  made  in  unstandard  bags.    The           Adviser  (Rehabilitation)  Shri  G.D.Mishra  over-           ruled  this  objection  and  recommended  to   the           Managing  director that not only the said bill  of           Rs.  13.07 lacs be paid but also two bills of  Rs.           12.03  lacs and Rs.5.83 lacs, which had  not  been           examined  by the accounts also be paid.  This  was           in  january,  1987.   So in  fact  the  fertiliser           Company  was  paid Rs. 23.02 + Rs. 30.94  lacs  in           January,  1987 itself.  In all, out of  the  total           bill     (after     deducting     shortage)     of           Rs.65,53,642.11, Rs. 53,97,277.32 had been paid to           the company.               The  reports of  the  fertiliser  being   sub-          standard started coming from May, 1987.  On the 2nd          May,  1987,  the PEO Bihta informed that  the  said          Suraj  Brand fertiliser was found  sub-standard  on          chemical  analysis.   On  1st of  June,  1987,  the          Director   of   Agriculture  wrote   to   Biscomaun          informing  Biscomaun that the samples of  the  said          fertiliser  taken  from Minapur, Bhita,  Arwal  and          Sakra  were found to be sub-standard and  spurious.          On 18.5.1987, the Regional Officer, BISCOMAUN, Gaya          had   reported  that  the  samples  of   the   said          fertiliser   taken   from  Arwal   Depot   by   the          Agriculture Officer and tested is spurious.               When  reports of the the Chemical analysis  by          the  State Laboratory started coming in and it  was          found  that  the said fertiliser was  spurious  and          sub-standard, the then Management of Biscomaun made          a  conspiracy  to consume the  spurious  fertiliser          instead  of  returning it to the  manufacturer  and          claiming back the money paid.                It  has been clarified above that as per  the           terms of the                                                        16           purchase,  the  entire fertiliser of  Suraj  Brand           ought  to  have been returned to the  company  and           refund taken.  Instead of this, in order to  cause           wrongful gain to the company and wrongful loss  to           Biscomaun  and the then Management, as well as  to           remove  the  evidence  of the  stock  of  spurious           fertilisers, the then Management of Biscomaun took           a decision to reprocess old stock of fertiliser in           the  two  factories of Biscomaun  at  Tilrath  and

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         Jasidih.  It was proposed to the Board that  these           fertilisers in the stock of Biscomaun depot, which           were very old and difficult to sell should be used           in   these  two  factories  for   manufacture   of           Harabahar.  This proposal was put up to the  Board           on March, 1987.  The Board approved this proposal.                It  is  to  be  noted  that  the  Board  only          approved  the proposal to reprocess the  old  stock          and  as the stock of Suraj Brand was not  old  one,          again  to  suite their end, a proposal  was  mooted          before  the  Executive Committee in  May,  1987  to          reprocess all the stock lying in depots, which  was          approved.  The Executive Committee could not modify          the decision taken by the Board of Directors.   The          said Suraj Brand fertiliser could not be said to be          an  old  stock  because it was  purchased  only  in          December,  1986.  Apart from that, as soon  as  the          fertiliser  was  proved to be  substandard  by  the          State  Laboratory, Biscomaun should have  recovered          the amount paid to the company.                However,  on  the  said  Executive  Committee           decision,  the management of Biscomaun along  with           old stock fertiliser also started transferring the          said Suraj Brand fertiliser to the two factories so          that  it  could  be converted  into  Harabahar  and          consumed.  It is to be noted that out of 2900  mts.          2500   mts.  had  remained unsold  by  June,  1987.          Stocks proved to be spurious and sub-standard  were          transferred  to the Biscomaun factories at  Tilrath          and Jasidih for being converted into Harabahar. The          said  Suraj Brand material from  Benipad,  Bochaha,          Gangaiya(Muzaffarpur)  from where samples had  been          taken  and  fertiliser proved to be  spurious  were          transferred  to  the fertiliser factories.   It  is          clear  that the entire reprocessing gimmick  was  a          conspiracy  to  cause  unlawful gain  to  the  said          Rajasthan  Multi-Fertiliser Pvt. Ltd. and  unlawful          personal gain to the persons involved by  consuming          spurious fertiliser                                                        17           supplied  by  them thereby also  causing  wrongful           loss  to Biscomanun and the farmers of the  State.           Not only that the aforesaid serious offences  were           committed,   but  the  provisions  of   Fertiliser           Control   Order,  1957  were  also   violated   by           supplying spurious and sub-standard fertilisers.                It  is,  therefore, manifest  from  aforesaid           facts that the then Chairman, Sri Tapeshwar Singh,           Managing   Director   Shri   B.P.   Sharma,   Shri           G.D.Mishra had entered into a criminal  conspiracy           with  Shri O.P.Agarwal, M.D. Narayan Lal  Agrawal,           Banshi Lal Agrawal and Gopal Lal Agrawal, Director           of Rajasthan Multi Fertilisers Pvt. Ltd. and  thus           Biscomaun was cheated of Rs.53,97,277.32.      Tapeshwar  Singh and P.P.Sharma accused  persons  filed Writ  Petition 289 of 1988 on September 29, 1988 before  the Patna  High Court with a prayer that the  First  Information Report  be quashed. The petition was adjourned to  different dates  on  the request of the counsel for  the  petitioners. Meanwhile the investigation in the case was completed by the police  and two police reports, one under Section 7  of  the Essential  Commodities  Act  and  the  other  under  various section  of the I.P.C., were submitted before the  Competent Court  in October, 1988. the Special Judge, Panta heard  the arguments of the parties on various dates between January 9,

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1989  and  January 31, 1989 on the question  as  to  whether there was sufficient material in the police-reports to  take congnizance  of  various  offences  projected  therein.   On January  31,  1989 the learned Special Judge  concluded  the arguments and reserved the orders.      Tapeshwar  Singh filed Criminal Miscellaneous  Petition in  the  High  Court on February 17, 1989.  the  High  Court stayed  further proceedings in the court of  Special  Judge, patna.  P.P.Sharma filed writ petition 90 of 1989  in  Patna High  Court  on March 17, 1989 praying for quashing  of  the First  Information Report and the police-reports.  The  high Court  admitted  the  writ petition on March  31,  1989  and stayed  further proceedings in the Court below. On  July  6, 1989   P.P.Sharma  withdrew  writ  petition  289  of   1988. G.D.Mishra  field  writ petition 228 of 1989 on  August  23, 1989 which was ordered to be heard with writ petition 90  of 1989. Tapeshwar Singh withdrew writ petition 289 of 1989.      The High Court heard the arguments in writ petition  90 and  228 of 1989 from November 1, 1989 to February 8,  1990. The bench consisting                                                        18 of S.H.S.Abdi, S.Hoda, JJ allowed the writ petitions by  its judgment  dated  April 5, 1990 and quashed the FIR  and  the criminal proceedings against the accused-petitioners.  These appeals  are  against  the judgment of the  High  Court  via Special  Leave Petitions. In Criminal  Appeal  Nos.525-26/90 Shri   Girija   Nandan   Sharma,  S.P.   CID,   Patna,   the investigating officer and in Criminal Appeal Nos.  523-24/90 Shri R.K.Singh the informant, are also the appellants  along with the State of Bihar.      Mr.  P.P.  Rao  and Mr.  Kapil  Sibal,  learned  senior advocates  appearing for the appellants have contended  that the  High  Court  in  the exercise  of  its  extra  ordinary jurisdiction   committed  a  grave  error  in  taking   into consideration  the affidavits and documents filed  alongwith the  writ  petitions. The counsel contended  that  the  high Court   virtually   usurped   the   jurisdiction   of    the Magistrate/Special Judge by appreciating the affidavits  and documents  produced  before  it  and  reaching   conclusions contrary to the charge-sheets (police reports) submitted  by the  police.  According to the learned  counsel  two  police reports under Section 173 Cr.P.C. had already been filed  in the  court and in fact after hearing the parties at  length, on the question of cognizance, the learned Special Judge had reserved  the  orders. The counsel contended that  the  High Court  was not justified in quashing the proceeding  at  the stage  when the special Judge was seized of the  matter  and was in the process of appreciating the material contained in the police reports.      The  learned counsel took us through the FIR and  other material disclosed in the police-reports to show that  prima facie  offence  is made out against the respondents.  It  is contended  that the allegations in the above  documents,  if taken  as correct, disclose the commission of  a  cognizable offence by the respondents.      The  learned  counsel  for the parties  have  taken  us through  the  judgement of the High Court  which  runs  into about two hundred pages. Long back in R.P. Kapur v. State of Punjab,  [1960]  3  SCR 388  this  Court  circumscribed  the jurisdiction   of   the  High  Courts  to   quash   criminal proceedings in a given case. The law on the subject is clear and  there  is no scope for any ambiguity.  The  High  Court noticed  a  score of decisions of this court  with  abounded quotes  therefrom  and yet failed to see the  settled  legal petition  on  the subject. The High Court  fell  into  grave

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error  and  acted  with patent illegality  in  quashing  the criminal proceedings on the basis of the findings which  are wholly wayward.                                                        19      The  High  Court  on  appreciation  of  the   documents produced before it by the respondents came to the  following conclusions :                     1.   The documents annexures 3, 4, 5, 6,           7, 11, 15, 16, 17, 18, 19, 20, 21/1, 22, 22/1, 24,           25, 26 and 39 (hereinafter called the  annexures’)           which  were  produced  before the  High  Court  as           annexures  to the writ petitions, were  not  taken           into  consideration by the Investigating  Officer.           On appreciation of the annexures it was found that           no  prima facie offence was made out  against  the           respondents.           2.    the informant R.K. Singh was biased  against           the   respondents.   It  was   found   that   ‘the           annexures’,  being part of BISCO-records, were  to           the knowledge of R.K. Singh, he closed his eyes to           the  facts contained in these documents and  acted           in mala fide manner in lodging the FIR against the           respondents on false facts.           3.    The  prosecution was vitiated  because  Shri           G.N.  Sharma the investigating officer acted  with           malice  in refusing to take ‘the  annexures’  into           consideration.           4.   The order granting sanction under Section 197           Cr. P.C. in respect of P.P. Sharma was illegal.           5.    No case under Essential commodities Act  was           made   out  from  the  police  report  and   other           documents on the record.      The  finding that no prima facie offence was  made  out against the respondents was reached by the High Court on the following reasoning.           ‘‘We  are always conscious of the  legal  position           and  the various pronouncements of the  courts  in           India  that disputed questions of facts cannot  be           decided on the basis of affidavits. But when  some           documents  have been brought on the  record  which           are official records, which were in possession  of           the  Biscomaun  and so in the  possession  of  the           informant himself and further when in the  replies           neither the informant nor the I.O. nor any officer           of   the  State  Government  has  challenged   the           correctness of those documentary material so  they           are  at present not disputed and when  it  appears           from  the  argument  and the notes  given  by  the           learned   counsel  for  the  opposite  party   and           Annexures                                                        20           1,  2, 9, 10, 12, and 13 have been  considered  by           the  I.O. and they formed part of the  records  of           the  investigation  except  annexure-I  which  was           seized during the investigation and formed part of           the criminal proceedings. Annexures 3, 4, 5, 6, 7,           11,  15, 16, 17, 18, 19, 20, 21/1, 22,  22/1,  24,           25, 26 and 39 which have been referred to  earlier           and  dealt  with,  do  not  appear  to  have  been           considered  by  the I.O. nor any  reference  about           these  have  been  made in the  arguments  by  the           learned  counsel  for  the  opposite  party  which           apparently  have non-considered  and  non-disputed           and  when those documents  themselves  demonstrate           that  no  prima facie offence is made out  on  the

