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Complaint – Section 195(1)(b)(i) and Section 195(1)(b)(iii) of the Code of Criminal Procedure and sought punishment of the accused persons under Section 120-B of the Indian Penal Code (IPC) read with Sections 193/196/420 thereof and independently under Section 193 of the IPC.- Creating a Fake Judgment and order and getting benefits under the same – When challenged by interested persons before Apex court – Fraud played by accused came to light – Apex court order for CBI enquiry – in the meanwhile concerned High court Officer with out obtaining permission from the High court filed criminal complaint before the Magistrate of CBI court – court issued summons to the accused – one of the accused being an Advocate filed discharged petition as the complaint was not filed with permission and with out sanction – Magistrate court dismissed the same – High court allowed the appeal – Apex court held that when the complainant himself lack authority to lodge a complaint , taking cognizance of the case on invalid complaint and proceeding further does not arise due to lack of Jurisdiction and as such sanction for prosecution not necessary and further more not arised = Central Bureau of Investigation , Lucknow, U.P. …..Appellant Versus Indra Bhushan Singh & Ors. …Respondents = 2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41500

Complaint – Section  195(1)(b)(i)  and  Section 195(1)(b)(iii) of the Code of Criminal Procedure and  sought  punishment  of the accused persons under Section 120-B of the Indian Penal Code (IPC)  read with Sections 193/196/420 thereof and independently  under  Section  193  of the IPC.- Creating a Fake Judgment and order and getting benefits under the same – When challenged by interested persons before Apex court – Fraud played by accused came to light – Apex court order for CBI enquiry – in the meanwhile concerned High court Officer with out obtaining permission from the High court filed criminal complaint before the Magistrate of CBI court – court issued summons to the accused – one of the accused being an Advocate filed discharged petition as the complaint was not filed with permission and with out sanction – Magistrate court dismissed the same – High court allowed the appeal – Apex court held that when the complainant himself lack authority to lodge a complaint , taking cognizance of the case on invalid complaint and proceeding further does not arise due to lack of Jurisdiction and as such sanction for prosecution not necessary and further more not arised =

 

2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41500

RANJANA PRAKASH DESAI, MADAN B. LOKUR

 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 876 OF 2002

Central Bureau of Investigation , Lucknow, U.P. …..Appellant

Versus

Indra Bhushan Singh & Ors.
…Respondents

With

CRIMINAL APPEAL NO.877 OF 2002
J U D G M E N T

Madan B. Lokur, J.

1. The three questions before us are: (i) whether the complaint filed
against the respondents under Section 195(1)(b) of the Code of Criminal
Procedure, 1973 was authorized by the Allahabad High Court; (ii) whether it
was necessary to obtain a sanction from the Allahabad High Court for filing
the complaint against the respondents, and (iii) if a sanction was
necessary, whether it was in -fact obtained. In our opinion, the first
question must be answered in the negative. Consequently, the second and
third questions do not arise or are, at best, academic in nature and need
not be answered. As such, the orders under appeal call for no interference.

