criminal appellate jurisdiction criminal appeal number. 527-28 of 1990
from the judgment and order dated 5.4.1990 of the
patna high companyrt in crl. w.j.c. number. 90 and 228 of 1989.
with
criminal appeal number. 523-248 525-26/90
kapil sibal additional solicitor general p.p. rao

k. shahi mrs. vimla sinha yunus malli vikash singh and

r. singh for the appellants. dr. shankar ghose r.k. jain rakesh k. khanna surya
kant rajan mahapatra mrs. sangeeta tripathi mandal ms.
abha sharma dr. s. jha and r.p. gupta for the respondents. the judgment of the companyrt was delivered by
kuldip singh j. the bihar state companyperative marketing union
limited  biscomaun    hereinafter called bisco  is an
apex body operating in the state of bihar. it is a
federation of companyperative societies and its primary function
is to supply fertiliser to farmers through its depots and
godowns numbering about 550 spreadover the state of bihar. shri p.p. sharma ias took over as managing director
of bisco on may 26 1986 and companytinued to hold the said
office till june 14 1987. from december 31 1986 to june
14 1987 he was also secretary department of companyperative
government of bihar and registrar companyperative societies
state of bihar. g.d. mishra was working as advisor to bisco
during 1986-88. he resigned from the said post on august 3
1988. it may be mentioned that one tapeshwar singh was the
chairman of bisco during the above said period. m s. rajasthan multi fertiliser pvt. limited udaipur
rajasthan  hereinafter called the firm  was holding a
certificate of registration issued on august 8 1985 by the
director of agriculture bihar. it is alleged that a letter
dated august 191986 was addressed by the firm to the
managing director of bisco offering to supply fertiliser of
specified grade and quality at rs.2550 per mt plus local
taxes. it may be mentioned that the state of bihar had
issued a numberification dated july 14 1984 fixing the prices
for different grades of fertilisers. the price of the grade
offered by the firm was fixed at rs. 2559 per mt under the
said numberification. the firm sent anumberher letter on october
5 1986 repeating its offer companytained in its earlier letter. the offer of the firm was accepted and g.d. mishra on
numberember 22 1986 placed an order with the firm for supply
of 2500 mt of fertiliser  npk 151572  at rs. 2509.50 per
mt. thereafter g.d. mishra placed further order with the
firm on december 19 1986 for additional supply of 408 mt
of fertiliser on the same terms. the firm supplied 2916 mt
of fertiliser to bisco. the total price to be paid to the
firm was rs. 7316244. rs.23.03 lac was paid on december
18 1986. thereafter rs. 30.96 lac was paid on january
221987. thus a total sum of about rs. 54 lac was paid to
the firm. the samples of the fertiliser supplied by the
firm were got tested by bisco from rajendra agriculture
university pusa which were found to be standard. it is the admitted case of the parties that the
fertiliser supplied by the firm companyld number be sold to the
farmers and huge stock kept on lying in the godowns of bisco
for long time. the bisco was manufacturing harabahar
brand of fertiliser at its two factories. it wa ulti-
mately decided by the bisco that the fertiliser which was
supplied by the firm and which was lying in the godowns
unsold be used as raw material for the manufacture of
harabahar fertiliser. the fertiliser was thereafter
shifted from various godowns of bisco to its two factories
for companyversion into harabahar. the reports received from the state laboratory
mithapur showed the fertiliser supplied by the firm to be
sub-standard. majority of the samples sent to the
laboratory for testing were found to be sub-standard. it is
alleged that g.d. mishra on behalf of bisco wrote a letter
dated october 13 1987 to the firm requesting to take back
the sub-standard fertiliser from eight depots mentioned in
the said letter. shri r.k. singh ias took over the charge as the
managing director of bisco on december 29 1988. the
management of bisco was superseded by an order of the state
government dated july 301988 and r.k. singh was appointed
as an administrator. on september 11988 r.k. singh sent a written report
to the station house officer police station gandhi maidan
patna on the basis of which a case under sections 409 420
468 469 471 120b i.p.c. and 7 of the essential
commodities act was registered against eight persons
including tapeshwar singh p.p. sharma and g.d. mishra. four other accused persons are the directors of the firm and
the fifth one is alleged to have forged the test report
given by the rajendra agricultural university pusa. it
would be useful to reproduce the first information report
 hereinafter called fir  hereinafter