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         face  value of those materials, then the  criminal           prosecution should not be allowed to continue  and           so it should be quashed.’’      It  is thus obvious that ‘the annexures’  were  neither part  of  the police-reports nor were  relied  upon  by  the investigating officer. These documents were produced by  the respondents  before  the  High Court  along  with  the  writ petitions.  By  treating ‘the annexures’ and  affidavits  as evidence  and  by converting itself into a trial  court  the High  Court  pronounced the respondents to be  innocent  and quashed  the proceedings. The last we can say is  that  this was  not  at  all  a  case  where  High  Court  should  have interfered  in  the exercise of its  inherent  jurisdiction. This  Court  has repeatedly held that  the  appreciation  of evidence  is the function of the criminal courts.  The  High Court,  under  the  circumstances, could  not  have  assumed jurisdiction and put an end to the process of  investigation and  trial  provided  under the law. Since  the  High  Court strongly  relied  upon ‘‘the annexures’’ in support  of  its findings, we may briefly examine these documents.      Annexure  3 is a government notification dated  october 10, 1986 wherein 5 types of fertilizers have been  specified which  could  be purchased or manufactured in the  State  of Bihar.  Annexure  4 is a certificate of  registration  dated March  31,  1986  in favour of the firm  registering  it  as wholesale dealer in the State of Bihar under the Fertilizers (Control) Order, 1957. Annexure 5 dated July 29, 1986 is the renewal  of the said certificate. Annexure 6 dated  November 16,  1985  is  the  certificate given to  the  firm  by  the Assistant  Director (Agriculture) quality control,  Udaipur, Rajasthan  to the effect that samples of  fertilisers  taken from  its  factory were standard. Annexure 7  dated  August, 1986 is the letter from Agriculture Department, Bihar to the Agriculture  Department, Rajasthan showing that  the  firm’s registration  was  renewed upto March 31, 1989  and  it  was granted                                                        21 permission to import the specified grades of fertiliser into the  State of Bihar. Annexure 11 dated October 23,  1986  is the  letter from G.D.Mishra to Director, Agriculture,  Bihar asking  his opinion regarding suitability of the  fertiliser to be purchased from the firm at Rs.2,550 per M.T.  Annexure 15 dated December 19, 1986 is the letter from G.D. Mishra to the firm asking the firm to supply 408 M.T. of   fertiliser. Annexure  16 dated May 5, 1987 contains the  proceedings  of the  marketing  committee of BISCO held on  April  16,  1987 wherein  memorandum of sale and purchase of  fertiliser  for the  year 1986-87 was approved. Annexure 17  Dated  February 18,  1985  is  the  letter  from  R.K.  Singh  as   District Magistrate,  Patna to Agriculture  production  Commissioner, Patna  which  discloses that R.K. Singh had got  samples  of Essential  Commodities  tested  from  Rajendra   Agriculture University.  Annexure  18  dated  March  23,  1987  is   the memorandum  prepared  by  P.P.  Sharma  for  the  Board   of Directors of BISCO suggesting that the fertiliser  purchased from  the  firm be sent to BISCO  factories  asraw-material. This was suggested because the fertiliser was not being sold inspite  of reduction of price and huge stock and money  was blocked. Annexure 19 is the record of the proceedings of the meeting of Board of Directors of BISCO dated March 23,  1987 approving Managing Director’s suggestion that fertiliser  be sent  to BISCO factories as raw material to be converted  as ‘Sada  Bahar’.  Annexure  20  dated  May  21,  1987  is  the memorandum  prepared by P.P. Sharma for Executive  Committee of BISCO regarding manufacture of ‘Hara Bahar’ fertiliser by

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the   BISCO  factories.  Annexure  20/1  is  copy   of   the proceedings  of the Executive Committee meeting held on  May 21, 1987 regarding manufacture of ‘Hara Bahar’. Annexure  22 is the document showing that P.P. Sharma handed over  charge of the office of the Managing Director to Sanjay  Srivastava on June 15, 1987. Annexure 22/1 is the document showing that P.P. Sharma assumed charge as Managing Director of BISCO  on May  26,  1986. Annexure 24 dated October 13,  1987  is  the letter by Mishra to the firm asking it to take back the sub- standard   fertiliser  from  8  depots  mentioned   therein. Annexure  25 is the letter dated May 15, 1987  from  project Manager of BISCO factory to Mishra, wherein the proposal for consumption  of fertiliser to manufacture ‘hara  bahar’  was detailed. It was also stated that the process of manufacture would  be viable. Annexure 26 is a letter from the  firm  to the  BISCO  showing  that the  firm  would  help  converting fertiliser  into ‘hara bahar’ and would meet the  transport, handing  and processing cost. Annexure 39 is the case  diary prepared by the investigating officer.      Taking the documents into consideration the High  Court drew                                                        22 the  inference  that the firm was a registered one, it had a licence from the State of Bihar, which gave monopoly to  the firm  to sell fertiliser throughout the State of  Bihar,  it was  not  necessary to invite tenders. The firm  gave  valid offer  to  sell which was accepted  and  the  correspondence addressed to the office of BISCO was initially dealt with at the  lower  level and after getting reports  from  concerned authorities  and after having full discussion at all  levels the purchase of fertiliser from the firm was approved by the highest authority including the committee of the BISCO.  The High Court further inferred that the rates offered were less than  the  rates approved by the State of  Bihar,  that  the samples  were  got  tested  from  the  Rajendra  Agriculture University,  that the decision to manufacture, ‘hara  bahar’ by  reprocessing the fertiliser purchased from the  company, was  approved by the committee and the Board of  BISCO,  and the said re-processing had yielded profits to the BISCO.  On the  basis  of these inferences the High Court came  to  the conclusion   that  the  criminal  proceedings  against   the respondents were not justified.      Mr.  Kapil Sibal on the other hand has  contended  that the material collected during the investigation prima  facie show the involvement of the respondents in the commission of the crime. The learned counsel has highlighted the following material on the record to support his contention :          1.    The  licence  of  the  firm  to   manufacture          fertiliser was cancelled and the firm was not in  a          position to manufacture fertiliser at the  relevant          time  when the BISCO placed orders with  the  firm.          This assertion is supported by referring to para 48          of the case diary.          2.    Letter dated August 19, 1986 alleged to  have          been written by the firm to BISCO was infact  never          received  by the BISCO. The letter has been  marked          to Special Officer Fertiliser. Mr. Sibal has  taken          us  through  para 15 of the case  diary  where  the          Special  Officer,  Fertiliser has alleged  to  have          stated that he never dealt with the file and he did          not know anything about the deal. The contention is          that  the said letter was introduced into the  file          to show that the deal was not abrupt but there  was          prolonged correspondence.          3.   Mr. Sibal took us through the note of Mr. G.D.

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        Mishra  dated November 14, 1986 which was  approved          by P.P. Sharma and Tapeshwar Singh on November  20,          1986.  The  note  was  a  recommendation  for   the          purchase of fertiliser from the firm. Mr. Sibal                                                        23          stated  that  in paras 7 and 8 of the note  it  has          been wrongly mentioned that the brand of fertiliser          being  purchased from the firm was  recommended  in          the  meeting of Field Officers held on October  25,          1986.  According to him there is no record  of  any          such meeting. Further Mr. Sibal read para 8 of  the          note and stated that the demand in the State was of          Suphla 15:15:15 type of fertiliser but G.D.  Mishra          in his note wrongly stated that the said brand  was          not available and by saying so Mishra falsely  made          out  a  case for the purchase of  fertiliser  brand          15:15:71/2.          4.    Mr.  Sibal read para 9 of the  note  of  G.D.          Mishra  dated  November 14, 1986  and  stated  that          Mishra  recommended payment to the firm  within  10          days of the receipt of the challan whereas the firm          in its letter has indicated payment within 30 days.          5.    The testing of the fertiliser was to be  done          either by the State or the Central laboratory.  Mr.          Sibal  took us through the case diary showing  that          G.D. Mishar did not get the samples tested from the          State  laboratory  on  the ground  that  the  State          laboratory  was out of order. According to him  the          reason  given by G.D. Mishra was found to be  false          as the  material in the case diary shows  that  the          laboratory was functioning.          6.   The respondents placed order for the supply of          fertiliser  to the firm on the basis of the  report          from  the Rajendra Agriculture  University  showing          that  the fertiliser was of standard  quality.  Mr.          Sibal  has taken us through the case diary and  the          police  record  showing  that  a  statement   under          section  164  Cr. P.C. of Shri S.N.  Jha  Associate          Professor,  Rajendra  Agriculture  University   was          recorded which allegedly states that no  fertiliser          came  for  testing  to  the  Rajendra   Agriculture          University and no such report was given. The report          was on the letter head of the Prof. S.N. Jha  which          he  denied in his statement. Mr. Sibal stated  that          there  is a prima facie evidence to show  that  the          test   report   given   by   Rajendra   Agriculture          University was forged and fabricated. According  to          the  allegations on the record the  actual  forgery          was done by accused P.N.Sahu.          7.    The result of the samples of  the  fertiliser          supplied   by   the  firm  sent  to   the   Central          Laboratory,  show  that 8 out of  11  samples  were          found sub-standard.                                                        24          8.    Mr. Sibal contends that 8 out of  11  samples          having  been found to be sub-standard the whole  of          the  fertiliser was to be returned to the firm  but          instead it was decided to reprocess the  fertiliser          by   treating  it  to  be  raw  material  for   the          manufacture of ‘hara bahar’.          9.    Mr. Sibal contends that 23 lacs were paid  to          the  firm  on  December 18,  1986  inspite  of  the          objection  raised  by the  accounts  department  on          December 16, 1986. According to him further 30 lacs          were  paid on january 22, 1987 inspite of the  fact

