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whether the Special Judge could refuse to accept closure report and direct reinvestigation of the case for the second time in order to proceed further although he was confronted with the legal impediment indicating lack of sanction for prosecution in the matter. =We are therefore of the considered view that the Special Judge in the wake of all these legal flaws as also the fact that the Special Judge under the circumstance was not competent to proceed in the matter without sanction for prosecution, could not have ordered for reinvestigation of the case for the third time by refusing to accept closure report dated 18.05.2004. This amounts to sheer abuse of the process of law resulting into vexatious proceeding and harassment of the appellant for more than 10 years without discussing any reason why he disagreed with the report of the Lokayukta and consequently the closure report which would have emerged if the Special Judge had carefully proceeded in accordance with the procedure enumerated for initiation of proceeding under the Code of Criminal Procedure.

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REPORTABLE

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

 

CRIMINAL APPEAL NO.166 OF 2012

(Arising out of Special Leave Petition (Crl.) No.1548/2011)

 

 

VASANTI DUBEY . Appellant

 

Versus

 

STATE OF MADHYA PRADESH ..

 

Respondent

 

 

J U D G E M E N T

 

 

GYAN SUDHA MISRA, J.

 

 

Leave granted.

 
2. The appellant herein has challenged the order dated

 

24.1.2011 passed by the High Court of Judicature at Jabalpur

 

by which the Criminal Revision Petition No. 839/2004 was

 

dismissed holding therein that the impugned order passed by

 

the Special Judge (under the Prevention of Corruption Act,
1988) District Narsinghpur did not suffer from any apparent

 

error of jurisdiction.

 

3. In the backdrop of the facts and circumstances of

 

the case to be related hereinafter, the question inter alia

 

which falls for determination by this Court is whether the

 

Magistrate/Special Judge could straightway direct for

 

submission of charge-sheet in case he refused to accept final

 

report/closure report of the police/investigating agency and

 

thereafter direct the police to submit charge-sheet in case he

 

was of the opinion that the case was not fit to be closed and it

 

required to be proceeded further. The question which also

 

requires consideration is whether the Special Judge could

 

refuse to accept closure report and direct reinvestigation of the

 

case for the second time in order to proceed further although

 

he was confronted with the legal impediment indicating lack of

 

sanction for prosecution in the matter.

 

4. However, the question for determination is not a

 

new or an extra-ordinary one as the question has cropped up

 

time and again before this Court as to what course is left open

 

for a Magistrate in a situation when the police submits final

 

report under Section 173, Cr.P.C. or closure report is

 

 

2
submitted by any other investigating agency stating that the

 

case is not made out on account of lack of evidence or for any

 

other reason.

 

5. But before we proceed to deal with the question

 

involved herein, it is essential to state the salient facts and

 

circumstances of this matter which has reached upto this

 

Court by way of this special leave petition. On perusal of the

 

materials on record, it emerges that the appellant – Smt.

 

Vasanti Dubey was posted as the Block Development Officer,

 

Janpad Panchayat, Gotegon, Narsinghpur (M.P.) and in that

 

capacity was competent to award a contract for constructing

 

concrete road in the village Baroda. The contract was awarded

 

to one Dinesh Kumar Patel who was the Sarpanch of village

 

Baroda for constructing the concrete road in the village and

 

was initially paid a sum of Rs.15,000/- vide cheque No.

 

101626 dated 27.2.2001 for execution of the contract. He was

 

further paid a sum of Rs.15,000/- vide cheque No.101629

 

dated 8.5.2001 for execution of the contract which was

 

awarded to him. The awardee Sarpanch – Dinesh Kumar Patel

 

was still further paid Rs.10,000/- vide cheque No.101635

 

dated 23.5.2001 and the balance payment of Rs. 10,000/-

 

 

3
was also finally paid to him vide cheque No.319586 dated

 

1.8.2001 towards full and final settlement of the consideration

 

for the above mentioned contract. Admittedly, all the afore-

 

mentioned payments were made to the Sarpanch contractor –

 

Dinesh Kumar Patel which were due to be paid to him and the

 

cheques were duly encashed.

