JUDGMENT
Jaspal Singh, J.
(1) Shri Buta Singh was a member of the Lok Sabha from December 31, 1984 to November 27, 1989 and the Minister of Home Affairs in the Government of India from May 12, 1986 to December 2, 1989. On March 4, 1995 by the orders of a Superintendent of Police Cbi Spe Acu (vi) New Delhi a case was registered against him and others under sections 7 and 12 of the Prevention of Corruption Act, 1988 and under section 56 read with section 8 of FerroAhalmed
1973. Later charge sheet No.l6 dated February 22, 1996 was filed by the Cbi before the Court of the Special Judge Delhi. It was against Shri Buta Singh. On March 8, 1996, the learned Special Judge took cognizance of “the offences complained against” and issued summons. The relevant portion of the order runs as under: “I have gone through the charge sheets, documents and other materials placed on record. After going through the record, I find that there are sufficient grounds for proceeding against all the accused and as such I take cognizance of the offence complained of. In view of the prayer made by the Cbi, it is hereby ordered that summons be issued to all the accused persons mentioned in the charge sheet for 14.3.1996. Ahalmed to issue the process immediately for the date fixed.”
(2) Though the order of the learned Special Judge does not specify, admittedly the “offences complained of are section 120B of the Indian Penal Code and sections 7 and 13(i)(d) of the Prevention of Corruption Act, 1988 (hereinafter called the Act).
(3) Shri Buta Singh is aggrieved by the above- noted order of the learned Special Judge. He feels that no case is made out against him and that for that reason not only the order in question requires to be set aside but the Charge Sheet also needs to be quashed. He also seeks the quashing of the proceedings on the ground that no sanction has been obtained under section 197 of the Code of Criminal Procedure. Hence this petition.
(4) What is it that is alleged against the petitioner? This is how, in brief, the Charge Sheet proceeds to unfold the facts: During the course of investigation of Rc 5(s)/91 Siu (v)/CBI/New Delhi two diaries and two files were recovered from the residence of accused J.K.Jain. They contained entries about various payments to number of persons including certain political leaders some of whom, at the relevant time, were working as public servants. It was also revealed during investigation of that case that S.K.Jain, B.R.Jain, N.K.Jain and J.K.Jain had acted as middlemen in the award of certain big projects, that they were involved in Hawala transactions in a big way and that they had entered into a conspiracy among themselves with the object of receiving unaccounted money and to disburse the same among themselves and also to their companies, friends etc. including some public servants and political leaders of India and that this way a total sum of Rs.60,49,44,30 was paid to 115 persons/parties/ organisations including some public servants and political leaders of India. One of such persons happened to be the petitioner. Allegedly the petitioner was paid a sum of seven lakh fifty thousand rupees. These payments allegedly made to the petitioner find mention in the Charge Sheet in the following manner: “IT has transpired during the course of investigation that the above mentioned Jains had entered into separate criminal conspiracies with each individual separetly, whose names are recorded in coded abbreviations corresponding to the initials of their names, for making payments to them from time to time. One of the said recipients was Sh.Buta Singh, who worked as a Public Servant in the capacity of Member of Parliament (Lok Sabha) from 31.12.84 to 27.11.89 and the Minister of Home Affairs in the Government of India from 12.5,86 to 2.12.89 during the relevant period. The above mentioned diaries and files seized from the residence of accused J.KJain indicate the payment of Rs.7.50 lakhs to Sh.Buta Singh as per details given below: S.No. Months & Year Amount (Rupees in lakhs) 1. May 89 ‘ 2.50 2. Sept.89 5.00 Total 7.50
(5) Entries about the above mentioned payments have been recorded in one of the diaries and one File, which were seized from the residence of accused J.KJain on 3.5.91 as per details given below: Document No. Page No. Period Description of Amount Entry . Diary 71/91 Mr 5 May 89 Buta Singh 2.50 through Sandhu (Corroborates Sl. No.1 above) 6 Sept. 89 Buta Singh 5.00 Sandhu (Corroborates Sl.No. 2 above) File Mr 72/91 8 Poe from April Buta Singh 7.50 88 to March 90 (Corroborates Sl No.l&2 above) A/c fromApril Buta Singh 7.50 89 to Dec. 89 (Corroborates Sl.No.1&2 above)