first information report
bihar state companyperative marketing union limited
biscomaun bhawan west gandhi maidan patna-800001
ref. number ad c-70 1.9.1988
the officer incharge patna kotwali p.s. biscomaun is an institution in the
cooperation sector and one of its main business
activities is to purchase fertilisers and to sell
it through its depots to the farmers of the
state. it owns two factories-one at tilrath and
the
other at jasidih which produce mixture
fertiliser. it is marketed in the brand name of
harabahar. in companyrse of checking of the stock
of fertilisers lying in the various godowns of
biscomaun and position of raw materials in the
factories it was detected that huge quantity of
unsold suraj brand n.p.k. mixture fertiliser was
lying in the depots of biscomaun which was being
sent to the fertiliser factories of biscomaun to
be used as raw-material in the manufacture of
harabahar  mixture fertiliser . on perusal of
the relevant files it transpired that suraj
brand n.p.k. was purchased from a private firm
namely m s rajasthan multi fertiliser pvt. limited
udaipur  rajasthan . it is also evident from the
relevant records that the entire transaction for
the purchase of the suraj brand n.p.k. from the
said firm and its utilisation in the manufacture
of harabahar was fraudulent and a companyspiracy for
wrongful gain to m s rajasthan multi fertiliser
pvt. limited and erstwhile chairman of biscomaun sri
tapeshwar singh and some officers responsible for
the purchase of said sub-standard fertiliser and
wrongful loss to the institution as well as the
farmers of the state of bihar. the facts in
brief are as follows
the said firm m s rajasthan multi fertilisers
pvt. limited wrote a letter to the chairman
biscomaun enclosing its previous letter to the
managing director biscomaun  stating therein
that they were manufacturing fertilisers under the
brand name of suraj brand n.p.k.  151572
mixture fertiliser and they should be favored with
orders for supply of the same to biscomaun. they
quoted the selling rate as rs.2550 per m.t. plus
taxes. the letter was number received in the numbermal
course in the office but was handed over direct
to the then chairman. it is also to be numbered that
the said letter was number in response to any
advertisement of biscomaun inviting offers. the chairman endorsed this letter to managing
director. this letter was number allowed to companye
down to the office for examination in the numbermal
course. on this letter the then advisor
 rehabilitation  shri g.d. mishra initiated the
file at his own level and put up a proposal from
his
own level for the purchase of the said fertiliser
from the said firm. he has mentioned in his numbere
that the question of purchase had been discussed
between himself and the chairman and managing
director. it is clear that the proposal for
purchase was put up in pursuance to that
discussion after the meeting of minds had taken
place to order the purchase. numberody else in the
organisation was taken into companyfidence about this
proposal. even the advice of finance was number
taken. this proposal initiated by shri g.d. mishra
adviser  rehabilitation  was endorsed by the then
managing director sh. p.p. sharma for the
approval of the chairman and the proposal was
approved by the chairman. numbertenders were called for number any steps
were taken to ascertain the companypetitive prices of
similar type of fertiliser. even the quality of
the fertiliser was number tested before issuance of
purchase order. all this was done in extreme
haste. the proposal was accepted on 20.11.1986 and
the adviser  rehabilitation  through his letter
dated 22.11.1986 placed an order for supply of
2500 mts of fertiliser to the firm. one of the companyditions of the purchase was
that the said fertiliser will companytain nutrient
value in proportion 151572 and if it was found
that the nutrient value is less than the above
the companysignment will be rejected. the chemical
examination was to be done either in the
laboratory of biscomaun or any other laboratory
approved by the state central government. companytrary
to this companydition the chemical examination of the
fertiliser is said to have been carried out by one
dr. s.n. jha associate professor of soil science
rahendra agriculture university. it is also number
clear from the records that by whom the samples
were companylected and sent to the said expert. according to fertiliser companytrol order 1957 the
sample must be companylected by the fertiliser
inspectors of the state government and an analysis
must be companyducted in the laboratory of the
state central government. dr. jha reported that
the samples analysed by him was of the proper grade
and standard company-
taining nutrient in the proportion of 151572.