The facts
2. On 25th May, 1990 a learned Single Judge of the Allahabad High
Court is said to have dealt with Writ Petition No. 5267 of 1990
(purportedly filed by Dr. Sheetal Nandwani) and passed an order to the
effect that the competitive examinations scheduled to be held on 27th May,
1990 for admission in post-graduate medical courses in State medical
colleges ought not to be held. Instead, admissions should be made on the
basis of marks obtained by the candidates in the MBBS course as has been
done in MDS courses. With this brief order the writ petition was allowed.
3. In compliance with the order dated 25th May, 1990 the State
Government cancelled the scheduled competitive examinations in seven
medical colleges in Uttar Pradesh and a direction issued to grant admission
on the basis of MBBS results.
4. For reasons that are not relevant, the medical college in Meerut
was not informed of the cancellation. Therefore, Dr. Rahul -Verma, like
several others, participated in the examination held on 27th May, 1990.
However, unlike others he filed Writ Petition No. 5548 of 1990 in the
Lucknow Bench of the Allahabad High Court in which he sought and was
granted, on 4th June, 1990 the same relief as Dr. Sheetal Nandwani on the
basis of the order dated 25th May, 1990. He was represented in the case by
his lawyer Indra Bhushan Singh. Dr. Rahul Verma is one of the respondents
in Criminal Appeal No.877 of 2002 while Indra Bhushan Singh is the
respondent in Criminal Appeal No.876 of 2002.
5. The order dated 25th May, 1990 was challenged in this Court and
the result of the petition is reported as U.P. Junior Doctors’ Action
Committee v. Dr. B. Sheetal Nandwani and Others.[1]
6. This Court found that no writ petition bearing no. 5267 of 1990
was filed by Dr. Sheetal Nandwani and obviously therefore no order was
passed on 25th May, 1990 in the said case. It was found that the entire
proceedings were fabricated and fake and this Court was satisfied that
there was deep rooted conspiracy which resulted in the purported order
dated 25th May, 1990. Consequently, this Court passed appropriate orders in
the case and also directed that -the entire matter be investigated by the
CBI which was required to identify the persons behind the deep rooted fraud
and bring them to book without any delay. It was observed that the purity
of the judicial stream should not be permitted to be polluted by a
clandestine move such as the one that was the subject matter of discussion
and citizens should not be misled by the actions of conspirators.
7. Pursuant to the directions given by this Court to investigate the
conspiracy, the CBI searched the premises of Dr. Rahul Verma and found a
copy of the order dated 25th May, 1990. The CBI also carried out
investigations with regard to the role of Indra Bhushan Singh and others.
We were informed by the learned Additional Solicitor General that the
persons responsible for the fraud leading to the order dated 25th May, 1990
have not yet been identified although about 24 years have gone by.
8. Be that as it may, on 26th August, 1991 a complaint was filed by
Shri H.D. Kandpal, Deputy Registrar (Administration), Lucknow Bench of the
Allahabad High Court in the Court of the Special Judicial Magistrate (CBI)
in Lucknow against Dr. Rahul Verma and Indra Bhushan Singh. The complaint
was filed under the provisions -of Section 195(1)(b)(i) and Section
195(1)(b)(iii) of the Code of Criminal Procedure and sought punishment of
the accused persons under Section 120-B of the Indian Penal Code (IPC) read
with Sections 193/196/420 thereof and independently under Section 193 of
the IPC.
9. The complaint gives the background facts leading to its filing and
goes on to state, inter alia, that after he had filed the writ petition,
but before it was presented to the court, Dr. Rahul Verma substituted four
pages in the writ petition as filed. In these pages, a reference is made
to the purported order dated 25th May, 1990 and two of the pages were
signed by Indra Bhushan Singh. During the hearing of the writ petition on
4th June, 1990 a photocopy of the purported order dated 25th May, 1990 was
filed in court by Indra Bhushan Singh. On the basis of this writ petition
with the interpolated or substituted pages and the purported order dated
25th May, 1990 filed during the course of hearing, a learned Single Judge
of the Allahabad High Court, Lucknow Bench passed orders on 4th June, 1990
directing the State Government to act in accordance with the purported
order dated 25th May, 1990. The complaint states, however, that the
signature of Dr. Rahul Verma -on the vakalatnama filed along with the writ
petition could not be confirmed. In the complaint, it was prayed that
cognizance of offences committed by Dr. Rahul Verma and Indra Bhushan Singh
under Section 120-B read with Sections 193, 196, and 420 of the IPC and
Section 193 of the IPC be taken and the accused persons, that is, Dr. Rahul
Verma and Indra Bhushan Singh be summoned to face trial for the offences
said to have been committed by them.
10. The complaint, as originally filed on 26th August, 1991 did not
mention that H.D. Kandpal had the authority to file it on behalf of the
Allahabad High Court. But a paragraph was subsequently inserted in the
complaint to the effect that H.D. Kandpal had the authority to file the
complaint on behalf of the Lucknow Bench of the Allahabad High Court.
11. Be that as it may, the Magistrate took cognizance of the complaint
and issued summons to Dr. Rahul Verma and Indra Bhushan Singh.
12. At this stage, it is worth mentioning that pursuant to the orders
passed by this Court in the case filed by the U.P. Junior Doctors Action
Committee, the CBI submitted to this Court a “Self Contained Note” dated
27th August, 1991 under cover of a letter -dated 28th August, 1991 in which
it was stated, inter alia, that “A statutory complaint under provisions of
Section 195(1)(b) of Cr. P. C. is being obtained from competent authority
(sic) of Allahabad High Court for prosecuting Dr. Rahul Verma and I.B.
Singh Advocate.” In other words, Kandpal had no authority to file the
complaint on 26th August, 1991 as claimed by him since on 28th August, 1991
the necessary sanction was “being obtained”. It is on this basis that
learned counsel for the accused persons submitted that a paragraph to the
effect that Kandpal was authorized to file the complaint was inserted in
the complaint subsequently and illegally.
13. Subsequent to the Magistrate taking cognizance of the complaint,
Indra Bhushan Singh moved an application for being discharged from the
prosecution of the case. Apart from contesting the matter on its merits,
in the sense that no case was made out for proceeding with the complaint,
one of the grounds taken by him was to the effect that the complaint was
filed without due authorization. By an order dated 2nd April, 1999 the
Magistrate rejected the application on merits, but did not advert to the
issue regarding authorization (in favour of Kandpal) to file the complaint.