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        that  by  that  date the  sample-results  from  the          central  laboratory  showing the fertiliser  to  be          sub-standard had been received.          10.   According  to  Mr. Sibal  material  has  come          during  investigation to show that  the  fertiliser          purchased  from the firm was being sold  in  retail          market at a much lesser price of Rs.2000 per MT.      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  fell into grave error in appreciating  the  documents produced  by the respondents along with the  writ  petitions and further delving into disputed questions of facts in  its jurisdiction  under Article 226/227 of the  Constitution  of India.      We have gone through the entire material on the  record carefully  and  we are unable to agree with the  High  Court that  there  was  any ground to hold  that  the  prosecution against  the  respondents was initiated as a result  of  any malice  on  the part of the informant or  the  investigating officer.  There is no material at all to show that prior  to the  lodging  of the FIR there was any  enmity  between  the respondents and the informant/investigating officer. In fact there   is   nothing  on  the  record  to  show   that   the investigating  officer  G.N. Sharma was even  known  to  the respondents.  Mr.R.K.Jain.  learned counsel for one  of  the respondents  has invited our attention to various  facts  on the record and has vehemently argued that the male fides  on the  part  of informant and the  investigating  officer  are writ-large on the facts of the case.      The  question  of mala fide exercise of  power  assumes significance only when the criminal prosecution is initiated on   extraneous  considerations  and  for  an   unauthorised purpose.  There  is no material whatsoever is this  case  to show that on the date when the FIR was lodged by R.K.  Singh he was activated by bias or had any reason to act                                                        25 maliciously.  The dominant purpose of registering  the  case against  the respondents was to have an  investigation  done into  the allegations contained in the FIR and in the  event of  there  being  sufficient  material  in  support  of  the allegations  to present the charge sheet before  the  court. There  is  no material to show that the dominant  object  of registering the case was the character assassination of  the respondents  or to harass and humiliate them. This Court  in State  of Bihar v J.A.C. Saldhana and Ors., [1980] 2 SCR  16 has  held that when the information is lodged at the  police station and an offence is registered, the mala fides of  the informant  would  be  of secondary  importance.  It  is  the material  collected during the investigation  which  decides the  fate  of  the accused person. This Court  in  State  of Haryana  and Ors. v. Ch. Bhajan Lal and Ors., J.T. 1990  (4) S.C.   655   permitted   the  State   Government   to   hold investigation  afresh against Ch. Bhajan Lal inspite of  the fact  the prosecution was lodged at the instance  of  Dharam Pal who was enimical towards Bhajan Lal.      The  informant,  being in a  peculiar  position  having lodged  the accusation, is bound to be looked-down  upon  by the  accused-persons. The allegations of Mala fide therefore against  the informant based on the facts after the  lodging of the FIR are of no consequence and cannot be the basis for quashing  the  proceedings.  As  regards  the  investigating officer,  He  has wide powers under the  criminal  procedure

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code.  He has to perform his duties with the sole object  of investgating  the  allegations  and in  the  course  of  the investigation he has to take into consideration the relevant material whether against or in favour of the accused. Simply because  the investigating officer, while acting  bona  fide rules  out certain documents as irrelevant, it is no  ground to  assume  that  the acted  mala  fide.  The  police-report submitted  by the investing officer has to pass through  the judicial  scrutiny  of a Magistrate at the stage  of  taking cognisance.  Although the accused person has no right to  be heard  at that stage but in case the accused person has  any grouse against the investigating officer or with the  method of  investigation  he  can  bring  to  the  notice  of   the Magistrate  his grievances which can be looked into  by  the Magistrate.  When  the police report under section  173  Cr. P.C. has to go through the judicial scrutiny it is not  open to the High Court to find fault with the same on the  ground that certain documents were not taken into consideration  by the investigating officer. We do not, therefore, agree  with the  High  Court  that  the FIR  and  the  investigation  is vitiated  because  of  the  mala fide on  the  part  of  the informant  and the investigating officer. We  may,  however, notice  the  factual-matrix on the basis of which  the  High Court  has  reached the findings of mala  fide  against  the informant and the investigating                                                        26 officer.  The  High  Court based the  findings  against  the informant R.K.Singh on the following materials :          1.   R.K. Singh, a comparatively junior officer had          twice   served   under  P.P.   Sharma   as   Asstt.          Magistrate,  Gaye and as Sub-Divisional Officer  at          Jamui.          2.    Within  10 days of taking  over  as  Managing          Director  of BISCO he sent proposal for  initiating          surcharge  proceedings  against  Shri  P.P.  Sharma          which  was  rejected by the  then  Registrar.  R.K.          Singh  revived the proposal when later on the  took          over he charge as Registrar.          3.    R.K.Singh  deliberately  violated  Government          instructions  dated  November  17,  1986  requiring          prior  approval  of the  Administrative  department          before  initiating criminal proceedings  against  a          Government officer.          4.   R.K.Singh did not hand over the relevant files          and  papers of BISCO to the  investigating  officer          for  more  than  a week in order to  gain  time  to          tamper/destroy/forge the BISCO files. He  continued          to direct the investigating officer throughout  the          investigation.  Even  affidavit was  filed  by  the          investigating officer on his behalf.      5.   The documents in possession of R.K.Singh were such          that  any reasonable and fair minded  person  would          not  have  filed  the FIR. He acted  mala  fide  in          ignoring the documents and lodging the FIR.          6.   R.K. Singh got the sanction for prosecution of          P.P.  Sharma issued on the last date  of  arguments          before  the  Special  Judge  although  earlier  the          investigating officer had stated that sanction  was          not required.          7.     R.K.Singh   filed  affidavit   denying   the          allegations  of  mala fide in the  High  Court.  He          appeared   through  counsel   and   contested   the          proceedings throughout.          8.    In a letter to Chief Secretary,  Bihar  after          the  lodging  of  FIR R.K.Singh  referred  to  P.P.

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        Sharma  as  ‘‘gutter rat’’  and  ‘‘common  crockery          thief’’.                                                        27      Mala  fides on the part of investigating  officer  G.N. Sharma  have been found by the High Court on  the  following facts :           1.     The  investigating   officer   deliberately          allowed  the  informant to  withhold  the  relevant          files  of BISCO for more than a week after  lodging          the FIR.          2.     The   investigating   officer   adopted    a          threatening  posture  toward P.P. Sharma  from  the          very  beginning. Instead of interrogating  him  the          investigating  officer  demanded  that P.P.  Sharma          should give his ‘safai bayan’ (defence statement).          3.    P.P. Sharma gave the investigating officer  a          copy of the writ petition along with the annexures.          The  annexures  were relevant  documents  from  the          records   of  State  Government  and   BISCO.   The          investigating   officer  refused  to   take   those          documents  into  consideration on the  ground  that          they  were  irrelevant. the  documents  could  have          shown the innocence of the respondents.          4.    The investigating officer did not obtain  the          sanction of the State Government before  submitting          the  police-report. He mentioned in the case  diary          that no sanction for prosecution under section  197          Cr.  P.C. was required. The sanction under  section          15A  of the Essential Commodities Act was also  not          obtained.      We have given our thoughtful consideration to the facts enumerated above. We are of the view that the High Court was not justified in reaching a conclusion from the above  facts the  R.K. Singh and G.N. Sharma acted in a biased  and  Mala fide   manner  in  lodging  the  FIR  and   conducting   the investigation.  We are intentionally not entering  into  any discussion in respect of the facts mentioned above.  Suffice it  to  say that no reasonable person on the  basis  of  the facts  stated above can come to the conclusion as  drawn  by the High Court.      Dr.  Shankar Ghosh and Mr. R.K. Jain,  learned  counsel appearing for the respondents have vehemently supported  the findings of the High Court to the effect that the  composite order  granting  sanction  under section 197  Cr.  P.C.  and section  15-A of the Essential Commodities Act  was  vitated because  of  non  application of mind on  the  part  of  the competent authority. The relevant part of the sanction order is as under :                                                        28           ‘‘Whereas after going through the papers and  case           diary,  available in the Department  of  Personnel           and  Administrative  Reforms Department  File  No.           1/A-3/89  endorsed  to the, Law  Department  State           Government   is  satisfied  that   under   Section           409/420/467/468/471/120 of Indian Penal Code  (Act           45  of  1860)  and in violation  of  provision  of           Fertiliser  Control Order 1985 under Section 7  of           the Essential Commodities Act, prima facie case is           made out to start prosecution against the  accused           Shri  P.P.Sharma.  I.A.S. Chairman,  Sone  Command           Development,   Agency,  the   Managing   Director,           Biscomaun,  Patna in the Gandhi Maidan  P.S.  Case           No. 970/88 ........’’                    ‘‘And  therefore, in the exercise of  the          powers  conferred under Section 197 Cr.  P.C.  1973