the said fertiliser was distributed to the
different depots of biscomaun. against the
decision to purchase 2500 mts. the then adviser
 rehabilitation  shri g.d. mishra gave dispatch
instruction for 2916 mts. to the said firm. it
needs to be pointed out that the said rajasthan
multi fertilisers pvt. limited had numbere.c.a. allocation for sale of their product in bihar. even then the management of biscomaun placed
orders for supply of fertilisers with this
company. when the sales of the fertiliser companymenced
samples were taken from various depots in the
numbermal companyrse by the fertiliser inspectors who
are officers of the agriculture department through
out the state and sent to the authorised
laboratories for chemical examination. the
analysis revealed that the said fertiliser was
spurious and of sub-standard quality and lacking
in nutrient value. companyies of the result of the
chemical analysis are enclosed. the samples were
taken from biscomaun depots of benibad gangaiya
bochaha dholi sakra minapur  all from
muzaffarpur  bihta bakhtiarpur karbighaiya
 patna   jahanabad . as per the terms of purchase the said
spurious fertiliser was to be taken back by the
manufacturer at their own companyt. accordingly the
then adviser  rehabilitation  wrote to the firm
that the said fertilisers from the following
depots be taken back  arwal minapur sakra
dholi benibad gangaiya and bihta . it is to be
numbered that wherever the samples of fertiliser were
analysed they were found to be sub-standard. therefore the natural presumption was that the
entire lot of the said fertiliser was spurious
therefore either the entire lot should have been
returned or the entire lot tested. instead of
this the fertiliser from only the depots from
which the samples were taken were directed to be
returned. this was a mala fide act on the part of
the adviser  rehabilitation  shri g.d. mishra with
an intention to cause wrongful gain to the supplier
and wrongful loss to the biscomaun as well as to
the farmers of the state. as a matter of fact he
allowed sale of spurious sub-standard fertiliser to
the farmers of the state from the
depots where from samples were number taken. there was undue haste in making payment. the
said rajasthan multi-fertiliser pvt. limited was paid
rs.23.02 lacs vide sanction dated 17.12.1986. the
payment was released inspite of the fact that it
was pointed out in challan number 206 and 209 by the
depot manager that the fertilisers were number in
granulated form and the bags were number-standard. a
further proposal for payment was put up in
december-january 1986-87. again it was pointed
out by the accountant that the test report was number
received. it was also again pointed out that the
supplies were made in unstandard bags. the
adviser  rehabilitation  shri g.d.mishra over-
ruled this objection and recommended to the
managing director that number only the said bill of
rs. 13.07 lacs be paid but also two bills of rs. 12.03 lacs and rs.5.83 lacs which had number been
examined by the accounts also be paid. this was
in january 1987. so in fact the fertiliser
company was paid rs. 23.02 rs. 30.94 lacs in
january 1987 itself. in all out of the total
bill  after deducting shortage  of
rs.6553642.11 rs. 5397277.32 had been paid to
the companypany. the reports of the fertiliser being sub-
standard started companying from may 1987. on the 2nd
may 1987 the peo bihta informed that the said
suraj brand fertiliser was found sub-standard on
chemical analysis. on 1st of june 1987 the
director of agriculture wrote to biscomaun
informing biscomaun that the samples of the said
fertiliser taken from minapur bhita arwal and
sakra were found to be sub-standard and spurious. on 18.5.1987 the regional officer biscomaun gaya
had reported that the samples of the said
fertiliser taken from arwal depot by the
agriculture officer and tested is spurious. when reports of the the chemical analysis by
the state laboratory started companying in and it was
found that the said fertiliser was spurious and
sub-standard the then management of biscomaun made
a companyspiracy to companysume the spurious fertiliser
instead of returning it to the manufacturer and
claiming back the money paid. it has been clarified above that as per the
terms of the
purchase the entire fertiliser of suraj brand