 

6. However, the Sarpanch/contractor after several

 

days of receipt of the final payment, filed a complaint against

 

the appellant/BDO – Smt. Vasanti Dubey in the Special Police

 

Establishment, Lokayukta Office, Jabalpur stating inter-alia

 

that the complainant – Dinesh Kumar Patel had been paid a

 

sum of Rs.40,000/- only with respect to the contract awarded

 

to him and when the balance payment of Rs.10,000/- was

 

demanded by him, the appellant demanded a sum of

 

Rs.3,000/- as commission. The complainant’s further case is

 

that he although paid a sum of Rs.500/-, he felt aggrieved

 

and hence did not pay any further amount to the appellant

 

but preferred to lodge a complaint on 7.8.2001 in regard to

 

the illegal demand made by her. Since the alleged incident

 

was falling within the jurisdiction of the Special Police

 

Establishment, Lokayukta Office, Bhopal, a case was

 

 

4
registered against the appellant on the basis of the complaint

 

on the same date i.e. 7.8.2001 under Sections 7 and 13(1)(d)

 

read with Section 13(1)(2) of the Prevention of Corruption

 

Act, 1988.

 

7. The Special Police Establishment, Lokayukta Office,

 

proceeded to investigate the matter and carried out detailed

 

investigation and also recorded statements of various persons

 

including that of the complainant on 26.3.2002. In course of

 

investigation, the complainant resiled from his earlier version

 

and stated that he had made a false complaint at the instance

 

of someone else whose name he did not divulge. Further

 

statement of one Shankar Singh was also recorded that the

 

complainant had paid Rs.2,500/- to the appellant when she

 

had gone to the bathroom and the money thereafter was

 

recovered from her. The police also seized various

 

documents from the office of the BDO located in the office of

 

Janpad Gotegaon which included the files containing the

 

details of the cheques from which payment had been made

 

to the complainant. After completion of the investigation by

 

the Office of Lokayukta who was competent to get the matter

 

investigated by the police and in view of the statement of the

 

 

5
complainant that he made false complaint at the instance of

 

someone else as also on account of the fact that the entire

 

payment except Rs. 10,000/- had been made by the appellant

 

– Smt. Vasanti Dubey to the complainant prior to the date on

 

which the complaint was filed, it was inferred that the

 

complaint did not disclose commission of any offence and

 

hence the Lokayukta directed that a closure report be filed

 

in regard to the complaint lodged against Vasanti Dubey and

 

appropriate action be initiated against the complainant for

 

lodging a false complaint.

 

8. Accordingly, the closure report was submitted

 

before the Special Judge, Narsinghpur but by order dated

 

5.8.2002, the Special Judge refused to accept the same. He

 

thus rejected the closure report and thereafter directed the

 

police to file charge-sheet in the case against the appellant

 

against which the State Government filed a criminal revision

 

bearing Criminal Revision No. 1206/2002 in the High Court

 

challenging the order of the Special Judge who refused to

 

accept the closure report and issued direction for submission

 

of the charge-sheet against the appellant.

 

 

6
9. The learned single Judge of the High Court by

 

order dated 14.1.2003 was pleased to allow the Revision

 

Petition and quashed the order passed by the Special Judge

 

who had refused to accept the closure report and had directed

 

submission of charge-sheet against the appellant on the

 

ground that there is no power expressly or impliedly conferred

 

under the Code on a magistrate to call upon the police to

 

submit a charge-sheet when police had sent a report under

 

Section 169 of the Code stating that there is no case made

 

out for sending up an accused for a trial. The learned single

 

Judge took this view relying upon the ratio of the authoritative

 

pronouncement of this Court delivered in the matter of

 

Abhinandan Jha & Ors. Vs. Dinesh Mishra1 wherein it was

 

observed that the functions of the magistrate and the police

 

are entirely different and though the magistrate may or may

 

not accept the report and take action according to law, he

 

cannot impinge upon the jurisdiction of the police by

 

compelling them to change their opinion so as to accord with

 

his view. The learned Judge also took notice of the

 

observation of the Supreme Court which had further been

 

pleased to hold therein that the magistrate however, while
1 AIR 1968 SC 117 = (1967) 3 SCR 668

 
7
disagreeing with a final report/closure report of a case can

 

take cognizance under Section 190(1)(c) or order further

 

investigation under Section 156(3) of the Code of Criminal

 