(6) The above mentioned entries of payments recorded in one diary and one file corroborate among themselves in all material particulars even though these have been recorded in different period wise charts spreading from April 88 to March 90. The authenticity of these documents and payments recorded therein indicate the actual transactions which took place from time to time and which have been accounted for in different forms in the said diary and file. The name and initial “BS”, “Buta” and “Buta Singh” against whom the payments are recorded in the diary and file as mentioned above relate to one and the same person as per the following facts:- The payments of Rs.2.50 lakhs in May 89 and Rs.5 lakhs in Sept. 89, as mentioned above have been recorded against his full name “Buta Singh” which have been accounted for against his initials “BS” , while accounting for the said payment in the balance sheet for the period April 89 to Dec. 89 at page 30 of File Mr 72/91 and against his abbreviated name “Buta” under heading political expenses from April 88 to March 90 at page 8 of the file Mr 72/91. The entire amount of Rs.7.50 lakhs has been recorded as political expenses against the name of “Buta Singh” as per details given above indicating thereby that the said payment was made to Shri Buta Singh who is known political leader of the country. Further the name of Buta Singh is mentioned in appointment slip Mr 351/95 as “Buta/Sawhi” which has been seized from the residence of accused S.K.Jain on 5.3.95″
(7) Before I proceed to delineate and dissect the arguments advanced in favour of as well as against the petitioner I may mention that admittedly beyond the taking of cognizance and service of summons, there has been no progress in the proceedings and that, as such, the prosecution is still at the threshold.
(8) Time now to notice the arguments advanced.
(9) MR.N.N.AGGARWAL, the learned counsel for the petitioner took me through sections 7 and 13(i)(d) of the Act and submitted that from the charge sheet submitted by the Cbi the ingredients of none of the offences referred to above could be taken to have been satisfied.
(10) Since I feel that the arguments advanced can be best appreciated if we have the relevant provisions of the Act before us, let us first have a look at section 7 of the Act. It runs as under:
“7.Public servant taking gratification other than legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.”
It was contended that though the petitioner could be taken as a public servant, there was neither any allegation nor any material on the record to show that (a) he had accepted or obtained or had agreed to accept or attempted to obtain from any person, either for himself, or for any other person, any gratification, and that (b) even if it be assumed that the requirement of (a) above was proved, there was nothing on the record to show that such gratification had been received and obtained “as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person”
(11) Coming to section 13(i)(d) of the Act, let us have a look at it also. It provides: “13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct.- (a)…. (b)….. (c)…… (d) If he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.”
(12) As regards section 13(l)(d) it was argued that the prosecution had failed to show that the petitioner had “obtained” any valuable thing or pecuniary advantage either by corrupt or illegal means or by abusing his position as a public servant or that he had “obtained” for any person any valuable thing or pecuniary advantage without any public interest.
(13) It may also be noticed that during arguments the learned counsel for the petitioner had drawn my attention to State of U.P. v. Kanhaiya Lal 1976 Crl 1230 and State of Maharashtra v. Jaywant 1970 Cri Lj 1460 in support of his arguments revolving around section 7 of the Act.
(14) In Stale of U.P. v. Kanhaya Lal (supra), the accused who was a public servant had accepted gratification for getting some pattas executed. However, the prosecution failed to prove in the trial that getting patta executed was the official duty of the accused. It was held that in the absence of that evidence the charge under section 161 of the Penal Code (Section 7 of the Act) could not be held as having been made out.