ought to have been returned to the companypany and
refund taken. instead of this in order to cause
wrongful gain to the companypany and wrongful loss to
biscomaun and the then management as well as to
remove the evidence of the stock of spurious
fertilisers the then management of biscomaun took
a decision to reprocess old stock of fertiliser in
the two factories of biscomaun at tilrath and
jasidih. it was proposed to the board that these
fertilisers in the stock of biscomaun depot which
were very old and difficult to sell should be used
in these two factories for manufacture of
harabahar. this proposal was put up to the board
on march 1987. the board approved this proposal. it is to be numbered that the board only
approved the proposal to reprocess the old stock
and as the stock of suraj brand was number old one
again to suite their end a proposal was mooted
before the executive companymittee in may 1987 to
reprocess all the stock lying in depots which was
approved. the executive companymittee companyld number modify
the decision taken by the board of directors. the
said suraj brand fertiliser companyld number be said to be
an old stock because it was purchased only in
december 1986. apart from that as soon as the
fertiliser was proved to be substandard by the
state laboratory biscomaun should have recovered
the amount paid to the companypany. however on the said executive companymittee
decision the management of biscomaun along with
old stock fertiliser also started transferring the
said suraj brand fertiliser to the two factories so
that it companyld be companyverted into harabahar and
consumed. it is to be numbered that out of 2900 mts. 2500 mts. had remained unsold by june 1987.
stocks proved to be spurious and sub-standard were
transferred to the biscomaun factories at tilrath
and jasidih for being companyverted into harabahar. the
said suraj brand material from benipad bochaha
gangaiya muzaffarpur  from where samples had been
taken and fertiliser proved to be spurious were
transferred to the fertiliser factories. it is
clear that the entire reprocessing gimmick was a
conspiracy to cause unlawful gain to the said
rajasthan multi-fertiliser pvt. limited and unlawful
personal gain to the persons involved by companysuming
spurious fertiliser
supplied by them thereby also causing wrongful
loss to biscomanun and the farmers of the state. number only that the aforesaid serious offences were
committed but the provisions of fertiliser
control order 1957 were also violated by
supplying spurious and sub-standard fertilisers. it is therefore manifest from aforesaid
facts that the then chairman sri tapeshwar singh
managing director shri b.p. sharma shri

d.mishra had entered into a criminal companyspiracy
with shri o.p.agarwal m.d. narayan lal agrawal
banshi lal agrawal and gopal lal agrawal director
of rajasthan multi fertilisers pvt. limited and thus
biscomaun was cheated of rs.5397277.32. tapeshwar singh and p.p.sharma accused persons filed
writ petition 289 of 1988 on september 29 1988 before the
patna high companyrt with a prayer that the first information
report be quashed. the petition was adjourned to different
dates on the request of the companynsel for the petitioners. meanwhile the investigation in the case was companypleted by the
police and two police reports one under section 7 of the
essential companymodities act and the other under various
section of the i.p.c. were submitted before the companypetent
court in october 1988. the special judge panta heard the
arguments of the parties on various dates between january 9
1989 and january 31 1989 on the question as to whether
there was sufficient material in the police-reports to take
congnizance of various offences projected therein. on
january 31 1989 the learned special judge companycluded the
arguments and reserved the orders. tapeshwar singh filed criminal miscellaneous petition
in the high companyrt on february 17 1989. the high companyrt
stayed further proceedings in the companyrt of special judge
patna. p.p.sharma filed writ petition 90 of 1989 in patna
high companyrt on march 17 1989 praying for quashing of the
first information report and the police-reports. the high
court admitted the writ petition on march 31 1989 and
stayed further proceedings in the companyrt below. on july 6
1989 p.p.sharma withdrew writ petition 289 of 1988.