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        (Act Fert. II of 1974) and under section 15 of  the          Essential Commodities Act 1955 prosecution has been          sanctioned  under  section  409/420/467/468/471/120          and  under Section 7 of the  Essential  Commodities          Act’’.      The sanction under section 197 Cr. P.C. is not an empty formality.  It is essential that the provisions therein  are to  be  observed  with complete strictness.  The  object  of obtaining sanction is that the authority concerned should be able  to  consider  for  itself  the  material  before   the investigating  officer,  before it comes to  the  conclusion that  the prosecution in the circumstances be sanctioned  or forbidden.  To comply with the provisions of section 197  it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is desirable that the facts should be referred to on the face of the sanction. Section  197  does  not require the sanction to  be  in  any particular  form.  If  the facts  constituting  the  offence charged  are  not shown on the face of the sanction,  it  is open to the prosecution, if challenged, to prove before  the court  that those facts were pa;ced before  the  sanctioning authority. It should be clear from the form of the  sanction that  the  sanctioning  authority  considered  the  relevant material  placed before it and after a consideration of  all the circumstances of the case it sanctioned the prosecution.      In  the present case the investigation was complete  on the  date  of  sanction and police reports  had  been  filed before   the  Magistrate.  The  sanctioning  authority   has specifically mentioned in the sanction order that the papers and  the  case diary were taken  into  consideration  before granting  the sanction. Case diary is a complete  record  of the police                                                        29 investigation.  It  contains total material  in  support  or otherwise  of  the allegations.  The  sanctioning  authority having  taken the case diary into consideration  before  the grant  of  sanction  it cannot be said that  there  was  non application   of  mind  on  the  part  of  the   sanctioning authority.  It  is nobody’s case that the  averment  in  the sanction order to the effect that case diary was taken  into consideration by the competent authority, is incorrect.  We, therefore,  do not agree with the finding of the High  Court and set aside the same.      The findings of the High Court that no offence is  made out against the respondents under the Essential  Commodities Act is also based on the appreciation of ‘the annexures’ and other disputed facts on the record and as such is  untenable for the reasons already indicated above.      We  have reproduced the FIR lodged by R.K.Singh. it  is indisputable that assuming the facts contained in the FIR to be  correct,  prima facie offence is made  out  against  the respondents.  We have also gone through the  police  reports and  the case diary which have been annexed along  with  the counter filed by the respondents. We are satisfied that  the High Court acted with patent illegality in quashing the  FIR and the prosecution against the respondents.      Finally,  we are at a loss to understand as to why  and on  what  reasoning  the High  Court  assumed  extraordinary jurisdiction  under Article 226/227 of the  Constitution  of india  at a stage when the Special Judge was seized  of  the matter.  he  had  heard the arguments  on  the  question  of cognizance  and had reserved the orders. The High Court  did not even permit the Special Judge to pronounce the orders.      The  Directors of the firm who are also accused  person in this case had approached the Rajasthan High Court for the

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quashing  of  the  FIR and  prosecution  against  them.  The Rajasthan  High Court dismissed the writ petition  with  the following order :           ‘‘Sri Bhandari states that in this matter  Challan           has already been filed in court. the writ petition           had,  therefore,  become  infructuous.  the   writ           petition    is   dismissed   as   having    become           infructuous. No order as to costs.’’      The above order was brought to the notice of the  Patna High  Court  but the High Court refused to be  persuaded  to adopt the same course. We are of the considered view that at a stage when the                                                        30 police report under section 173 Cr. P.C. has been  forwarded to the Magistrate after completion of the investigation  and the material collected by the investigating officer is under the gaze of judicial scrutiny, the High Court would do  well to  discipline itself not to undertake quashing  proceedings at  that stage in exercise of its inherent jurisdiction.  We could have set aside the High Court judgement on this ground alone  but elaborate argument having been addressed  by  the learned counsel for the parties we thought it proper to deal with all the aspects of the case.      We,  therefore,  allow  the  appeals,  set  aside   the judgement  of the High Court and dismiss the writ  petitions field by the respondents before the High Court.      K.RAMASWAMY,  J. Investigation  of a crime is not of  a routine duty, in particular in intractable terrains of  high places  committed  with dexterity  and  sophistication.  The unfounded threat of mala fides or bias often deter a sincere and  dedicated investigator to make  in-depth  investigation causing catastrophic incursion on the effectivity to connect the  offender with crime which would serve  the  detractor’s purpose.  The attempt to avail writ remedy on this score  is on   the  ascending  scale.  The  incalculable   damage   of interference  would  be on the efficacy of rule of  law  and maintaining  order in the society. This anxiety made  me  to probe deep into the scope of interference under Art. 226 and express  my  views, though I am in full  agreement  with  my learned brother.      Since  my learned brother stated the facts in  extenso, they  bear no repetition. To focus on the questions  stemmed from the findings of the High Court, I state only few  facts thus:      The Bihar State Co-operative Marketing Union (for short ‘the  BISCOMAUN’) is the sole purchaser and  distributor  of fertilizers  to the farmers in the State through its  depots situated at different parts of the State. When the BISCOMAUN was  at the brink of liquidation due to  mismanagement,  the State  Government superseded its Board of Directors on  July 30,   1988   and  appointed  R.K.  Singh,  I.A.S.   as   its Administrator  and Managing director. During the  course  of the   discharge   of   his  duties,   he   noted   financial irregularities  committed by P.P. Sharma, the then  Managing Director (the first respondent), Ganesh Dutt Misra, the then ADvisor  (the  second respondent) and Tapeshwar  Singh,  the then  Chairman of BISCOMAUN and laid the information  before the Station House Officer, Gandhi Maidan Police                                                        31 Station,  Patna on September 1, 1988, shorn of  the  details the substratum of the accusations made against them is  that they conspired with the Rajasthan multi Fertilizers  Private Limited (for short ‘the Company’) through its partners named therein  to cause wrongful gain to the Company and  wrongful loss   to  the  BISCOMAUN  and  the  farmers   to   purchase

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substandard   fertilizers   by  name   ‘Suraj’   brand.   In furtherance  thereof  the  Chairman  received   applications directly  from the Company and without routing  through  the official  channel  and without inviting  tenders  from  open market,  the contract was finalised. The  prevailing  retail price  of ‘Suraj’ brand of the Company itself  was  Rs.2,000 per M.T., but contracted to purchase at Rs.2,509.60 per M.T. In  terms  of  the  contract  the  Company  has  to   supply granulated mixed fertilizers with full bags, which would  be subjected  to chemical analysis in the laboratory either  of the  BISCOMAUN  or the State of Central Government.  If  the fertilizers  were found to be of substandard, the same  were to be taken return of at the Company’s expenses. On test  if fertilizers were found to be standard one, payment was to be made  at  a  specified rate within 30  days.  Sharma  placed orders with the Company to supply 2500 M.Ts. of fertilizers. Fertilizers’ Inspectors were to have the fertilizers  tested in  terms  of the Fertilizers Control  Order,  Instead,  the agent of the Company had taken the Fertilizers for  chemical examination in Rajendra Agricultural University, Bihar.  The report  said to have been given by Dr. S.N.  Jha,  Associate Professor of Soil Science of the University, was  fabricated by one S.N. Sahoo, Assistant in the department who is one of the  accused; payments were made in undue haste and  further order  to supply of 450 M.Ts. was made by G.D. Mishra.  Only 459 M.Ts in total was sold out. When the reports were  being received  from  depots that the  fertilizers  supplied  were substandard  and  spurious and the bags do not  contain  the full  weight, instead of returning the stock,  a  resolution was  obtained from the Managing Committee to convert  unsold old   stock  as  HARBAHAR.  When  a  specific  request   for conversion  of  the  stock  supplied  by  the  Company   for conversion  as  HARBAHAR  was turned  out  by  the  Managing Committee,  yet  the  resolution was  fraudulently  used  to destroy  the evidence of supply of substandard and  spurious fertilizers  and converted into Harbahar and fabricated  the records  in furtherance thereof. These in substance are  the accusations punishable under ss. 409, 420, 467, 468 and  471 read  with s. 120B of the Indian Penal Code and s. 7 of  the Essential Commodities Act and the Fertilizer Control  Order. G.N.  Sharma,  Addl. Superintendent  of  Police,  C.B.C.I.D. investigated  into and collected the evidence and field  two chargesheets,  one  under  the relevant  provisions  of  the Indian Penal Code and the other under s. 7 of the  Essential Commodities Act                                                        32 before  the  Special  Judge, Economic Cases  and  the  Chief Judicial Magistrate, Patna in chargesheets Nos. 102 and  103 of  1988 respectively but the cognizance of the  offence  is yet to be taken. My learned brother referred the findings of the  High Court to quash the FIR and the  charge-sheets  and the  contentions of the counsel on either side. Hence  I  am omitting them except to refer to some of them wherever it is necessary.      Undoubtedly,  the  arms  of the  High  Court  are  long enough,  when exercises its prerogative discretionary  power under  Art.  226  of the Constitution,  to  reach  injustice wherever  it  is  found in the  judicial  or  quasi-judicial process  of  any court or Tribunal or authority  within  its jurisdiction.   But   it  is  hedged   with   self   imposed limitations. When and under what circumstances would a  High Court  be  justified to quash the charge-sheet  even  before cognizance of the offence was taken by the criminal court is the  crucial  question, in particular on mala fides  of  the complaint or investigating officer and on merits.

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    To   appreciate  the  respective  contentions,  it   is necessary  to have before us the operational  spectrum  from the  relevant provisions in the Code of Criminal  procedure, 1973, for short‘‘the Code’’. Section 2(n) of the Code and s. 40 of the indian Penal Code defined the term ‘‘Offence means any  act or omission which includes a thing made  punishable under  the indian penal Code, or any special or  local  laws with  imprisonment  for  a term of  six  months  or  upwards whether with or without fine. Therefore, an act or  omission or  a thing made punishable by the Penal Code or  under  any special  or  local law is an offence  punishable  under  the relevant  law.  Sec.  154  in  Chapter  XII  of  the   Code, contemplates  laying of information of  cognizable  offences either  orally  or  in writing to an offencer  of  a  police station  who is enjoined to reduce it into writing, if  made orally  or  under his direction and  the  substance  thereof entered in the book kept in the Police Station in the manner prescribed by the State Government. The Officer incharge  of the  police station is prohibited to investigate  only  into non-cognizable  cases  without an order  of  the  Magistrate concerned  under s. 155(2). But if the facts  disclose  both cognizable and non-cognizable offence, by operation of  sub- s.  4 of s. 155 the case shall be deemed to  be  congnizable case   and   the  police  officer  shall  be   entitled   to investigate, without any order of the Magistrate, into  non- cognizable  offence  as well. Section  156  gives  statutory power  to a competent police officer or a subordinate  under his  direction to investigate into cognizable  offences.  In cases of cognizable offences receipt or recording of a first information report is not a condition                                                        33 precedent  to  set  in  motion  of  criminal  investigation. Section 157 provides the procedure for investigation. If the police officer incharge of the Police Station, on receipt of information   or  otherwise,  has  reason  to  suspect   the commission  of  a  cognizable offence and  is  empowered  to investigate into, he shall proceed in person or shall depute one  of his subordinate officers not below the rank  of  the prescribed officer to the spot to investigate the facts  and circumstances  and  if necessary to take  measures  for  the discovery  and arrest of the offender. The  provisos(a)  and (b) thereof give power, in cases of minor offences to depute some  other  subordinate  officer or  if  the  investigating officer is of the opinion that there is no sufficient ground for  entering on investigation he shall not investigate  the case.      Investigation consists of  divers steps-(1) to  proceed to the spot; (2) to ascertain the facts and circumstances of the  case;  (3)  discovery  and  arrest  of  the   suspected offender;  (4)  collection  of  evidence  relating  to   the commission  of  the  offence which may consist  of  (a)  the examination of various persons including the accused and the reduction  of their statements into writing if  the  officer thinks fit (Sec. 161 Cr. P.C.); (b) the search of places and seizure  of  things necessary for the  investigation  to  be proceeded  with for the trial (Sec. 165 Cr. P.C.  etc.)  and (c)  recovery  of  the  material  objects  or  such  of  the information  from  the accused to discover,  in  consequence thereof,  so  much of information relating to  discovery  of facts to be proved. (See 27 of the Indian Evidence Act).      On  completion of the investigation, if it  appears  to the  investigator  that  there  is  sufficient  evidence  or reasonable  ground  to  place the  accused  for  trial,  the investigating officer shall forward to the court a report in that regard alongwith the evidence and the accused, if he is