This led Indra Bhushan Singh to file Criminal Case No.1875 of 1999 in the
Allahabad High Court and that was allowed by the order under appeal dated
4th February, 2000.
Decision of the High Court
14. In the High Court, three submissions were advanced on behalf of
Indra Bhushan Singh. It was contended, firstly, that before filing a
complaint, the High Court ought to have conducted an inquiry as mandated by
Section 340 of the Code of Criminal Procedure. The High Court, in the order
under appeal, decided this issue in his favour and held that an inquiry
ought to have been conducted before the complaint was filed. We express no
opinion on this issue and leave it open for adjudication in an appropriate
case. Secondly, it was argued that the Allahabad High Court had not
authorized Kandpal to file the complaint. In this regard, it was held:
“A perusal of the original complaint itself shows that the
complaint was once type then again at internal page 7 a fresh
para was added at the bottom with fresh typewriter with fresh
ribbon that the complainant is authorized to file this complaint
on behalf of the Hon’ble High Court, Lucknow Bench, Lucknow. On
this typing initial has been made by Sri Kandpal. Apparently,
the complaint shows that Sri Kandpal has got some authority on
behalf of High Court. The petitioner alleged that there was
absolutely no such authority. On 9.6.1999also, the petitioner
had argued that there was no order of the High court to file the
complaint against Indra Bhushan Singh and the –
present argument was also advanced that there is no such order
in writing on record to show any such authority. In the Lower
Court also this point was raised that there is no order of the
High Court authorizing Sri Kandpal for filing such a complaint
against Indra Bhushan Singh. The prosecution was granted several
dates but record was not produced. Such a plea was also taken in
the application for discharge dated 9.12.1995 in para 15. The
entire record of the High Court was summoned and both the
counsels for the parties, namely, Sri Amarendra Nath Singh and
Sri D.R. Azad went through the entire records to search out
whether Sri Kandpal has been authorized to file complaint. Sri
Azad searched out the entire records of the case but could not
find any such direction of the Court passed by the High Court
authorizing Sri Kandpal to file the complaint. Thus, the
complaint filed by Sri Kandpal is without any authority and is
to be quashed merely on this ground.”
Thirdly, it was contended on the merits of the allegations made, that there
was no case for proceeding against Indra Bhushan Singh. The High Court
decided this issue also in favour of Indra Bhushan Singh. In our opinion,
it is not necessary to go into the merits of the case since it is quite
clear that the complaint deserves to be quashed on the sole ground that
Kandpal was not authorized to file it.
15. Following the order passed by the High Court, Dr. Rahul Verma also
moved an application for being discharged from the prosecution and by an
order dated 7th April, 2001 the Magistrate accepted the application and
closed the case against him. The order –
passed by the Magistrate is the subject matter of appeal in Criminal Appeal
No.877 of 2002 and it is based on the order dated 4th February, 2000 passed
by the High Court in the case of Indra Bhushan Singh.
Proceedings in this court and conclusion
16. Before us, learned Additional Solicitor General sought to contend
that it was not necessary to obtain the sanction of the Allahabad High
Court to prosecute Dr. Rahul Verma and Indra Bhushan Singh. He placed
reliance on Iqbal Singh Marwah v. Meenakshi Marwah.[2] In our opinion,
this question will arise only if the complaint filed by Kandpal against Dr.
Rahul Verma and Indra Bhushan Singh was an authorized complaint. If the
complaint was filed without any authority conferred on Kandpal, it is no
complaint at all, and that would make the requirement of a sanction
completely irrelevant.
17. Therefore, it is essential to first answer the primary question,
that is, whether or not the complaint filed by Kandpal against Dr. Rahul
Verma and Indra Bhushan Singh was at all authorized. Realizing this as the
primary issue, this Court passed an order on –
28th October, 2009 to the effect that the Allahabad High Court is required
to be impleaded as a party respondent “for an effective hearing of these
appeals, and to do complete justice between the parties.” Accordingly,
notice was issued to the Allahabad High Court.
18. In response to the notice issued by this Court, an affidavit dated
28th January, 2010 was filed on behalf of the Allahabad High Court. The
affidavit reads as follows:-
“I, Shamsher Chandra aged about 52 years son of Late Ram Sundar
Tripathi presently posted as Officer-On-Special Duty
(Litigation), High Court, Allahabad, the deponent herein, do
hereby solemnly affirm and state as under:

1. That, the deponent is at present posted as
Officer-On-Special Duty (Litigation), High
Court, Allahabad, and as such is fully
conversant with the facts and circumstances
of the instant case and is competent and duly
authorized to swear the instant affidavit.

2. That, it is stated that no authorization was
given by the High Court for filing of the
complaint dated 26.08.1991 before the Special
Judicial Magistrate, C.B.I., Lucknow, by the
Deputy Registrar (Administration) of the
Lucknow Bench of the High Court, Allahabad.
As such, no record in relation thereto is
available or existent.

3. That, a fact finding enquiry in the matter of
the alleged authorization to the then Deputy
Registrar (Administration) of the Lucknow
Bench of the High Court, Allahabad was
initiated by the Allahabad High Court and the
enquiry has now been concluded and it has
been reported that Sri H.D. Kandpal, the then

4. Deputy Registrar (Administration) of the
Lucknow Bench of the High Court, Allahabad;
who had retired from service on November
1992, was responsible for lodging the
complaint dated 26.08.1991 before the Special
Judicial Magistrate, C.B.I., Lucknow without
any sanction/approval of the High Court of
Judicature at Allahabad. A true copy of the
fact finding Enquiry Report dated 14.12.2009
and its supplementary report dated 22.12.2009
of the Enquiry Officer in the same enquiry
are being annexed herewith and is marked as
Annexure-1 (colly) to this affidavit.”

19. It is quite clear from the affidavit filed by the Allahabad High
Court that Kandpal had filed the complaint against Dr.Rahul Verma and Indra
Bhushan Singh without any authority conferred on him by the High Court.
This is now beyond question.
20. Since the complaint by Kandpal was filed without any authority, in
our opinion, the Magistrate could not have taken cognizance of it or
proceeded with the matter. He lacked the jurisdiction to do so since there
was no valid complaint before him.
21. In view of the factual position as stated on affidavit on behalf
of the Allahabad High Court, the other questions urged by the learned
Additional Solicitor General do not arise. They would certainly arise if
the complaint had been a valid complaint, which it was not.

22. Under these circumstances, in view of the categorical stand of the
Allahabad High Court that no sanction or authorization was given to Kandpal
to file a complaint against Dr. Rahul Verma or Indra Bhushan Singh, there
is no merit in these appeals and they are accordingly dismissed.
……………………………………J
(Ranjana Prakash Desai)
……………………………………J
(Madan B. Lokur)
New Delhi;
May 2, 2014
———————–
[1]

[2] (1990) 4 SCC 633

 

[3]

[4] (2005) 4 SCC 370

 

 

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