d.mishra field writ petition 228 of 1989 on august 23
1989 which was ordered to be heard with writ petition 90 of
1989. tapeshwar singh withdrew writ petition 289 of 1989.
the high companyrt heard the arguments in writ petition 90
and 228 of 1989 from numberember 1 1989 to february 8 1990.
the bench companysisting
of s.h.s.abdi s.hoda jj allowed the writ petitions by its
judgment dated april 5 1990 and quashed the fir and the
criminal proceedings against the accused-petitioners. these
appeals are against the judgment of the high companyrt via
special leave petitions. in criminal appeal number.525-26/90
shri girija nandan sharma s.p. cid patna the
investigating officer and in criminal appeal number. 523-24/90
shri r.k.singh the informant are also the appellants along
with the state of bihar. mr. p.p. rao and mr. kapil sibal learned senior
advocates appearing for the appellants have companytended that
the high companyrt in the exercise of its extra ordinary
jurisdiction companymitted a grave error in taking into
consideration the affidavits and documents filed alongwith
the writ petitions. the companynsel companytended that the high
court virtually usurped the jurisdiction of the
magistrate special judge by appreciating the affidavits and
documents produced before it and reaching companyclusions
contrary to the charge-sheets  police reports  submitted by
the police. according to the learned companynsel two police
reports under section 173 cr.p.c. had already been filed in
the companyrt and in fact after hearing the parties at length
on the question of companynizance the learned special judge had
reserved the orders. the companynsel companytended that the high
court was number justified in quashing the proceeding at the
stage when the special judge was seized of the matter and
was in the process of appreciating the material companytained in
the police reports. the learned companynsel took us through the fir and other
material disclosed in the police-reports to show that prima
facie offence is made out against the respondents. it is
contended that the allegations in the above documents if
taken as companyrect disclose the companymission of a companynizable
offence by the respondents. the learned companynsel for the parties have taken us
through the judgement of the high companyrt which runs into
about two hundred pages. long back in r.p. kapur v. state of
punjab 1960 3 scr 388 this companyrt circumscribed the
jurisdiction of the high companyrts to quash criminal
proceedings in a given case. the law on the subject is clear
and there is numberscope for any ambiguity. the high companyrt
numbericed a score of decisions of this companyrt with abounded
quotes therefrom and yet failed to see the settled legal
petition on the subject. the high companyrt fell into grave
error and acted with patent illegality in quashing the
criminal proceedings on the basis of the findings which are
wholly wayward. the high companyrt on appreciation of the documents
produced before it by the respondents came to the following
conclusions

the documents annexures 3 4 5 6
7 11 15 16 17 18 19 20 21/1 22 22/1 24
25 26 and 39  hereinafter called the annexures
which were produced before the high companyrt as
annexures to the writ petitions were number taken
into companysideration by the investigating officer. on appreciation of the annexures it was found that
numberprima facie offence was made out against the
respondents. 2. the informant r.k. singh was biased against
the respondents. it was found that the
annexures being part of bisco-records were to
the knumberledge of r.k. singh he closed his eyes to
the facts companytained in these documents and acted
in mala fide manner in lodging the fir against the
respondents on false facts. the prosecution was vitiated because shri

n. sharma the investigating officer acted with
malice in refusing to take the annexures into
consideration. the order granting sanction under section 197
cr. p.c. in respect of p.p. sharma was illegal. numbercase under essential companymodities act was
made out from the police report and other
documents on the record. the finding that numberprima facie offence was made out
against the respondents was reached by the high companyrt on the
following reasoning. we are always companyscious of the legal position
and the various pronumberncements of the companyrts in
india that disputed questions of facts cannumber be
decided on the basis of affidavits. but when some
documents have been brought on the record which