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in  the custody to the Magistrate. If on the other  hand  he opines  that there is no sufficient evidence  or  reasonable grounds  connecting the accused with the commission  of  the offence  he  may  forward  the  report  to  the   Magistrate accordingly.  The  Magistrate is empowered to  consider  the report  and  on  satisfying that  the  accused  prima  facie committed  the offence, take cognizance of the  offence  and would  issue process or warrant to the accused, if on  bail, to  appear  on a date fixed for trial or to commit  him  for trial to the court of session. It is not incumbent upon  the Magistrate to accept the report of the investigating officer that there is no sufficient evidence or reasonable ground to connect the accused with the commission of the crime; he may direct  further investigation or suo moto  the  investigator may himself submit supplemental chargesheet under s.  173(8) if he subsequently becomes                                                        34 aware  of certain facts or itself or through  a  subordinate Magistrate to make further enquiry or to take cognizance  of the  offence  upon consideration of the material  so  placed before  him and take further steps as aforesaid.  Then  only proceedings  in  a criminal case  stands  commenced.  Taking cognizance of the offence is coterminus to the power of  the police  to investigate in the crime. Until then there is  no power  to the Magistrate except on a private complaint in  a cognizable/non  cognizable offence to direct the  police  to investigate   into  the  offence.  The  Magistrate  is   not empowered to interfere with the investigation by the police. In  King Emperor v. Khawaja Nazir Ahmad, 71 Indian  Appeals, 203  the Judicial Committee of the Privy Council  held  that ‘‘the   function  of  the  judiciary  and  the  police   are complementary, not overlapping’’ and "the court’s  functions begin  when a charge is preferred before it, and  not  until then’’.  In Jamuna Chaudhary v State of Bihar, [1974] 3  SCC 774 this Court held:           ‘‘The  Duty  of the investigating officer  is  not           merely to bolster up a prosecution case with  such           evidence  as  may  enable the court  to  record  a          conviction,  but to bring out the real  unvarnished          truth’’.      The only duty cast on the investigation is to  maintain a  diary  of  his investigation, which is  known  as  ‘‘Case Diary’’  under s. 172 of the Code. The entries in  the  case diary  are not evidence nor can they be used by the  accused or  the court unless the case comes under s. 172(3)  of  the Code. The court is entitled for perusal to enable it to find out  if  the investigation has been conducted on  the  right lines  so that appropriate directions, if need be given  and may  also provide materials showing the necessity to  summon witnesses  not  mentioned  in  the  list  supplied  by   the prosecution  or to bring on record other  relevant  material which in the opinion of the court will help it to arrive  at a  proper  decision in terms of s. 172(3) of the  Code.  The primary duty of the police, thus is to collect and sift  the evidence  of the commission of the offence to  find  whether the  accused committed the offence or has reason to  believe to have committed the offence and the evidence available  is sufficient to prove the offence and to submit his report  to the competent Magistrate to take cognizance of the offence.      In  S.N. Sharma v. Bipen Kumar Tiwari &  Ors.,  [1970]3 SCR 946 this Court held that s. 159 primarily meant to  give to  the Magistrate the power to direct an  investigation  in cases  where the police decides not to investigate the  case under proviso to s. 157(1) and it is in those cases that, if he  thinks fit, he can choose to enquire into it by  himself

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or                                                        35 direct the subordinate Magistrate to enquire into and submit a report. Section 159 intends to give a limited power to the Magistrate  to  ensure  that  the  police  investigate  into cognizable  offence and do not refuse to do so  for  certain limited  cases of not proceeding with the  investigation  of the  offence. The Code gives to the police unfettered  power to  investigate all cases where they  suspect  a  cognizable offense  has  been  committed. In  an  appropriate  case  an aggrieved  person can always seek a remedy by  invoking  the power  of the High Court under Art.226 of the  Constitution. If   the  court  could  be  convinced  that  the  power   of investigation  has been exercised by a police  officer  mala fide, a man-damus can be issued restraining the investigator to misuse his legal powers.  The same view was reiterated in State  of Bihar & Anr.v. J.A.C.Saldanha & Ors., [1980]  1SCC 554 wherein this court held that unless extra-ordinary cases of   gross  abuse  of  power  by  those  incharge   of   the investigation  is made out, the Court should be quite  loath to  interfere  at  the stage of investigation.  A  field  of activity  is  reserved for police and  the  executive.  This Court  also noted that it is a clear case of  usurpation  of jurisdiction   by  the  High  Court,  that  vested  in   the Magistrate to take or not to take cognizance of the case  on the  material  placed before him. The High  Court  committed grave  error  by making observations on  seriously  disputed question  of facts taking its clue from affidavit, which  in such a situation hardly provides any reliable material. This Court  also  noted  that  the  interference  or   direction, virtually amount to a mandamus to close the case before  the investigation is complete. In State of West Bengal  v.Sampat Lal, [1985] 1SCC 317 at 336 para 26 this court held that the court has residuary power to give appropriate directions  to the  police  when  the requirements of  law  are  not  being complied  with and investigation is not being done  properly or with due haste and promptitude.      In  Municipal  Corporation of Delhi v.  Purshotam  Dass Jhunjunwala  &  Ors., [1983] 1SCC 9 this  Court  found  that clear  averments  have been made regarding the  active  role played  by the accused respondents and the extent  of  their liability,  it cannot be said that complaint was  vague  and that the High Court was absolutely wrong in holding that the allegations  in paragraph 5 therein were vague.  Accordingly the  order of the High Court quashing the proceedings  under s. 482 was set aside.      In  Abhinandan Jha & Ors.v.Dinesh Mishra, [1967] 3  SCR 668 this Court held, preceding introduction of s. 173(8)  of the  Code  that the Magistrate cannot direct the  police  to submit  a  chargesheet  and  compel the  police  to  form  a particular  opinion on investigation and to submit a  report according to such opinion. If the police submits a                                                        36 report  that  there is no case made out for sending  up  the accused  for trial, the court itself may take cognizance  of the offence on the basis of the report and the  accompanying evidence if it is found that there is sufficient evidence to proceed further or itself conduct or direct the  subordinate Magistrate  to  make further enquiry to  take  action  under s.190 etc. Thus it is seen that in an appropriate case where after registering the crime if no expeditious  investigation for unexplained reasons was done the Magistrate or the  High Court,  on satisfying the grounds, may direct completion  of the investigation within a reasonable time.      In  Nazir Ahmed’s case (supra) the  Judicial  Committee

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held that the functions of the judiciary and the police  are complementary,  not  over-lapping  and  the  combination  of individual  liberty with due observance of law and order  is only  to  be obtained by leaving each to  exercise  its  own functions.      The   Code  demarcates  the  field   of   investigation exclusively  to  the executive to be vigilant over  law  and order.  Police  officer has statutory power and right  as  a part to investigate the cognizable offence suspected to have been committed by an accused and bring the offender to book. In  respect thereof he needs no authority from a  Magistrate or a court except to the extent indicated in sub-s. 3 of  s. 156,  the superintendence sparingly over  the  investigation and  the  matters  incidental thereto,  like  enlarging  the accused  on  bail  or to secure  his  presence  for  further investigation; to record judicial confession under s.164  of the Code or to conduct identification parade of the  accused or  the  articles of crime or  recording  dying  declarating under s.32 of Evidence Act.      The  investigating  officer is the arm of the  law  and plays  pivotal role in the dispensation of criminal  justice and  maintenance of law and order. The police  investigation is,  therefore,  the  foundation stone on  which  the  whole edifice  of  criminal trial rests-as error in its  chain  of investigation  may result in miscarriage of justice and  the prosecution   entails  with  acquittal.  The  duty  of   the investigating officer, therefore, is to ascertain facts,  to extract truth from half-truth or garbled version, connecting the  chain of events. Investigation is a tardy  and  tedious process.  Enough  power, therefore, has been  given  to  the police  officer  in  the  area  of  investigatory   process, granting   him  or  her  great  latitude  to  exercise   his discretionary  power to make a successful investigation.  It is by his action that law becomes an actual positive forces. Often crimes are committed in secrecy with dexterity and  at high places. The                                                        37 investigating  officer may have to obtain  information  from sources  disclosed  or  undisclosed  and  there  is  no  set procedure to conduct investigation to connect every step  in the  chain  of prosecution case by collecting  the  evidence except to the extent expressly prohibited by the Code or the Evidence  Act  or the Constitution. In view of  the  arduous task  involved in the investigation he has been  given  free liberty  to collect the necessary evidence in any manner  he feels  expedient, on the facts and in  given  circumstances. His/her  primary  focus is on the solution of the  crime  by intensive  investigation. It is his duty to ferret  out  the truth.  Laborious  hard-work and attention to  the  details, ability   to  sort  out  through  mountainous   information, recognised behavourial patterns and above all, to co-ordinate the  efforts  of different people  associated  with  various elements  of the crime and the case, are essential.  Diverse methods  are,  therefore, involved in  making  a  successful completion of the investigation.      From this perspective, the function of the judiciary in the  course  of  investigation  by  the  police  should   be complementary  and  full freedom should be accorded  to  the investigator to collect the evidence connecting the chain of events  leading  to the discovery of the  truth,  viz.,  the proof  of  the commission of the  crime,.  Often  individual liberty  of a witness or an accused person are involved  and inconvenience   is   inescapable   and   unavoidable.    The investigating officer would conduct indepth investigation to discover truth while keeping in view the individual  liberty