Procedure but cannot straightaway direct for submission of

 

charge-sheet to the police. Applying the aforesaid test as laid

 

down by this Court in the case of Abhinandan Jha (supra), the

 

impugned order passed by the Special Judge, Narsinghpur

 

was held to be illegal and without jurisdiction and

 

consequently was quashed. However, the learned single

 

Judge had added an observation in the judgment and order

 

that if the learned Special Judge thinks it fit and appropriate

 

to take cognizance, the same can be taken under Section

 

190(c) of the Code of Criminal Procedure or he may direct the

 

Lokayukta police for further investigation. As already stated

 

the revision accordingly was allowed and the impugned order

 

of the Special Judge dated 5.8.2002 was quashed.

 

10. The Special Police Establishment, Lokayukta Office,

 

Jabalpur, thereafter again got the complaint examined in the

 

light of the statement of the witnesses and the evidence and

 

noticed that there were no materials against the appellant to

 

proceed as she had made all payments from 27.2.2001 up to

 

 

8
2.8.2001 yet a complaint dated 7.8.2001 was subsequently

 

filed by the complainant – Dinesh Kumar Patel alleging that

 

the appellant had demanded commission/bribe of Rs.2,500/-

 

from the complainant in order to clear his bills which

 

complaint was found to be untrustworthy and hence

 

unacceptable since all payments had already been received by

 

the complainant prior to the lodgement of complaint specially

 

in view of the subsequent version of the complainant that he

 

had lodged a malicious complaint at the instance of a rival of

 

the appellant.

 

11. The Special Police Establishment, Lokayukta Office,

 

therefore, once again filed an application/closure report

 

before the Special Judge, Narsinghpur but the Special Judge,

 

Narsinghpur this time again rejected the closure report by

 

order dated 18.5.2004 observing therein that it had been

 

clarified by order dated 5.8.2002 that there is sufficient basis

 

to take cognizance against the appellant – Smt. Vasanti

 

Dubey and there is no change in the circumstance on the

 

basis of which closure report can be accepted clearly

 

overlooking that the High Court had already quashed the

 

order dated 5.8.2002 passed by the Special Judge as it had

 

 

9
held that the Special Judge had no jurisdiction to direct the

 

police to submit charge sheet in case he refuses to accept

 

closure report although he could take cognizance under

 

Section 190(C) of the Cr.P.C. or direct further investigation of

 

the case. In pursuance of this, further investigation was done

 

by the Special Police Establishment, Lokayukta Office and

 

closure report was submitted after completion of

 

reinvestigation. On this occasion, when the Special Judge

 

refused to accept closure report, it was his statutory and legal

 

duty to either pass a fresh order taking cognizance if he

 

refused to dismiss the complaint and proceed with the

 

enquiry under Section 200 Cr.P.C. by examining the

 

complainant after which he had to record reasons why he

 

disagreed with the closure report. But the Special Judge did

 

not discharge this legal obligation and simply in a

 

mechanical manner directed the investigating agency to obtain

 

sanction to prosecute the appellant despite the fact that the

 

investigating agency had consistently reported that sufficient

 

evidence was not there to justify prosecution of the appellant.

 

At this stage, if the Special Judge found that there were

 

sufficient ground to proceed, it could have taken cognizance

 

 

10
but having been confronted with the legal impediment that it

 

could not proceed without sanction for prosecution, the

 

Special Judge directed to reinvestigate the matter once again

 

for the second time and also directed the investigating agency

 

to obtain sanction for prosecution.

 

12. Hence, the appellant assailed the order of the

 

Special Judge dated 18.5.2004 by filing a criminal revision

 

petition No. 839/2004 but the High Court on this occasion

 

dismissed the revision petition and was pleased to hold that

 

the order of the Special Judge who had refused to accept the

 

closure report for the second time did not suffer from any

 

apparent error of jurisdiction. The learned single Judge

 

while dismissing the revision petition observed that it shall

 

still be open to the appellant to raise all such pleas as are

 

available to her under the law in case charge-sheet is filed

 

against her.