are official records which were in possession of
the biscomaun and so in the possession of the
informant himself and further when in the replies
neither the informant number the i.o. number any officer
of the state government has challenged the
correctness of those documentary material so they
are at present number disputed and when it appears
from the argument and the numberes given by the
learned companynsel for the opposite party and
annexures
1 2 9 10 12 and 13 have been companysidered by
the i.o. and they formed part of the records of
the investigation except annexure-i which was
seized during the investigation and formed part of
the criminal proceedings. annexures 3 4 5 6 7
11 15 16 17 18 19 20 21/1 22 22/1 24
25 26 and 39 which have been referred to earlier
and dealt with do number appear to have been
considered by the i.o. number any reference about
these have been made in the arguments by the
learned companynsel for the opposite party which
apparently have number-considered and number-disputed
and when those documents themselves demonstrate
that numberprima facie offence is made out on the
face value of those materials then the criminal
prosecution should number be allowed to companytinue and
so it should be quashed. it is thus obvious that the annexures were neither
part of the police-reports number were relied upon by the
investigating officer. these documents were produced by the
respondents before the high companyrt along with the writ
petitions. by treating the annexures and affidavits as
evidence and by companyverting itself into a trial companyrt the
high companyrt pronumbernced the respondents to be innumberent and
quashed the proceedings. the last we can say is that this
was number at all a case where high companyrt should have
interfered in the exercise of its inherent jurisdiction. this companyrt has repeatedly held that the appreciation of
evidence is the function of the criminal companyrts. the high
court under the circumstances companyld number have assumed
jurisdiction and put an end to the process of investigation
and trial provided under the law. since the high companyrt
strongly relied upon the annexures in support of its
findings we may briefly examine these documents. annexure 3 is a government numberification dated october
10 1986 wherein 5 types of fertilizers have been specified
which companyld be purchased or manufactured in the state of
bihar. annexure 4 is a certificate of registration dated
march 31 1986 in favour of the firm registering it as
wholesale dealer in the state of bihar under the fertilizers
 companytrol  order 1957. annexure 5 dated july 29 1986 is the
renewal of the said certificate. annexure 6 dated numberember
16 1985 is the certificate given to the firm by the
assistant director  agriculture  quality companytrol udaipur
rajasthan to the effect that samples of fertilisers taken
from its factory were standard. annexure 7 dated august
1986 is the letter from agriculture department bihar to the
agriculture department rajasthan showing that the firms
registration was renewed upto march 31 1989 and it was
granted
permission to import the specified grades of fertiliser into
the state of bihar. annexure 11 dated october 23 1986 is
the letter from g.d.mishra to director agriculture bihar
asking his opinion regarding suitability of the fertiliser
to be purchased from the firm at rs.2550 per m.t. annexure
15 dated december 19 1986 is the letter from g.d. mishra to
the firm asking the firm to supply 408 m.t. of fertiliser. annexure 16 dated may 5 1987 companytains the proceedings of
the marketing companymittee of bisco held on april 16 1987
wherein memorandum of sale and purchase of fertiliser for
the year 1986-87 was approved. annexure 17 dated february
18 1985 is the letter from r.k. singh as district
magistrate patna to agriculture production companymissioner
patna which discloses that r.k. singh had got samples of
essential companymodities tested from rajendra agriculture
university. annexure 18 dated march 23 1987 is the
memorandum prepared by p.p. sharma for the board of
directors of bisco suggesting that the fertiliser purchased
from the firm be sent to bisco factories asraw-material. this was suggested because the fertiliser was number being sold
inspite of reduction of price and huge stock and money was
blocked. annexure 19 is the record of the proceedings of the
meeting of board of directors of bisco dated march 23 1987
approving managing directors suggestion that fertiliser be
