The High Court of Calcutta, while allowing a petition filed by the petitioner to quash the order passed by the learned Special Judge vide which it took cognizance of the offense on the ground that there is sufficient material to proceed against the accused persons, held that unless there is a specific order under Section 156(3) of the CrPC passed by the Magistrate/Special Judge, directing the police authority to treat the complaint as an FIR and register a specific case, any complaint sent for inquiry under Section 202 of the CrPC cannot be registered as FIR.
Brief Facts:
A complaint was lodged before the learned Special Judge, alleging, inter-alia, that the petitioner committed misappropriation and cheating by forging documents. It is alleged that the accused persons committed an offense under Section 409/420/467/468/491/120B of the IPC and Sections 7/10/13(2) read with Section 13(i)(d) of the Prevention of Corruption Act. On receiving such complaints, the learned Special Judge sent the said complaint for inquiry for investigation. The learned Special Judge took cognizance of the offense on the ground that there is sufficient material to proceed against the accused persons. The petitioner being a public servant has filed the instant writ petition praying for quashing the order dated 17th January 2017 by the learned Special Judge.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the impugned order dated 17th January 2017 is illegal, inoperative, and passed without jurisdiction. He argued that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. He also contended that the requirement of application of mind by the Magistrate before exercising jurisdiction under Section 156(3) of the CrPC is of paramount importance.
Observations of the court:
The court noted that an order under Section 156 (3) of the CrPC must disclose the application of mind by the Magistrate. The Magistrate is required to apply his mind and the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order.
The Court observed that unless and until there is a specific order under Section 156(3) of the CrPC passed by the Magistrate/Special Judge, directing the police authority to treat the complaint as an FIR and register a specific case, any complaint sent for inquiry under Section 202 of the CrPC cannot be registered as FIR. In the instant case, on receipt of the complaint, the Vigilance Investigation Bureau did not proceed with the inquiry. On the other hand, the Vigilance Investigation Bureau registered Vigilance Case on the basis of the complaint filed by the complainant, i.e., Kailash Yadav. Thus, the Vigilance Inquiry Bureau committed jurisdictional errors. At the same time, a learned Sessions Judge could not take cognizance of the offense on the basis of the charge sheet filed by the Vigilance Investigation Bureau.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that since the case was not instituted on the basis of an FIR, under Section 154 of the CrPC or under Section 156(3) of the CrPC, the charge sheet against the petitioner is bad in law.
Case Title: Manoj Razak v. The Inspector General Of Police & Anr.
Coram: Hon’ble Mr. Justice Bibek Chaudhuri
Case No.: Criminal Writ Jurisdiction Case No.1393 of 2018
Advocate for the Petitioner: Mr. Bamdeo Pandey
Advocate for the Respondent: Mr. Ramakant Sharma
Read Judgment @LatestLaws.com
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