 

13. However, the learned single Judge completely

 

missed the ratio laid down in the case of Abhinandan Jha

 

(supra) which had been relied upon by the learned single

 

Judge of the High Court on an earlier occasion also when the

 

order of the Special Judge refusing to accept closure report

 

 

11
and directing submission of charge-sheet was quashed and

 

the entire legal position was summed up in unequivocal terms

 

as follows:-

 
“There is no power, expressly or impliedly

conferred under the Code, on a Magistrate

to call upon the police to submit a charge-

sheet, when they have sent a report under

Section 169 of the Code, that there is no

case made out for sending up an accused

for trial. The functions of the magistrate

and the police are entirely different, and

though, the Magistrate may or may not

accept the report, and take suitable action

according to law, he cannot impinge upon

the jurisdiction of the police, by compelling

them to change their opinion so as to

accord with his view.”

 
This position has been further reiterated and reinforced in a

 

recent judgment of this Court delivered in the matter of Ram

 

Naresh Prasad vs. State of Jharkhand2, wherein it has been

 

held that when the police submitted a final report of

 

investigation of the case which in colloquial term is called

 

closure report, the magistrate cannot direct the police to

 

submit the charge-sheet. However, on the basis of the

 

material in the charge-sheet, he may take cognizance or direct

 

further investigation. In fact, this position is clearly laid down

 
2 (2009) 11 SCC 299

 
12
under Section 190 read with Section 156 of the Cr.P.C. itself

 

and the legal position has been time and again clarified by

 

this Court in several pronouncements viz. in the matter of

 

Bains vs. State3, wherein their lordships have summarised the

 

position as follows:-

 
“1. When a Magistrate receives a complaint,

he may, instead of taking cognizance at once

under Section 190(1)(a) direct a police

investigation under Section 156(3) ante;

 

2. Where, after completion of the

investigation, the police sends an adverse

report under Section 173(1), the Magistrate

may take any of the following steps :

 

“i. If he agrees with police report,

and finds that there is no

sufficient ground for proceeding

further, he may drop the

proceeding and dismiss the

complaint.

 

ii. He may not agree with the police

report and may take cognizance

of the offence on the basis of the

original complaint, under Section

190(1)(a) and proceed to examine

the complainant under Section

200.

 

iii. Even if he disagrees with the

police report, he may either take

cognizance at once upon the

complaint, direct an enquiry

under Section 202 and after such
3 AIR 1980 SC 1883 = 1980 (4) SCC 631

 
13
enquiry take action under Section

203. However, when the police

submits a final report or closure

report in regard to a case which

has been lodged by the informant

or complainant, the magistrate

cannot direct the police to

straightway submit the charge-

sheet as was the view expressed

in the matter of Abhinandan Jha

(supra) which was relied upon in

the matter of Ram Naresh

Prasad (supra).”

 
14. Thus it is undoubtedly true that even after the

 

police report indicates that no case is made out against the

 

accused, the magistrate can ignore the same and can take

 

cognizance on applying his mind independently to the case.

 

But in that situation, he has two options (i) he may not

 

agree with the police report and direct an enquiry under

 

Section 202 and after such enquiry take action under Section

 

203. He is also entitled to take cognizance under Section 190

 

Cr.P.C. at once if he disagrees with the adverse police report

 

but even in this circumstance, he cannot straightway direct

 

submission of the charge-sheet by the police.

 

15. In the light of the aforesaid legal position, when we

 

examined the merit of the instant matter, we noticed that the

 

order dated 18.5.2004 passed earlier by the Special Judge

 
14
straightway directing the police to submit charge-sheet was

 

quashed by the learned single Judge of the High Court and

 

liberty was left open to him either to take cognizance under

 

Section 190(c) of the Cr.P.C. or direct the Lokayukta Police for

 

further investigation. In spite of this order, the Special Judge

 

did not pass an order taking cognizance which he could have

 

done under Section 190(c) of the Cr.P.C. However, he chose

 

to direct office of the Lokayukta to enter into further

 

investigation which after further investigation assigned

 

reasons given out hereinbefore, stating that in view of the

 

statement of the complainant that he had complained at the

 

instance of a rival of the accused as also the fact that entire

 

payment had already been made by the complainant prior to

 

the lodgement of complaint, no case was made out against the

 

complainant. In spite of this, if the Special Judge considered

 

it legal and appropriate to proceed in the matter, he could

 

have taken cognizance upon the complaint and could have

 

proceeded further as per the provision under Section 200 of

 

the Cr.P.C. by examining the complainant and if there were

 

sufficient ground for proceeding, he could have issued process

 

for attendance of the accused. However, such process could

 