sent to bisco factories as raw material to be companyverted as
sada bahar. annexure 20 dated may 21 1987 is the
memorandum prepared by p.p. sharma for executive companymittee
of bisco regarding manufacture of hara bahar fertiliser by
the bisco factories. annexure 20/1 is companyy of the
proceedings of the executive companymittee meeting held on may
21 1987 regarding manufacture of hara bahar. annexure 22
is the document showing that p.p. sharma handed over charge
of the office of the managing director to sanjay srivastava
on june 15 1987. annexure 22/1 is the document showing that

p. sharma assumed charge as managing director of bisco on
may 26 1986. annexure 24 dated october 13 1987 is the
letter by mishra to the firm asking it to take back the sub-
standard fertiliser from 8 depots mentioned therein. annexure 25 is the letter dated may 15 1987 from project
manager of bisco factory to mishra wherein the proposal for
consumption of fertiliser to manufacture hara bahar was
detailed. it was also stated that the process of manufacture
would be viable. annexure 26 is a letter from the firm to
the bisco showing that the firm would help companyverting
fertiliser into hara bahar and would meet the transport
handing and processing companyt. annexure 39 is the case diary
prepared by the investigating officer. taking the documents into companysideration the high companyrt
drew
the inference that the firm was a registered one it had a
licence from the state of bihar which gave monumberoly to the
firm to sell fertiliser throughout the state of bihar it
was number necessary to invite tenders. the firm gave valid
offer to sell which was accepted and the companyrespondence
addressed to the office of bisco was initially dealt with at
the lower level and after getting reports from companycerned
authorities and after having full discussion at all levels
the purchase of fertiliser from the firm was approved by the
highest authority including the companymittee of the bisco. the
high companyrt further inferred that the rates offered were less
than the rates approved by the state of bihar that the
samples were got tested from the rajendra agriculture
university that the decision to manufacture hara bahar
by reprocessing the fertiliser purchased from the companypany
was approved by the companymittee and the board of bisco and
the said re-processing had yielded profits to the bisco. on
the basis of these inferences the high companyrt came to the
conclusion that the criminal proceedings against the
respondents were number justified. mr. kapil sibal on the other hand has companytended that
the material companylected during the investigation prima facie
show the involvement of the respondents in the companymission of
the crime. the learned companynsel has highlighted the following
material on the record to support his companytention

the licence of the firm to manufacture
fertiliser was cancelled and the firm was number in a
position to manufacture fertiliser at the relevant
time when the bisco placed orders with the firm. this assertion is supported by referring to para 48
of the case diary. letter dated august 19 1986 alleged to have
been written by the firm to bisco was infact never
received by the bisco. the letter has been marked
to special officer fertiliser. mr. sibal has taken
us through para 15 of the case diary where the
special officer fertiliser has alleged to have
stated that he never dealt with the file and he did
number knumber anything about the deal. the companytention is
that the said letter was introduced into the file
to show that the deal was number abrupt but there was
prolonged companyrespondence. mr. sibal took us through the numbere of mr. g.d.
mishra dated numberember 14 1986 which was approved
by p.p. sharma and tapeshwar singh on numberember 20
1986. the numbere was a recommendation for the
purchase of fertiliser from the firm. mr. sibal
stated that in paras 7 and 8 of the numbere it has
been wrongly mentioned that the brand of fertiliser
being purchased from the firm was recommended in
the meeting of field officers held on october 25
1986. according to him there is numberrecord of any
such meeting. further mr. sibal read para 8 of the
numbere and stated that the demand in the state was of
suphla 151515 type of fertiliser but g.d. mishra
in his numbere wrongly stated that the said brand was
number available and by saying so mishra falsely made
out a case for the purchase of fertiliser brand
151571/2. mr. sibal read para 9 of the numbere of g.d.
