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PETITIONER: STATE THROUGH CBI

       Vs.

RESPONDENT: RAJ KUMAR JAIN

DATE OF JUDGMENT:       04/08/1998

BENCH: M.K. MUKHERJEE, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      On May,  11, 1988, the Central Bureaus of Investigation (CBI), the  appellant before  us, registered  a case against the respondent,  who was  then a  junior Engineer in the New Delhi Municipal  corporation, under  Section 5(2)  read with Section 5(1)  (e) of  the Prevention of Corruption Act, 1947 (’Act"  for   short)  on  the  allegation  that  he  was  in possession of  assets disproportionate  to his known sources of income.  In the investigation that followed, C.B.I. found that the  allegations made  against the respondent could not be substantiated  and, accordingly,  it submitted its report under Section 173(2) Cr.P.C. before the Special Judge, Delhi praying for closure of the case.      The Special  Judge declined to accept the report on the ground that after the investigation was complete, the C.B.I. was  required   to  place  the  materials  collected  during investigation before  the sanctioning  authority and  it was for that authority to grant or refuse sanction. According to the Special  Judge, it  was only  with the  opinion  of  the sanctioning authority  that  the  C.B.I.  could  submit  its report  under   Section  173(2)  Cr.  P.C.  With  the  above observations  the   Special  Judge   issued  the   following directions:      "  It   is  directed  that  further      investigation should  be  conducted      and  in  the  first  instance,  the      prosecution/Investigating   officer      must   approach    the    concerned      sanctioning authority before coming      to the  Court to  find out  if  the      said    authority    would    grant      permission to prosecute the accused      or not."      Aggrieved by the above directions C.B.I. moved the High Court by filing a revision petition which was dismissed with a fining  that the  directions issued  by the  Special judge were proper and legal. Hence this appeal.      Section 6(1)  of the  Act, which  is relevant  for  our present purpose, reads as under: -      (1)   "   No   Court   shall   take

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    cognizance of an offence punishable      under Section  161 (or Section 164)      or Section  165 of the Indian penal      Code or  under sub-section (2) [ or      sub-section (3A)  ] of Section 5 of      this  Act,  alleged  to  have  been      committed  by   a  public   servant      except with  the previous sanction,      -      (a) in  the case of a person who is      employed  in  connection  with  the      affairs of  the [Union]  and is not      removable from  his office  save by      or with the sanction of the Central      Government ;      (b) in  the case of a person who is      employed  in  connection  with  the      affairs of  [a State]  and  is  not      removable from  his office  save by      or with  the sanction  of the State      Government;      (c)  in   the  case  of  any  other      person, of  the authority competent      to remove him from his office.      From a  plain  reading  of  the  above  Section  it  is evidently clear  that a  Court cannot take cognizance of the offences  mentioned   therein  without   sanction   of   the appropriate authority.  In enacting  the above  Section  the legislature thought  of providing a reasonable protection to public servants  in the  discharge of the official functions so that  they  may  perform  their  duties  and  obligations undeterred by vexatious and unnecessary prosecutions. Viewed in that context, the C.B.I. was under no obligation to place the materials  collected  during  investigation  before  the sanctioning authority, when they found that no case was made out against  the respondent.  To put  it differently, if the C.B.I had found on investigation that a prima facie case was made out  against the  respondent to  place him on trial and accordingly prepared  a charge-sheet  (challan) against  him then  only   the  question  of  obtaining  sanction  of  the authority under  Section 6(1)  of the  Act would have arisen for without  that the  Court would  not be competent to take cognizance of  the chargesheet.  It must, therefore, be said that both the special Judge and the High court were patently wrong in  the observing  that the  C.B.I.  was  required  to obtain  sanction   from  the  prosecuting  authority  before approaching the Court for accepting the report under Section 173(2) Cr. P.C. for discharge of the respondent.      As regards  the direction for further investigation, it is, of  course, true  that the Special Judge has power to so direct if  he finds,  on consideration of the police report, that the opinion formed by the Investigating officer seeking discharge of  the  respondent  is  not  based  on  full  and complete  investigation,   as  observed  by  this  Court  in Abhinandan Jha  vs. Dinesh  Mishra  [A.I.R.  1968  SC  117]. Unfortunately, however,  in issuing  the above direction the Special Judge  has not  given any  reason  whatsoever  which prompted him  to direct  further investigation  nor does  it appear tat  he has  gone through  the police  report and its accompaniments.      After recording the above finding the usual order which we are  required to  make is  to remand  the matter  to  the special Judge with a direction to look into the report under Section 173(2)  Cr.  P.C.  and  the  documents  referred  to therein to  decide whether  further investigation  should be

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ordered or  not. But  considering the  facts, that since the case was registered more than 10 years have elapsed and that such a  direction would further delay the matter we have for ourselves looked  into those  documents  and  found  that  a thorough  investigation   has  been  made  and  the  opinion expressed by  the C.B.I.  that no  prima facie case was made out against the respondent is just and proper.      On the  conclusions as  above, we allow this appeal and set aside  the impugned orders of the Special Judge and that of the High Court.