(15) Coming to State of Maharashtra v. Jaywant (supra) the accused was a police constable who while on public duly was abused and insulted by one Appa. On being told about it, the superior officer of the accused asked for the production of Appa. Thereafter, the accused was approached on behalf of Appa and entreated to patch up the matter. The accused agreed if he was paid Rs.50.00 . Ultimately he was paid that amount in two instalments. The prosecution claimed that receipt of the amount constituted commission of offence under section 161 of the Indian Penal Code. The Court, however, while maintaining the order of acquittal observed: “IT must be observed that when public officials are exposed to insults, injuries, obstructions, or are subjected to other offences while discharging their duties, an obligation in the interest of public may arise to take legal steps so as to vindicate public justice. If the case be clear on this aspect, it would not lie in the sweet discretion of public officials to privately compound such causes that must be brought to book by accepting gratifications. In those cases, public officials will be under public duty to take steps against the party or persons who are in the position of the accused or the defendants. If under the facts and circumstances of a given case such an obligation coupled with duty arises and only with a view to forbear from that duty gratification is offered and taken, we have no manner of doubt that such an acceptance of gratification will be culpable within the meaning of Section 161 of the Indian Penal Code as well as Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. We may hasten to add that in the case of public officials doing public duty, no doubt, events may occur and cases may arise when their public office and public duty are not involved and the offence caused to them could be classed as personal or private. Accepting gratification for compounding such personal injuries would clearly be out of the penal mischief contemplated by the corruption law. Similarly, the compounding may arise in the matters where the occurrence involves injury to the person acting, in official capacity, leaving an option to the complainant public official either to proceed against the person offending or not to proceed but to compound the same. Excepting these two categories, and particularly when offence against public officials while discharging their duties occur and there arises an obligation as a part of duty of such public official to take steps against the offending party in the interest of the public office, we do not think that compounding by taking gratification in any form can be permissible or can be out of the purview of the provisions of Section 161 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act. An offence under Section 161 of the Indian Penal Code has nexus with the alleged official act and its doing or forbearing to do the same even when gratification is offered and accepted in such belief with regard to such action. (See Emperor v. Bhimrao, (1925) 27 Born Lr 120; State v. Mahadeo Daunappa, (1952) 54 Born. Lr 153 and The State v. Shamrao Novji, (1956) 58 Born Lr 355). Private composition of official grievances against receipt of gratification is within the mischief of the section. It is only when there is overlapping of private and official doing or forbearing to do or official is possessed of private option possible an exceptional defense is made out. Otherwise accepting money for forbearing to take legal action which the official is obliged or duty bound to take as a part of his duty is, in our view clearly culpable. When duty arises to take action and to proceed with it, its imminence is clearly an official act. With a view to forbear from it, if gratification is accepted, may be under the colour of composition or cover of compromise, it would still be corrupt. The question that the Court should ask in such matter is whether but for the gratification the official would have or would not have proceeded to take action as is enjoined upon him because of his holding the public office? It is the answer to such query that would eventually indicate the involvement of the public official accepting the gratification into the culpability. No doubt the provisions of corrupt misconduct as defined by Section 5(2) of the Prevention of Corruption Act as well as the acceptance of gratification commonly called accepting the bribes, as contemplated by Section 161 of the Indian Penal Code, being the matter of penal law, considerations of mens rea of the accused would necessarily be relevant and in that the bona fide settlement by the accused under some misguided and mistaken beliefs may go to furnish a valid defense to an accused public official charged with corruption, but like any other matter that is all required to be determined under the background of the facts and circumstances available in a particular case and that surround the commission of the offence. Only because such a defense is available, that itself does not affect the ingredients of the offence. Compromise or composition by itself involves taking gratifications and if the nexus is with the official act, that is its doing or forbearing it to do, the offence is clearly spelled out.”
(16) As regards the arguments centering around section 13(l)(d) of the Act my attention was drawn to Banshi Lal Yadav v. State of Bihar , to show that the word “obtain” used in the provision implies some overt act on the part of the accused to have “valuable thing or pecuniary advantage”. The argument was that the prosecution had not alleged that the petitioner was guilty of any such overt act.