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with  due observance of law. At the same time he has a  duty to enforce criminal law as an integral process. No  criminal justice system deserves respect if its wheels are turned  by ignorance.  It  is  never  his  business  to  fabricate  the evidence  to connect the suspect with the commission of  the crime.   Trustworthiness  of  the  police  is  the   primary insurance.  Reputation  for  investigative  competence   and individual  honesty  of the investigator  are  necessary  to enthuse public confidence. Total support of the public  also is necessary.      The  focal point from the above background  is  whether the  chargesheets are vitiated by the alleged mala fides  on the  part  of either of the complainant R.K.  Singh  or  the Investigating  Officer  G.N.Sharma. In  Judicial  Review  of Administrative  Action  by S.A. Desmith, 3rd Edn.  at  p.293 stated  that  "the concept of bad faith in relation  to  the exercise of statutory powers comprise dishonesty (or  fraud) and  malice.  A  power  is  exercised  fraudulently  if  its repository intends to achieve  an object other than that for which  he  believes the power to have  been  conferred.  His intention  may  be  to promote another  public  interest  or private interest. A power is exercised                                                        38 maliciously  if  its  repository is  motivated  by  personal animosity  towards  those who are directly affected  by  its exercise. The administrative discretion means power of being administratively discreet. It implies authority to do an act or  to  decide a matter a  discretion".  The  administrative authority  is  free  to act in its descretion  if  he  deems necessary  or if he or it is satisfied of the  immediacy  of official action on his or its part. His responsibility  lies only  to the superiors and the Government. The power to  act in discretion is not power to act adarbitrarium. It is not a despotic  power,  nor hedged with arbitrariness,  nor  legal irresponsibility  to exercise discretionary power in  excess of   the  statutory  ground  disregarding   the   prescribed conditions  for  ulterior  motive.  If  done  it  bring  the authority concerned in conflict with law. When the power was exercised   mala  fide  it  undoubtedly  gets  vitiated   by colourable exercise of power.        Mala  fides means want of good faith, personal  bias, grudge, oblique or improper motive or ulterior purpose.  The administrative action must be said to be done in good faith, if  it  is  in  fact  done  honestly,  whether  it  is  done negligently  or not. An act done honestly is deemd  to  have been  done in good faith. An administrative authority  must, therefore,  act in a bona fide manner and should  never  act for  an improper motive or ulterior purposes or contrary  to the  requirements  of  the  statute, or  the  basis  of  the circumstances  contemplated by law, or improperly  exercised discretion   to   achieve   some   ulterior   purpose.   The determination of a plea of mala fide involves two questions, namely  (i) whether there is a personal bias or  an  oblique motive;  and  (ii)  whether  the  administrative  action  is contrary  to the objects, requirements and conditions  of  a valid exercise of administrative power.      The  action  taken must, therefore, be proved  to  have been  made mala fide for such considerations Mere  assertion or  a vague or bald statement is not sufficient. It must  be demonstrated   either  by  admitted  or  proved  facts   and circumstances   obtainable  in  a  given  case.  If  it   is established that the action has been taken mala fide for any such  considerations  or  by fraud on  power  or  colourable exercise of power, it cannot be allowed to stand.      Public  adminstration cannot be carried on in a  spirit

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of  judicial  detachment.  There  is  a  very  widerange  of discretionary  administrative acts not importing an  implied duty  to act judicially though the act must be done in  good faith  to which legal protection will be accorded.  But  the administrative act dehors judicial flavour does not entail                                                   39 compliance with the rule against interest and likelihood  of bias.  It  is implicit that a complainant when he  lodges  a report  to  the Station House Officer accusing a  person  of commission  of an offence, often may be a person  aggrieved, but rarely a probono publico. Therefore, inherent  animosity is  licit and by itself is not tended to cloud the  veracity of the accusation suspected to have been committed, provided it is based on factual foundation.      In Sirajuddin etc. v.State of Madras etc., [1970] 2 SCR 931  this Court held that before a public servant,  whatever be  his status, is publicly charged with acts  of  dishonety which  amounts to serious misdemeanour or misconduct,  there must be suitable preliminary enquiry into the allegations by a  responsible officer. Lodging a First  Information  Report without enquiry against an officer occupying a top  position in  a department would do incalculable harm not only to  the officer  in particular but to the department he belongs  to, in  general,  Enquiry  Officer  must not  act  in  any  pre- conceived  idea  of guilt of the persons whose  conduct  was being  enquired into or pursue the enquiry in such a  manner as  to lead to an inference that he was bent  upon  securing the  conviction of the said person by adopting the  measures which  are doubtful validity or sanction. The means  adopted no less than the end to be achieved must be impeccable.  The aim of Code is to secure a conviction if he can do by use of utmost  fairness  on the part of the  Officer  investigating into  the crime before lodging a chargesheet. The reason  is that  no  one should be put to unnecessary harassment  on  a trial  unless  there are good and  substantial  reasons  for holding  it. On the facts in that case the Court found  that before   lodging   the   First   Information   Report    the Investigating  Officer  suborn the  witnesses  and  obtained statements  under  s.  162 under their  signature  and  also induced    the   witnesses   of   self-incriminating    from prosecution.  That conduct on the part of the  Investigating Officer  was  found  to  be unfair. In  this  case  no  such allegation  has  ever been made  against  the  Investigating Officer or the Administrator.      In  State  of  U.P.  v. B.K. Joshi,  [1964]  3  SCR  71 Mudholkare,J. in a separate, but concurring judgment at page 86  and 87 held that even in the absence of any  prohibition in  the  Code,  express or implied,  a  preliminary  enquiry before listing the offence was held to be desirable. In this view,  though it was desirable to have  preliminary  inquiry done, the omission in this regard by the Administrator or to obtain  administrative  sanction  before  laying  the   Fist Information Report would at best be an irregularity, but not a  condition  precedent to set in motion  the  investigation into the offence alleged against the respondents.                                                        40      It  is a settled law that the person against whom  mala fides or bias was imputed should be impleaded eo-nominee  as a  party  respondent  to   the  proceedings  and  given   an opportunity to meet those allegations. In his/her absence no enquiry  into those allegation would be made.  Otherwise  it itself is violative of the principles of natural justice  as it  amounts to condemning a person without  an  opportunity. Admittedly,  both  R.K.  Singh  and  G.N.  Sharma  were  not impleaded.  On this ground alone the High Court should  have

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stopped  enquiry into the allegation of mala fides  or  bias alleged against them. Nothing has been alleged, nor  brought to our notice that preceding laying the complaint before the police,  R.K. Singh had any personal animosity  against  the respondents.  Nothing has also been brought to  our  notice, nor  alleged either in the High Court or in this court  that after  his  filing  the  complaint he had  any  say  in  the investigation  conducted  by the  Investigating  Officer  or exercised  any  pressure  to investigate  the  case  in  any particular way to secure the conviction of the  respondents. The only allegation relied on by the High Court is that R.K. Singh  before  laying the First Information Report  did  not look into certain documents or did not deliver them up for a week to the Investigating Officer. Had he considered  things would   be  favourable  to  the  respondents  and  that   no administrative sanction was obtained. That by itself in  our considered   view  would  not  lead  to   any   irresistible conclusion  that R.K. Singh was actuated with  any  personal bias  or mala fides against Sharma or Dutt. At the  most  it may  be  said  that  he  had  not  properly  exercised   his discretion before laying the complaint. Equally no  personal bias  was alleged to the Investigating Officer nor found  in this regard by the High Court. The ground on which  reliance was  placed and found acceptable to the High Court  is  that when the documents said to be favourable to the  respondents were  brought  to his notice, he did  not  investigate  into those  facts on the ground of being "irrelevant". Free  from bias  is  an  integral part of  the  principles  of  natural justice.  When bias was imputed to be existed, he ought  not to  take part in a decision making process.  Police  Officer has a statutory duty to investigate into the crime suspected to  have  been  committed  by  the  accused,  by  collecting necessary  evidence to connect the accused with  the  crime. Investigator  exercises no judicial or  quasi-judicial  duty except  the  statutory function of a ministerial  nature  to collect the evidence. With his expertise, skill or knowledge he  has  to find whether the accused committed  the  offence alleged   against.  If  the  accused  is  aware   that   the Investigating Officer was personally biased against him,  it is his primary duty to bring it to the notice of the  higher authorities   or   the  court  at  the  earliest,   of   the circumstances  or on the grounds on which he  believed  that the Investigating Officer is actuated with malice and                                                        41 impartial  investigation  cannot be had. If  he  allows  the Investigating Officer to complete the investigation and  the report  submitted, it amounts to his waiving  the  objection and  he would not be allowed to impeach the  chargesheet  on the ground of the alleged bias or mala fides. Moreover,  the Investigating   Officer   would  be  available   to   cross- examination at the trial of the case and it would be open to the  accused  to  elicit  from  the  Investigating   Officer necessary  circumstances  of ground to throw  doubt  on  the impartiality of the Investigating Officer and must establish its effect on the prosecution evidence adduced at the trial. It  is  for the court to consider how far  it  has  effected materially  the result of the trial. The evidence  collected during  investigation  would  be subject  to  proof  as  per Evidence Act and tested by cross-examination. The  reasoning of  the  Courts  below that it an  authority  does  not  act impartially  or  in good faith then a  reasonable  mind  can definitely  infer  the  bias for reason best  known  to  the authorities is too wide a statement of law in the context of police/Investigating Officer.      In  State  of  Bihar  v.  J.A.  Saldana,  AIR  1980  SC