 

15
not have been issued, unless the magistrate found that the

 

evidence led before him was contradictory or completely

 

untrustworthy. Conversely, if he found from such evidence

 

that sufficient ground was not there for proceeding i.e. no

 

prima facie case against the accused was made out, he had to

 

dismiss the complaint, since the complaint did not disclose

 

the commission of any offence. But instead of taking any

 

step either by issuing the process or dismissing the complaint

 

at once, he could have taken immediate step as a third

 

alternative to make an enquiry into the truth or falsehood of

 

the complaint or for an investigation to be made by the police

 

for ascertaining whether there was any prima facie evidence so

 

as to justify the issue of process. In short, on receipt of a

 

complaint, the magistrate is not bound to take cognizance but

 

he can without taking cognizance direct investigation by the

 

police under Section 156(3) of Cr.P.C. Once, however, he

 

takes cognizance he must examine the complainant and his

 

witnesses under Section 200. Thereafter, if he requires police

 

investigation or judicial enquiry, he must proceed under

 

Section 202. But in any case he cannot direct the Police to

 

straightaway file charge-sheet which needs to be highlighted

 

 

16
as this point is often missed by the Magistrates in spite of a

 

series of decisions of this Court including the case of

 

Abhinandan Jha (supra) and Ram Naresh Prasad (supra)

 

referred to hereinbefore.

 

16. When the facts of the instant matter is further

 

tested on the anvil of the aforesaid legal position, we find that

 

the Special Judge instead of following the procedure

 

enumerated in the Cr.P.C. appeared to insist on rejecting the

 

closure report given by the Special Police Establishment,

 

Lokayukta Office and in the process consistently committed

 

error of law and jurisdiction not only once, but twice. On the

 

first occasion when the order of the Special Judge was

 

quashed and set aside by the High Court granting liberty to

 

the Special Judge either to take cognizance under Section

 

190(c) or order for further investigation as he had committed

 

an error of jurisdiction by directing the police to straightway

 

submit the charge-sheet against the accused-petitioner, the

 

Special Judge did not consider it appropriate to take

 

cognizance but ordered for further investigation by Lokayukta

 

Police and when the matter was reinvestigated by the Special

 

Police Establishment of the Lokayukta Office, the Special

 

 

17
Judge in spite of the finding of the investigating agency

 

holding that no further material to proceed in the matter was

 

found, refused to accept the closure report and this time it

 

further realized that it could not proceed in the matter as

 

there was no sanction for prosecution, which the Special

 

Judge obviously noticed since he was not in a position to

 

take cognizance directly under Sections 7, 13(1)(d) of the

 

Prevention of Corruption Act in absence of sanction which was

 

a statutory requirement. In spite of this, he refused to accept

 

closure report but recorded a direction to obtain sanction for

 

prosecution of the appellant and thereafter ordered for

 

reinvestigation of the complaint for the second time creating a

 

peculiar and anomalous situation which is not in consonance

 

with the provision of the Code of Criminal Procedure

 

enumerated under the Chapter relating to conditions requisite

 

for initiation of proceedings.

 

17. It may be worthwhile to highlight at this stage that

 

the enquiry under Section 200 Cr.P.C. cannot be given a go-

 

bye if the Magistrate refuses to accept the closure report

 

submitted by the investigating agency as this enquiry is legally

 

vital to protect the affected party from a frivolous complaint

 

 

18
and a vexatious prosecution in complaint cases. The

 

relevance, legal efficacy and vitality of the enquiry enumerated

 

under Section 200 Cr.P.C., therefore, cannot be undermined,

 

ignored or underplayed as non compliance of enquiry under

 

Section 200 Cr.P.C. is of vital importance and necessity as it is

 

at this stage of the enquiry that the conflict between the

 

finding arrived at by the investigating agency and enquiry by

 

the Magistrate can prima facie justify the filing of the

 

complaint and also offer a plank and a stage where the

 

justification of the order of cognizance will come to the fore.