(17) My attention was also drawn to M. Narayanan v. State of Kerala and S.K.Kale v. State of Maharashtra AlR 1977 Sc 822 to show that the expression “abusing his position as a public servant” would imply misusing his position as a public servant and that to prove it dishonest intention must be present. The contention was that no such guilty intention stood proved.
(18) It was argued that in view of the submissions referred to above, the Special Judge had committed “patent illegality” in taking cognizance and as such “whole of the proceedings” stood vitiated.
(19) What do we mean by cognizance? When does a Magistrate take cognizance? There is no need for yet another lengthy dissertation. The books on the subject are already brimming to the full. What, however, needs to be said is that cognizance is different from initiation of proceedings. It is also different from jurisdiction to deal with the case. It is not even to be confused with power to inquire into or try. The taking of cognizance involves no formal action. In fact it involves no action of any kind. It occurs as soon as a Magistrate takes judicial notice of the alleged offence and applies his judicial mind to it for seeing whether there is any basis for initiating judicial proceeding. It is thus a mental act which though, must necessarily be a judicial act as well. It is only thereafter that the Magistrate -takes into consideration the material before him to decide the question as to whether to issue process or not.
(20) Can it be said that the learned Special Judge was unjustified in taking cognizance or in issuing process?
(21) The Jains are painted by the prosecution as predators out to grab monetary gains by means more foul than fair. We are told that to smoothen their chosen path and with a view to consolidate their present and to secure their future, they made a large number of senior bureaucrats and political leaders succumb to the lure of money. This, the prosecution alleges, really made the mare go. The power and steel sectors of the Government of India were their first target. During the period 1988 to 1991 the Jains received Rs.59,12,11,685.00 by generating some amount within the country but major portion from foreign contracts through Hawala channels as kickbacks from the foreign bidders of certain projects of Nhpc and NTPC. The chargesheet provides the details of those transactions and monies received. However, all the monies so received by the Jains were not kept by them alone. We are told that they conspired to disburse quite a substantial amount to others also and those others included public servants some of whom happened to be political leaders as well and this way the net of criminal conspiracy became wider with some such bureaucrats and political leaders becoming part of either its larger or smaller groups. All of them became recipients of the booty some getting very and some not very hefty amounts. The prosecution says that the petitioner was a part of that conspiracy and in the process became richer by 7.50 lakhs received/obtained in two instalments. This happened during the period 31.12.1984 to 27.11.1989 and from 12.5.86 to 2.12.89. The chargesheet while unfolding this sordid tale of corruption and calumny unveils the identity of many others too who allegedly sold their conscience by falling prey to the call of the proverbial coins of silver
(22) Besides the nauseating details to which a reference in the passing has been made by me above, the charge sheet provides a fair idea of how the prosecution intends to go about to establish its charges. It alleges that accused J.K.Jain regularly maintained in his own handwriting accounts of receipts and disbursements in two small notebooks, two diaries and two files which were seen by accused S.K.Jain, B.R.Jain, and N.K.Jain from time to time and authenticated by accused S.K.Jain. We are told that though all the said accounts were maintained in different forms, they fully corroborate each other and that the correctness of some of the entries in the names of P.Ghosal, Pawan Jain, M.P.Nair, Jacob Mathai, P.Ramball Danid and Dr.Ejaj was vouchsafed by the said persons themselves when examined by the C.B.I., the Enforcement Directorate and the Income Tax Authorities. The Charge sheet provides other details also to show that the entries in the diaries were correctly made by J.K.Jain. I do not think I need burden this order with those details. What needs to be mentioned is that the name of the petitioner finds mention in one of those diaries and a file alongwith others as a recipient of the largesse and that the amounts paid to him appear under the head “political expenses”. Lest I forget, I may also hasten to mention that the payments were allegedly made to the petitioner by the said Jains through one S.S.Sandhu and were recorded in one of the above-noted diaries and one file. What may further be noticed is that as per the prosecution the said diary and the file were seized from the residence of accused J.K.Jain and that the entries of payment in the said diary and the file “corroborate among themselves in all material particular.”