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326=[1980]1  SCC  554 it was held that though mala  fide  or bias  of  a informant is of secondary importance if  at  the trial  impeccable evidence disclosing the offence  has  been brought on record.      Equally  the  finding of the High Court that  the  mala fides  of the Investigating Officer was established  by  his subsequent  conduct,  of  his  participation  in  the   writ proceedings  in  our view, is obviously  illegal.  When  the investigation  was  subject matter of the challenge  in  the court, it would be obvious that the investigator alone is to defend the case; he has to file the counter affidavit and to appear  in  the  proceedings  on behalf  of  the  state.  No exception  should  be  taken to this  course  and  under  no circumstances  it should be deduced to be a mala  fide  act. Undoubtedly  when  it  was  brought to  the  notice  of  the Investigating Officer of the existence of certain  documents that throw doubt on the complicity of the accused, it  would be  salutory  that  be would  also  investigate  into  those aspects  vis-a-vis  the evidence in his possession  to  find whether they would throw any doubt on the commission of  the offence  alleged or otherwise. The omission  to  investigate into  those aspects, by no stretch of imagination  would  be inferred  to  be  a mala fide act. It may  be  a  bona  fide opinion. Undoubtedly, this court held that mala fides on the part  of the complainant would be a factor to be gone  into. But  no  decided  case that a charge-sheet was  held  to  be vitiated by mala fides due to omission to exercise statutory power was brought to our notice. The allegation of mala fide and bias more often                                                        42 made easily, than proved. (Investigation is a delicate pains taking  and dextrous process. Ethical conduct is  absolutely essential  for investigative professionalism. Ethics can  be defined  as the practical normative study of  the  rightness and  wrongness  of human conduct.) The  police  investigator faces  the  most frequent and immediate  ethical  pressures. Despite  many a stress associated with the  enforcement  and investigation  functions,  the  investigator  must  adapt  a professional  and  uncom-promising  attitude.  Rather   than succumbing to unethical logic and engaging in unprofessional means to justify a seemingly desirable end, the investigator should realise that no conviction is worth sacrificing one’s personal and professional integrity. The allegation of  mala fides  cause  deep  incursion on  the  psychic  attitude  to uncover   the   crime  and  on  the   effectivity   of   the investigation. The threat of mala fide would deter an honest and  efficient  Investigating Officer to  probe  an  indepth investigation  into the crime. The result would be that  the crime  remains undetected and injury is irremediable to  the society.  Criminal becomes emboldened and people lose  faith in  the  efficacy  of  law  and  order.  Therefore,   before countenancing  such allegations of mala fides or bias it  is salutory  and  an  onerous duty and  responsibility  of  the court, not only to insist upon making specific and  definite allegations of personal animosity against the  Investigating Officer  at  the start of the investigation  but  also  must insist  to  establish  and prove them  from  the  facts  and circumstances to the satisfaction of the court.      It  is  undoubted that no-one should  unnecessarily  be harassed  or  face  an  ordeal  of  criminal  trial   unless sufficient materials are collected during the  investigation disclosing  the crime committed. (The Investigating  Officer is  not  to  act on a pre-conceived idea  of  guilt  of  the accused. The Investigating Officer is expected to gather the entire  material,  so  that the truth or  falsihood  of  the

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accusation  may  be  found by the court at  the  trial.  The Investigating Officer is expected to investigate justly  and fairly,  but the evidence collected at the investigation  is not  be  all  and  end  all.) At  the  stage  of  trial  the opportunity is wide open to the accused to cross examine the witnesses  and if he deems necessary to adduce  the  defence evidence and to test the veracity of the evidence  collected during the investigation.      Malice in law could be inferred from doing of  wrongful act  intentionally  without  any just  cause  or  excuse  or without  there being reasonable relation to the  purpose  of the  exercise  of ‘statutory power. (Malice in  law  is  not established  from  the omission to consider  some  documents said  to be relevant to the accused. Equally  reporting  the commission  of a crime to the Station House Officer,  cannot be held to                                                        43 be a colourable exercise of power with bad faith or fraud on power.)  It may be honest and bona fide exercise  of  power. There are no grounds made out or shown to us that the  first information  was not lodged in good faith. State of  Haryana v.Bhajanlal,  J.T. (1991) 4 SC 655 is an authority  for  the proposition that existence of deep seated political vendetta is  not  a ground to quash the F.I.R.  Therein  despite  the attempt  by  the respondent to prove by  affidavit  evidence corroborated  by  documents of the mala fides  and  even  on facts  as  alleged  no offence  was  committed,  this  court declined  to  go into those allegations  and  relegated  the dispute  for  investigation. Unhesistingly I hold  that  the findings of the High Court that F.I.R. gets vitiated by  the mala fides of the Administrator and the chargesheets are the results of the mala fides of the informant or  investigator, to  say the least, is fantastic and obvious gross  error  of law.      The  contention  of  Sri R.K.  Jain,  the  learned  Sr. Counsel  is  that  when the evidence  collected  during  the investigation  was  not unimpeachable, the  prosecution  and continunance  of  the  proceedings are only a  step  in  the process  of harassment to the respondents,  offending  their right to life and livelihood enshrined under Art. 21 of  the Constitution. The question is whether, the impugned  actions would  offend  Article 21 of the  Constitution.  Article  21 assures every person right to life and personal liberty. The word  personal liberty is of the widest  amplitude  covering variety of rights which goes to constitute personal  liberty of a citizen. Its deprivation shall be only as per procedure prescribed  in the Code and the Evidence Act conformable  to the  mandate  of  the Supreme  law,  the  Constitution.  The investigator must be alive to the mandate of Art. 21 and  is not   empowered  to  trample  upon  the   personal   liberty arbitrarily,  though  the  Code  gives unfetterd  power   to investigate into the suspected cognizable offence imputed to an  accused.  The  gravity  of the  evil  to  the  community resulting  from antisocial activities or commission  of  the grave crime by itself would not give carte blanche right  or power to the investigator to invade the personal liberty  of a   citizen   except  in  accordance  with   the   procedure established  by law and the constitution. The observance  of the  procedure,  therefore,  is an  assurance  against  want assaults on personal liberty.      An  investigating officer who is not sensitive  to  the constitutional  mandates, may be prone to trample  upon  the personal  liberty  of a person when he is actuated  by  mala fides.  But  as stated the accused, at the  earliest  should bring  to the notice of the court of the personal  bias  and

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his  reasonable belief that an objective investigation  into the crime                                                        44 would  not  be  had  at the hands  of  the  investigator  by pleading  and  proving as of fact  with  necessary  material facts.  If he stands by till the chargesheet was  filed,  it must be assumed that he has waived his objection. He  cannot turn  down  after  seeing the adverse report  to  plead  the alleged  mala fides. (Equally laying the information  before the  Station House Officer of the commission  of  cognizable crime  merely  sets the machinery if  the  investigation  in motion  to act in accordance with the procedure  established by law.) The finding of the High Court, therefore, that  the F.I.R. charge-sheet violate the constitutional mandate under Art. 21 is without substance.      .......  The next question is whether the charge-sheets became  illegal for obtaining sanction after filing them  in the court and under what circumstances. Section 197(1) reads thus:           "Prosecution  of  Judges and  public  servants-(1)           When  any  person  who  is  or  was  a  Judge   or           Magistrate or a public servant not removable  from           his  office  save by or with the sanction  of  the           Government  is accused of any offence  alleged  to           have  been  committed  by  him  while  acting   or           purporting to act in the discharge of his official           duty,  no  Court  shall take  cognizance  of  such           offence except with the previous sanction-          (a) in the case of of a person who is employed  or,          as  the case may be, was at the time of  commission          of the alleged offence employed, in connection with          the   affairs   of  the  Union,  of   the   Central          Government;           (b) in the case of a person who is employed or, as           the case may be, was at the time of commission  of           the  alleged offence employed, in connection  with           the affairs of a State, of the State Government. Other sub-sections are not relevant. Hence omitted.      Similarlys. 15-A of the Essential Commodities Act reads thus:         "Prosecution  of public servants.-Where any  person          who  is a public servant is accused of any  offence          alleged to have been committed by him while  acting          or purporting  to act in the discharge of his  duty          in  pursuance of an order made under s.3, no  court          shall take cognizance of such offence                                                        45           except with the previous sanction:           (a)  of the Central Government, in the case  of  a           person who is employed or, as the case may be, was           at  the time of commission of the alleged  offence           employed  in  connection with the affairs  of  the           Union;           (b)  of  the State Government in the matter  of  a           person who is employed or, as the case may be, was           at  the time of commission of the alleged  offence           employed  in  connection with the affairs  of  the           State". The  emphasis  laid in both the sections are that  no  court shall  take  cogizance of offence against a  public  servant alleged  to have committed while acting or purported to  act in  the  discharge of official duty,  except  with  previous sanction  of the appropriate Government. The  object  behind prior  sanction  is  to  prevent  malacious,  vexatious  and unnecessary  harassment to a public servant by laying  false

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or  frivolous  accusation  or prosecution.  In  other  words ss.197(1),  15-A and related sections intended to  immune  a public  servant  who  discharges  his  duties  honestly  and diligently from the threat of prosecution. Honest discharges of  public  duty would impinge adversely of  the  interests, acts  or omissions of private persons who would be prone  to harass in criminal proceedings and prosecution to demoralise a public servant.      The nexus between the discharge of the public duty  and the  offending  act  or omission must  be  inseparable.  The obvious reason is to balance the public good and  efficiency of  the performance of the public duty by a  public  servant and  the legitimate and bona fide grievance of an  aggrieved person.   Sometimes  while  discharging  or   purported   to discharge  the public duty, the officer may honestly  exceed his  limit  or pass an order or take a  decision  which  may later  be  found to be illegal, etc.  Therefore,  the  prior sanction by the appropriate Government is an assurance to  a public   servant   to  discharge   his  official   functions diligently, efficiently and honestly without fear or favour, without having haunt of later harassment and  victimization, so  that  he  would serve his best in the  interest  of  the public.      The offending act must be integrally connected with the discharge  of duty and should not be fanciful or  pretended. If  the  act  complained of is  directly,  and  inextricably connected  with  the  official  duty,  though  it  was  done negligently, or in dereliction of duty or in excess thereof, Section 197 and similar provisions operate as a canopy                                                        46 against  malicious,  vexatious or  frivolous  accusation  or prosecution  at  the hands of the aggrieved persons.  It  is well setted law that public servant can only be said to  act or purported to act in the discharge of his official duty if his  act or omission is such as to lie within the  scope  of his  official duty. It is not every offence committed  by  a public  servant that requires sanction for prosecution,  nor even  every  act done by him while he  actually  engaged  or purported to have engaged under colour of his official  duty that receives protection from prosecution. If questioned  he must  claim that he had done by virtue of office and  it  is inextricably connected with the duty. Sanction then would be necessary,  irrespective of whether it was in fact a  proper discharge  of  his  duty or not is a matter  of  defence  on merits, which would be considered at the trial and could not arise  at the time of grant of sanction which  must  precede taking cognizance of the prosecution. Therefore, there  must be  reasonable  connection between the acts  complained  and discharge  or purported discharge of the official duty,  the act or omission must bear such a  relation to the duty  that the   accused  could  lay  reasonable,  nexus  between   the offending  act or omission and the duty but not a  pretended or  fanciful  claim  that he did it in  the  course  of  the performance  of  his duty. It is no part of the  duty  of  a public  servant to enter into conspiracy; to  fabricate  the records;   falsification   of   the   accounts;   fraud   or misappropriation   or  demand  and  acceptance  of   illegal gratification  though  the exercise of power  given  him  an occasion to commit the offences. In K.Satwant Singh  v.State of  Punjab, [1960] 2 SCR 89 this court held that the act  of cheating  or abatement thereof has no reasonable  connection with the discharge of the official duty or that he did so in the  course  of  performance  of  his  duty.  The  same  was reiterated  in  Harihar  Prasad v.State  of  Bihar,  [1972]3 SCC89.