 

This process of enquiry under Section 200 Cr.P.C. is surely

 

not a decorative piece of legislation but is of great relevance

 

and value to the complainant as well as the accused.

 

18. It is no doubt possible to contend that at the stage

 

of taking cognizance or refusing to take cognizance, only prima

 

facie case has to be seen by the Court. But the argument

 

would be fit for rejection since it is nothing but mixing up two

 

different and distinct nature of cases as the principle and

 

procedure applied in a case based on Police report which is

 

registered on the basis of First Information Report cannot be

 

allowed to follow the procedure in a complaint case. A case

 

 

19
based on a complaint cannot be allowed to be dealt with and

 

proceeded as if it were a case based on Police report. While in

 

a case based on Police report, the Court while taking

 

cognizance will straightaway examine whether a prima facie

 

case is made out or not and will not enter into the correctness

 

of the allegation levelled in the F.I.R., a complaint case

 

requires an enquiry by the Magistrate under Section 200

 

Cr.P.C. if he takes cognizance of the complaint. In case he

 

refuses to take cognizance he may either dismiss the

 

complaint or direct the investigating agency to enter into

 

further investigation. In case, he does not exercise either of

 

these two options, he will have to proceed with the enquiry

 

himself as envisaged and enumerated under Section 200

 

Cr.P.C. But, he cannot exercise the fourth option of directing

 

the Police to submit a charge-sheet as such a course is clearly

 

not envisaged under the Cr.P.C. and more so in a complaint

 

case. As already stated, this position can be clearly deduced

 

from the catena of decisions including those referred to

 

hereinbefore but needs to be reinstated as time and again this

 

magisterial error reaches up to this Court for rectification by

 

judicial intervention.

 

 

20
19. The instant matter is one such example and is one

 

step ahead wherein the Special Judge was confronted with yet

 

another legal impediment of lack of sanction for prosecution

 

giving rise to a peculiar situation when he noticed and

 

recorded that he could not proceed in the matter under the

 

Prevention of Corruption Act without sanction for prosecution,

 

but in spite of this he directed to obtain sanction, ordered for

 

reinvestigation and consequently refused to accept closure

 

report.

 

20. Since the Special Judge in the instant matter

 

refused to accept the closure report dated 18.05.2004 without

 

any enquiry or reason why he refused to accept it which was

 

submitted by the Special Police Establishment, Lokayukta

 

Office, Jabalpur after reinvestigation for which reasons had

 

been assigned and there was also lack of sanction for

 

prosecution against the appellant which was necessary for

 

launching prosecution under the Prevention of Corruption Act,

 

we deem it just and appropriate to hold that the Special Judge

 

clearly committed error of jurisdiction by directing

 

reinvestigation of the matter practically for the third time in

 

spite of his noticing that sanction for prosecution was also

 

 

21
lacking, apart from the fact that the Special Police

 

Establishment, Lokayukta Office, after reinvestigation had

 

given its report why the matter was not fit to be proceeded

 

with.

 

21. We are therefore of the considered view that the

 

Special Judge in the wake of all these legal flaws as also the

 

fact that the Special Judge under the circumstance was not

 

competent to proceed in the matter without sanction for

 

prosecution, could not have ordered for reinvestigation of the

 

case for the third time by refusing to accept closure report

 

dated 18.05.2004. This amounts to sheer abuse of the

 

process of law resulting into vexatious proceeding and

 

harassment of the appellant for more than 10 years without

 

discussing any reason why he disagreed with the report of the

 

Lokayukta and consequently the closure report which would

 

have emerged if the Special Judge had carefully proceeded in

 

accordance with the procedure enumerated for initiation of

 

proceeding under the Code of Criminal Procedure.

 

22. In view of the aforesaid discussion based on the

 

existing facts and circumstances, we deem it just and

 

appropriate to set aside the impugned order passed by the

 

 

22
Special Judge refusing to accept the closure report dated

 

18.05.2004 and consequently the judgment and order of the

 

High Court by which the order of the Special Judge was

 

upheld, also stands quashed and set aside. Accordingly, the

 

appeal is allowed.

 

 

………………………….J

(Asok Kumar Ganguly)

 

 

…………………………J

(Gyan Sudha Misra

 

New Delhi,

January 17, 2012

 

 

23

 

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