(23) Why were those payments made? Why were they shown as “political expenses”? And, what do. those payments signify? The answers are provided by the ChargeSheet in the following words:
“IT has been disclosed that accused S.K.Jain, N.K.Jain, B.R.Jain and their employee J.K.Jain were in the habit of making payments to influential public servants and political leaders of high status for official favours or in expectation of the same from them. Shri Buta Singh was Minister of Parliamentary Affairs, Sports and Works and housing from 29.1.83 to 31.12.84. He was Member of Parliament (Lok Sabha) from 31.12.84 to 27.11.89. During this period, he worked as a Minister of Agriculture and Rural Development from 31.12.84 to 12.5.86. Minister of Home Affairs from 12.5.86 to 2.12.89. He has been the Member of Parliament (Lok Sabha) from 20.6.91 and has been working as Minister of Civil Supplies, Consumer Affairs and Public Distribution from 10.2.95 to 20.2.96. He was thus occupying the positions of Power and the Jains had paid the amount of Rs.7.50 lakhs to him during May 89 to Sept. 89 with the same motive which amounts to the payment of illegal gratification other than legal remuneration by Jains to him either for favours done by him or expected of him in the light of the fact that he was occupying position of Power in the Government of India and was likely to be so.”
“FROM the above facts and circumstances, it is established that Shri Buta Singh, Member of Parliament (Lok Sabha) while functioning as a Member of Parliament and the Minister of Home Affairs in the Government of India during 12.5.86 to 2.12.89 and thus being a public servant obtained a sum of Rs.7.5 lakhs as illegal gratification other than legal remuneration from accused S.K.Jain and his two brothers B.R.Jain, N.K.Jain and their employee J.K.Jain through accused S.S.Sandhu without any public interest or by abusing his official position as public servant which constitute offences of criminal conspiracy and misconduct punishable U/s 120-B Ipc, Section 7, 12 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.”
(24) It is time now to recollect and revert back to, the question posed in one of the preceding paragraphs. Can it be said that the learned Special Judge was run justified in taking cognizance and issuing the process? I have already signified above as to what we mean by “cognizance” and when it is taken. Keeping in view the charge sheet referred to above and the material on the record, I discern no reason to hold that the taking of the cognizance was not justified. It is well settled that at the stage of issuing process the Magistrate, in a case like the present one, is mainly concerned with the charge-sheet and the documents forming part of it and he will go through the said material to see whether or not there is “sufficient ground for proceeding” against the accused. It is no stage to weigh the evidence meticulously. In fact if the Magistrate so does he oversteps the limits of his discretion. Yet another thing which needs to be remembered is that the standard for ascertaining whether the material before him discloses sufficient grounds for proceeding against …ie accused is lower than one at the stage of framing charges in a warrant case. To put it differently, the test will not be whether there will be a conviction but whether a prima facie case is made out.
(25) The learned counsel for the petitioner wanted me to go deeply into the facts, dissect them, and then examine them meticulously. I have already said this is no stage to weigh the evidence in the manner suggested. However, let me go to the extent permissible.
(26) It was contended that the charge under section 120B was not “sustainable” as there was no evidence to show meeting of the minds and further as there was no evidence on where, when and with whom the conspiracy was hatched and how it actually got connected with the offences committed.
(27) I do not think the argument proceeds on a proper appreciation of the charge sheet. As already noticed by me above, it first speaks of the formation of a conspiracy amongst only the Jains and then of its getting enlarged with the induction of others at different levels. Those who later got inducted were either members of the larger conspiracy or of its smaller segments but then it cannot be said that those smaller segments having remained aloof from the other segments, would not be treated as members of the larger conspiracy. The prosecution alleges that the petitioner belonged to one such smaller segments and it seeks to prove all this through different transactions like receipt of kickbacks, hawala transactions, disbursement of amounts to various members of the conspiracy, and through the diaries and the files seized from the Jains. The prosecution also seeks to prove its case by showing that the petitioner and the other political leaders involved were occupying positions of power from where they could make or unmake any person with a smile or a frown and that when they received large amounts the motive of the Jains was obvious not only to the Jains themselves but to the petitioner and others as well. After all, argued the learned counsel for the State, why should someone pay large sums of money to the political leaders and that too under the head “political expenses”? He said, the reason obviously was favours shown, either in the past or expected in future. And this is what the charge sheet alleges as the game plan of the conspiracy.