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    In  S.B.Saha v.Kochar,[1980] 1 SCR 111 this Court  held that  offence under ss.409 and 120B cannot be held  to  have been  committed  while acting or purporting to  act  in  the discharge  of  the  official duty  and  have  no  reasonable connection and bear no direct connection or inseparable link with the duty as a public servant. The official status  must have  furnished  the accused an opportunity or  occasion  to commit the alleged criminal acts.      It  is  equally  well  settled  that  "before  granting sanction  the authority or the appropriate Govt.  must  have before it the necessary report and the material facts  which prima  facie establish   the commission of  offence  charged for  and that the appropriate Government would  apply  their mind  to  those  facts". The order of sanction  only  is  an administrative  act  and not a quasi-judicial one nor  is  a lis involved.                                                        47 Therefore,  the order of sanction need not contain  detailed reasons in support thereof as was contended by Sri Jain. But the basic facts that constitute the offence must be apparent on  the  impugned  order and the record must  bear  out  the reasons   in  that  regard.  The  question  of   giving   an opportunity  to  the  public servant at that  stage  as  was contended  for  the  respondents  does  not  arise.   Proper application  of  mind  to the existence  of  a  prima  facie evidence  of  the commission of the offence is only  a  pre- condition  to  grant or refuse to grant sanction.  When  the Govt. Accorded sanction, s.114(e) of the Evidence Act raises presumption  that  the  official acts  have  been  regularly performed. The burden is heavier on the accused to establish the contra to rebut that statutory presumption. Once that is done  then  it  is the duty of the  prosecution  to  produce necessary record to establish that after application of mind and  consideration  thereof  to the  subject  the  grant  or refusing  to  grant  sanction was made  by  the  appropriate authority. At any time before the Court takes cognizance  of the  offence  the  order of sanction could be  made.  It  is settled  law that issuance of the process to the accused  to appear before the court is sine quo non of taking cognizance of  the offence. The emphasis of s.197(1) or  other  similar provisions  that  "no court shall take  cognizance  of  such offence  except  with  the previous  sanction"  posits  that before taking cognizance of the offence alleged, there  must be  before  the  court  the prior  sanction   given  by  the competent  authority. Therefore, at any time  before  taking cognizance  of  the  offence it is  open  to  the  competent authority to grant sanction and the prosecution is  entitled to  produce  the order of sanction. Filing  of  charge-sheet before the court without sanction per se is not illegal, nor a  condition  precedent.  A perusal of  the  sanction  order clearly indicates that the Govt. appears to have applied its mind  to the facts placed before it and considered them  and then granted sanction. No evidence has been placed before us to come to a different conclusion. Accordingly we hold  that the High Court committed manifest error of law to quash  the charge-sheet on those grounds.      The another crucial question is whether the High Court, in exercise of its extra-ordinary jurisdiction under Art.226 of   the  Constitution,  would  interfere  and   quash   the chargesheet. The High Court found that the documents  relied on  by the respondents/accused were not denied by the  State by  filing  the Counter Affidavit. Therefore, they  must  be deemed to have been admitted. On that premise the High Court found  that  there is no prima facie case was  made  out  on merits  and chances of ultimate conviction is  "bleak".  The

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court is not passive spectator in the drama of  illegalities and  injustice. The inherent power of the court  under  Art. 226 of the Constitution of India is permitted to                                                        48 be  resorted  to.  When  the  documents  relied  on  by  the respondents "demonstrate that no prima facie offence is made out on the face value of those materials, then the  criminal prosecution  should  not be allowed to continue  and  so  it should   be   quashed",  and  "in  such  a   situation   and circumstances the petitioners who had got a right under  the Constitution  for  the  protection  of  their  liberty  have rightly  approached  this  Court and  this  court  in  these circumstances  has  no  option but to grant  the  relief  by quashing the F.I.R. and both the charge-sheets". Accordingly it  quashed  them.  If  this  decision  is  upheld,  in   my considered  view startling and disastrous consequence  would ensue.  Quashing the chargesheet even before  cognizance  is taken  by a criminal court amounts to "killing a still  born child’.  Till  the criminal court takes  cognizance  of  the offence  there is no criminal proceedings pending. I am  not allowing the appeals on the ground that alternative remedies provided  by  the Code as a bar. It may be  relevant  in  an appropriate  case.  My view is that  entertaining  the  writ petitions against charge-sheet and considering the matter on merit  in  the  guise of prima facie evidence  to  stand  on accused  for trial amounts to pre-trial of a criminal  trial under  Articles  226  or  227  even  before  the   competent Magistrate  or  the Sessions Court takes cognizance  of  the offence.  Once the proceedings are entertained  the  further proceedings get stayed. Expeditious trial of a criminal case is the cardinal rule. Delay feeds injustice to social  order and entertaining writ petitions would encourage to delay the trial by diverse tricks. It is not to suggest that under  no circumstances a writ petition should be entertained. As  was rightly  done  by Rajasthan High Court in this case  at  the instance  of  the directors of the company, wisdom  lies  to keep  the hands back and relegate the accused to pursue  the remedy  under the Code. In several cases this Court  quashed the  criminal proceeding on the sole ground of delay.  In  a case,  F.I.R. filed in 1954 for violation of the  provisions of  the Customs Act and Foreign Exchange Regulation Act  was challenged in the Allahabad High Court. It was  deliberately kept pending in the High Court and in this Court till  1990. The accusation was violation of law by named persons in  the name  of  non-existing firm. The F.I.R. was quashed  in  the year 1990 by another Bench to which I was a Member solely on the  ground  of delay. He achieved his  object  of  avoiding punishment.  This would show that an accused with a view  to delay the trial, resorts to writ proceedings, raises several contentions  including one on merit as vehemently  persisted by  Sri  Jain to consider this case on merits and  have  the proceedings  kept  pending.  The result would  be  that  the people  would  loss faith in the efficacy of  rule  of  law. Documents relied on by the respondents are subject to  proof at  the  trail  and  relevancy. If proved  to  be  true  and relevant that they may                                                   49 serve  as  a defence for the respondents at the  trial.  The State  quite  legitimately and in my view  rightly  did  not choose   to   file   the  Counter   affidavit   denying   or contradicting  the  version  of the  respondents,  in  those documents.  The commission of offence cannot be  decided  on affidavit  evidence. The High Court has taken  short  course "in  annihilating the still born prosecution" by  going into the  merits  on the  plea of proof of prima facie  case  and

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adverted  to  those  facts  and  gave  findings  on  merits. Grossest  error of law has been committed by the High  Court in  making  pre-trial of a criminal case in  exercising  its extraordinary jurisdiction under Art.226. After the  charge- sheet  was filed, the F.I.R. no longer remains sheet  achor. The charge-sheet and the evidence placed in support  thereof from  the base to take or refuse to take cognizance  by  the competent Court. It is not the case that no offence has been made  out  in the charge-sheets and  the  First  Information Report. It is, therefore, not necessary to consider all  the decisions  dealing with the scope of the power of  the  High Court  either  under  s. 482 Cr. P.C. or  Art.  226  of  the Constitution to quash the First Information Report.      The decision of this court, strongly relied on,  namely State of West Bengal v.Swaran Kumar, [1932] 3 SCR 121 is  of no assistance to the respondents. In that case it was  found that the First Information Report did not disclose the facts constituting   the   offence.      Madhaorao  J. Scindhia v.Sambhaji Rao, [1988] 1SCC  692 also  does  not  help  the respondents.  In  that  case  the allegations  constitute civil wrong as the trustees  created tenancy  of  Trust  property to favour the  third  party.  A private complaint was laid for the offence under s. 467 read with  s. 34 and s. 120B I.P.C. which the High Court  refused to  quashed under s. 482. This court allowed the appeal  and quashed  the proceedings on the ground that even on its  own contentions  in the complaint, it would be a case of  breach of  trust  or a civil wrong but no ingredients  of  criminal offences  were made out. On those facts and also due to  the relation  of the settler, the mother, the appellant and  his wife, as the son and daughter-in-law, this Court  interfered and allowed the appeal. This Court found thus:           "  The  court cannot be utilized for  any  oblique           purpose and where in the opinion of court  chances           of an ultimate conviction is bleak and, therefore,           no  useful  purpose  is likely  to  be  served  by           allowing  a criminal prosecution to continue,  the           court  may  while taking  into  consideration  the           special facts of a case also quash the proceedings           even                                                        50           though it may be at a preliminary stage." Therefore,  the  ratio therein is of no  assistance  to  the facts in this case. It cannot be considered that this  court laid  down  as a preposition of law that in every  case  the court  would examine at the preliminary stage whether  there would  be  ultimate chances of conviction on  the  basis  of allegation and exercise of the power under s.482 or Art. 226 to   quash   the  proceedings  or   the   charge-sheet.   In Sirajiddin’s  case  the Madras High Court  and  this  Court, though noticed serious infirmity committed in the course  of investigation by the investigating officer did not quash the charge-sheet.      I  am contrained to hold that the learned  Judges  have committed  gravest errors of law in quashing the F.I.R.  and Charge-sheets.  Since  the proceedings are yet  to  start  I decline to go into the merits of the respective contentions, though  vehemently argued by Shri R.K. Jain, on merits,  and Kapil Sibal in rebuttal since expressing any view either way would  gravely  prejudice  the case of the  accused  or  the prosecution.  The  appeals are allowed with no order  as  to costs. R.S.S.                                  Appeals allowed.                                                        51

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