This order will dispose of Crl.R. Nos. 3/92, 4/92 and 5/92. These revisions have arisen from a common order passed by Shri V. S. Aggarwal, Addl. Sessions Judge, dated 16th August, 1991. Since the common point is involved, therefore, they are disposed of by one order.
2. Central Bureau of Investigation (hereinafter called the appellant) registered corruption cases against the present respondents under Sections 120-B, I.P.C. and 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 for allegedly accepting bribe. During the investigation the appellant could not collect sufficient evidence to establish criminal conspiracy and abuse of official position by the respondents. In view of lack of evidence the appellant submitted a report under section 173, Cr.P.C. before the Special Judge, Delhi for closure of the case.
3. The Special Judge, Delhi by the impugned order rejected the request of the appellant and directed that at the first instance the prosecution should approach the concerned sanctioning authority before coming to the Court and further held that the report under Section 173, Cr.P.C. was premature and therefore not acceptable.
4. It is against the impugned order dated August 16, 1991 that the present criminal revision has been preferred by the appellant inter alia on the ground that for filing a report under section 173, Cr.P.C. for closure of the case, no sanction of the sanctioning authority is required.
5. In order to appreciate the contention of the appellant, it is worthwhile to refer to some of the relevant provisions. The prevention of Corruption Act, 1947, has been amended by Act No. 49 of 1988. The Act was amended to make it more effective by widening the coverage and by strengthening the object. But so far as the scheme of the Act is concerned, there is in fact no change and that has almost remained intact. Section 6(1) of the Prevention of Corruption Act, 1947 (hereinafter called the Act) reads as under :-
Section 6(1) :-
"No Court shall take 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."
6. The Prevention of Corruption Act, 1988, Section 19(1) also provides previous sanction for prosecution in the case of a person employed in connection with the affairs of the Union, State Government or other authority and is analogous to Section 6(1) of the Prevention of Corruption Act, 1947 except clause 19(3) which provides that on the ground of irregularity of sanction, no finding of the Court can be reversed.
7. The policy underlying Section 6 or under section 19 and similar sections, is that there should not be unnecessary harassment of public servants. The object is to save the public servant from harassment of malicious prosecution. Valid sanction is a prerequisite to the taking of cognizance of the offences. In the case of R. S. Nayak v. A. R. Antulay, 1984 SCC (Cri) 172 : (1984 Cri LJ 613). Supreme Court held that a trial without a valid sanction where one is necessary under Section 6 is a trial without jurisdiction by the Court. The question for determination in this Criminal Revision is not the validity or invalidity of the sanction. The question raised by the appellant is whether the sanction from the sanctioning authority is a prerequisite for filing a final report under section 173, Cr.P.C. even when the prosecution on account of lack of evidence is not in a position to charge the respondents with the offence ? Can the Special Judge force the appellant to obtain sanction particularly when appellant is not asking the Court to take cognizance of the offence as there is no sufficient material to link the respondent with the offence. In the case of Abhinandan Jha v. Dinesh Mishra, reported in AIR 1968 SC 117 : (1968 Cri LJ 97), Supreme Court was dealing with the power of the Magistrate under section 173 of the Code of Criminal Procedure. In that case Dinesh Mishra lodged a First Information Report that he saw a thatched house, of one Uma Kant Misra, situated on the northern side of the house, burning, and the petitioners herein, running away from the scene. The police made an investigation and submitted what is called a 'final report', under section 173(1) of the Code, to the effect that the offence complained of, was false. The Sub-Divisional Magistrate received this report on July 13, 1965, but in the meanwhile, the respondent had filed what is termed 'a protest petition', challenging the correctness of the report submitted by the police. The Magistrate after perusing the police diary directed the police to submit a charge-sheet against the petitioners. It is this order of the Magistrate which was challenged. Patna High Court upheld the order of the Magistrate, but the Supreme Court after observing various provisions of the Code of Criminal Procedure held that the Magistrate had no power to call upon the police to submit a charge-sheet. It was observed 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 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 Magistracy and the police are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly impinge upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view. The investigation, under the Code, takes in several aspects and sages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so framed. The formation of the said opinion, by the police, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority.
8. Mr. Lal appearing for the appellant contended that this authority relied by the learned Special Judge in fact helps the appellant. It is the decision of the investigating agency to form an opinion as to whether any case is made out or not and if that investigating agency comes to the conclusion on account of lack of material or no sufficient material, linking the respondents with the offence alleged then the final decision is to be formed by the investigating agency. By directing to obtain sanction even for submitting final report the Special Judge has gone beyond the scope of Section 6(1) as well as the mandate given by Supreme Court in the case of Abhinandan Jha (1968 Cri LJ 97).
9. This point came up for consideration before this Court in the case of State (C.B.I.) v. Lachmandas decided in Crl.R. 1/1992 and vide order dated 18th May, 1992 this Court set aside the order of the learned Special Judge by observing that the previous sanction is necessary only for the purposes of prosecuting or for filing the charge-sheet but the same is not necessary for the purposes of filing a final report under section 173 of the Code of Civil Procedure. In view of the law laid down by this Court, in the case of State (C.B.I.) v. Lachmandas Gupta, the only irresistible conclusion which can be arrived at is that the impugned order passed by the Special Judge is liable to be set aside.
10. For the above reasons I accordingly set aside the impugned order dated 16th August, 1991 passed by Shri V. S. Aggarwal, Special Judge, Delhi. The case is remanded to the Special Judge for reconsidering the final report filed by the appellant under section 173, Cr.P.C.