(28) It was also contended that the entries made in the diaries and in the files would not be admissible and thus the charge of conspiracy would crumble to the ground.
(29) It is not within my province to say at this stage as to how and in what manner the prosecution is going to prove conspiracy. I would also not like to venture into the question, not at this stage at least, as to whether the diaries, and the files and the entries contained therein would be admissible or not and if admissible, how the same would be formally proved in evidence though, during arguments, my attention had been drawn by the learned counsel for the C.B.I, to sections 17 and 21 of the Evidence Act and to the alleged admissions made by some of the persons with regard to correctness of some of the entries to which reference already stands made in the earlier part of this order. These entries were allegedly made by J.K.Jain and the charge sheet makes reference to the admissions made with regard to them. My attention was drawn to the opinion evidence as well. I am making reference to all this to show that it is not that the charge-sheet is silent on this aspect of the matter. Besides all that material, I was told that the prosecution could also bank upon sections 7,9, 10 & 11(2) of the Evidence Act. I am making a reference to this too since it formed part of the armoury deployed by the learned State counsel while making a reply, though it is another matter that I am reserving comment for reasons already delineated. What, however, needs to be stated is that the charge-sheet speaks of a conspiracy, a larger transaction, if I may say so, and in support refers to different transactions, various payments and numerous documents. It brings forth some relevant facts juxtaposed with other facts and from them infers that the petitioner was a part of the larger transaction and had received/obtained the payments from the Jains in consequence thereof. In short, the charge sheet reveals, prima facie, that the petitioner does not stand in isolation and that there was a conspiracy of which he was an integral part.
(30) Admittedly, the petitioner was a public servant at the relevant time. The charge-sheet shows that he received/obtained Rs.7.50 lakhs from the Jains. It is claimed that the amount allegedly so received was not legal remuneration but was paid under the head “political expenses”. Let us remember the allegations regarding the conspiracy and the payments allegedly made as illegal gratification to some of the conspirators. Let us also recollect the allegations in the charge sheet that:
“IT has been disclosed that accused S.K.Jain, N.K.Jain, B.R.Jain and their employee J.K.Jain were in the habit of making payments to influential public servants and political leaders of high status for official favours or in expectation of the same from them. Shri Buta Singh was Minister of Parliamentary Affairs, Sports and Works and housing from 29.1.83 to 31.12.84. He was Member of Parliament (Lok Sabha) from 31.12.84 to 27.11.89. During this period, he worked as a Minister of Agriculture and Rural Development from 31.12.84 to 12.5.86. Minister of Home Affairs from 12.5.86 to 2.12.89. He has been the Member of Parliament (Lok Sabha) from 20.6.91 and has been working as Minister of Civil Supplies, Consumer Affairs and Public Distribution from 10.2.95 to 20.2.96. He was thus occupying the positions of Power and the Jains had paid the amount of Rs.7.50 lakhs to him during May 89 to Sept. 89 with the same motive which amounts to the payment of illegal gratification other than legal remuneration by Jains to him either for favours done by him or expected of him in the light of the fact that he was occupying position of Power in the Government of India and was likely to be so.”
(31) Is it not sufficient to make out a case for issue of process?
(32) Coming to the contention of Mr.Aggarwal that no where in the charge sheet has it been alleged that the petitioner had accepted or obtained the amount or that the same had been accepted or obtained “as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person.” It is true that the Charge Sheet has not reproduced these words of the provision. But then where is the necessity to reproduce them? Once it is claimed that an offence has been committed under section 7, it implies that it has within its embryo the ingredients of that offence. In such a circumstance it would not be required to repeat like a parrot those ingredients. They would be inherent in the assertion. The Charge Sheet, in the present case, spells out the necessary facts and it clearly mentions that the petitioner has committed an offence under section 7 of the Act. This, to my mind, is sufficient. This being the position, the judgments referred to by Mr.Aggarwal and to which mention has already been made by me in some detail, lose their significance. In Kanhaya Lal’s case (supra) no evidence had been led in the trial to prove the essential ingredients of the offence. In the case in hand the stage of evidence is yet to come. In Jaywant’s case (supra) taking of gratification was proved to have no nexus with the official act. In the present case, the paragraph of the charge sheet reproduced above, alleges such nexus.
(33) Coming to the contentions raised by Mr.Aggarwal and to which reference has already been made by me above the Charge Sheet does speak of the petitioner having “obtained” the amount. It says that the amount was received/obtained through S.S.Sandhu. Whether he really “obtained” or merely “received” or neither “obtained’ nor “received” is to be thrashed out at the trial. In the presence of the clear assertion that the petitioner had “obtained” the amounts, I do not think it was imperative for the prosecution to allege how and in what manner he “obtained” the amounts. These questions, to my mind, would fall within the sphere of evidence. The Charge Sheet also speaks of conspiracy and spells out dishonest intention in sufficient terms. It also speaks of his ‘abusing’ his official position. In any case section 13(1)(d)(iii) does not use the expression “abuse”. It runs as under: “13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct.- (a)…. (b)….. (c)…… (d) If he,- (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.”
(34) The Charge Sheet shows it is relying upon this clause and this is what was also stated by the learned counsel for the C.B.I.
(35) As already noticed above, taking cognizance ordinarily means that the Magistrate has come to the conclusion that there is a case to be inquired into. The facts, set out in the Charge Sheet do prima facie constitute offences under sections 120B, Penal Code read with sections 7 and 13(l)(d) of the Prevention of Corruption Act. It also cannot be said that the record does not disclose sufficient ground for proceeding. Sufficient ground does not mean sufficient ground for conviction but such evidence as would be sufficient to put the accused upon trial. The learned Special Judge after having gone through the Charge Sheet and the material on the record has taken cognizance and passed orders for issuance of process. Though Mr.Aggarwal found the said order to be cryptic bordering on non- application of mind and smacking of mechanical approach, I find no ground to interfere.
(36) Before drawing curtain on this aspect of the matter I may mention that in view of the Charge Sheet and the material on the record, any interference at this stage would be clearly against the dictum of the Supreme Court. In State of Himachal Pradesh v. Prithi Chand & Anr. (Crl A. 1752 of 1995 decided on November 30, 1995) the Supreme Court said: .1st
“IT is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that Fir is only an initiation to move the machinery and to investigate into cognisable offence. After the investigation is conducted and the chargesheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the chargesheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognisable offence is made out no further act could be done except to quash the charge sheet. But only in exceptional cases, i.e. in rarest of rare cases of malafide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint of Fir itself does not disclose at all any cognisable offence – the court may embark upon the consideration thereof and exercise the power.
When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise the extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482 the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court. When investigating officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power. The accused involved in an economic offence destabilises the economy and causes grave incursion on the economic planning of the State. When the legislature entrusts the power to the police officer to prevent organized commission of the offence or offences involving moral turpitude or crimes of grave nature and are entrusted with power to investigate into the crime in intractable terrains and secretive manner in concert, greater circumspection and care and caution should be born in mind by the High Court when it exercises its inherent power. Otherwise, the social order and security would be put in jeopardy and to grave risk. The accused will have field day in destablising the economy of the State regulated under the relevant provisions.”
(37) In State of Bihar v. Rajindra Agrawala the apex court observed: “IT has been held by this Court in several cases that the inherent power of the court under section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the First Information Report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to shift the evidence or appreciate the evidence and come to the’ conclusion that no prima facie case is made out.”
(38) This being the law and the case of the prosecution being as discussed above, it cannot be termed to be one of those rarest of rare cases where prosecution may be scuttled in its inception.
(39) This, however, is still not the end of the matter. It is also the case of the petitioner that sanction under section 197 of the Code of Criminal Procedure was essential and as it had. not been obtained the proceedings are bad.
(40) Before embarking upon this question I may repeat that effective proceedings are yet to commence. It is only an initial stage and details are yet to be unfolded. The objection with regard to need for sanction can be taken before the learned Special Judge at appropriate stage. However, since the question has been raised and argued at some length, let me proceed to deal with it keeping in view the charge sheet and the material on the record.
(41) Undoubtedly the petitioner was a public servant at the time when he allegedly obtained/received rupees seven lakhs’ and fifty thousand. I have already given above the necessary details as to the transactions, I need not repeat them ad nauseam. The need is only to keep them in mind. What is also required to be kept in mind is Sub-section (1) of Section 197 of the Code of Criminal Procedure which runs as under: “197.Prosecuton of fudges 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 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.”
(42) Admittedly no sanction is required as far as section 7 and 13(l)(d) of the Act are concerned. This leaves us with section 120 B of the Indian Penal Code which in turn leads Us to section 197 of the Code of Criminal Procedure. A bare reading of sub section (1) of section 197 would go to show that it is not every offence committed by a public servant that requires sanction; nor even every act done by him while he is actually engaged in the performance of his official duties. To attract sub-section (1) of section 197 of the Code, the act complained of must be directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office (See: Shreekantiah Ramkantiah Ramayya Munipalli v. State of Bombay and Amrik Singh v. State of Pepsu ). The Supreme Court, however, told us in Harihar Prasad v. State of Bihar that “it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under section 197 of the Code of Criminal Procedure is, therefore, no bar”. These observations, however, have been qualified in R. Balakrishna Pillai v. State of Kerala & Another wherein, after referring to the above-quoted observations in Harihar Prasad’s case, it was said: “THE question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of section 197(1) of the Code would have no application. Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case.”
(43) Distinguishing Harihar Prasad’s case, it was further said that in the -said case: “THE observations were made by the Court in the special facts of that case which clearly indicated that the criminal conspiracy entered into by the three delinquent public servants had no relation whatsoever with their official duties and, therefore, the bar of Section 197(1) was not attracted.”
(44) What is the criminal conspiracy alleged in this case? The charge sheet first speaks of a criminal conspiracy entered into amongst the Jains only. It was entered into “during the years 1988 to 1991”. The object was to “receive unaccounted money and to disburse the same among themselves and also to their companies, friends, close relatives and various other persons including the public servants and political leaders of India”. It is claimed that “in pursuance of the said criminal conspiracy” the said Jains had disbursed “various amounts to various persons/organizations including to the public servants as and when they received the amounts from the foreign countries or from their own illegal sources”. The charge sheet then proceeds to speak of the Jains having entered into “separate conspiracies with each individual separately… for making payments to them from time to time.” It is alleged that the petitioner was one of them and that in terms of that conspiracy had secured/obtained rupees seven lakhs fifty thousand. This payment was allegedly made to him as he was “occupying the positions of Power” and as the Jains were “in the habit of making payments to influential public servants and political leaders of high status for official favours or in expectation of the same from them.” This being the position the only act attributed to the petitioner with regard to the offence of criminal conspiracy is his having received/obtained Rs.7.50 lakhs. This act of taking bribe in the circumstances noticed above cannot be said to fall within the scope of the aforequoted provisions of the Code of Criminal Procedure. The case before me thus finds itself in the company of Harihar Prasad (supra) and far removed from R.Balakrishna Pillai (supra) wherein the’ act alleged was directly and reasonably connected with the official duty of the accused. In short thus, it cannot be held that sanction under section 197(45)(1) of the Code of Criminal Procedure was a sine qua non.
The petition is dismissed.