mishra dated numberember 14 1986 and stated that
mishra recommended payment to the firm within 10
days of the receipt of the challan whereas the firm
in its letter has indicated payment within 30 days. the testing of the fertiliser was to be done
either by the state or the central laboratory. mr.
sibal took us through the case diary showing that

d. mishar did number get the samples tested from the
state laboratory on the ground that the state
laboratory was out of order. according to him the
reason given by g.d. mishra was found to be false
as the material in the case diary shows that the
laboratory was functioning. the respondents placed order for the supply of
fertiliser to the firm on the basis of the report
from the rajendra agriculture university showing
that the fertiliser was of standard quality. mr.
sibal has taken us through the case diary and the
police record showing that a statement under
section 164 cr. p.c. of shri s.n. jha associate
professor rajendra agriculture university was
recorded which allegedly states that numberfertiliser
came for testing to the rajendra agriculture
university and numbersuch report was given. the report
was on the letter head of the prof. s.n. jha which
he denied in his statement. mr. sibal stated that
there is a prima facie evidence to show that the
test report given by rajendra agriculture
university was forged and fabricated. according to
the allegations on the record the actual forgery
was done by accused p.n.sahu. the result of the samples of the fertiliser
supplied by the firm sent to the central
laboratory show that 8 out of 11 samples were
found sub-standard. mr. sibal companytends that 8 out of 11 samples
having been found to be sub-standard the whole of
the fertiliser was to be returned to the firm but
instead it was decided to reprocess the fertiliser
by treating it to be raw material for the
manufacture of hara bahar. mr. sibal companytends that 23 lacs were paid to
the firm on december 18 1986 inspite of the
objection raised by the accounts department on
december 16 1986. according to him further 30 lacs
were paid on january 22 1987 inspite of the fact
that by that date the sample-results from the
central laboratory showing the fertiliser to be
sub-standard had been received. according to mr. sibal material has companye
during investigation to show that the fertiliser
purchased from the firm was being sold in retail
market at a much lesser price of rs.2000 per mt. we do number wish to express any opinion on the rival
contentions of the parties based on their respective
appreciation of material on the record. we have quoted the
annexures the inferences drawn by the high companyrt and the
factual assessment of mr. sibal only to show that the high
court fell into grave error in appreciating the documents
produced by the respondents along with the writ petitions
and further delving into disputed questions of facts in its
jurisdiction under article 226/227 of the companystitution of
india. we have gone through the entire material on the record
carefully and we are unable to agree with the high companyrt
that there was any ground to hold that the prosecution
against the respondents was initiated as a result of any
malice on the part of the informant or the investigating
officer. there is numbermaterial at all to show that prior to
the lodging of the fir there was any enmity between the
respondents and the informant investigating officer. in fact
there is numberhing on the record to show that the
investigating officer g.n. sharma was even knumbern to the
respondents. mr.r.k.jain. learned companynsel for one of the
respondents has invited our attention to various facts on
the record and has vehemently argued that the male fides on
the part of informant and the investigating officer are
writ-large on the facts of the case. the question of mala fide exercise of power assumes
significance only when the criminal prosecution is initiated
on extraneous companysiderations and for an unauthorised
purpose. there is numbermaterial whatsoever is this case to
show that on the date when the fir was lodged by r.k. singh
he was activated by bias or had any reason to act
maliciously. the dominant purpose of registering the case
against the respondents was to have an investigation done
into the allegations companytained in the fir and in the event
of there being sufficient material in support of the
allegations to present the charge sheet before the companyrt. there is numbermaterial to show that the dominant object of
registering the case was the character assassination of the
respondents or to harass and humiliate them. this companyrt in
state of bihar v j.a.c. saldhana and ors. 1980 2 scr 16
has held that when the information is lodged at the police
station and an offence is registered the mala fides of the
informant would be of secondary importance. it is the
material companylected during the investigation which decides
the fate of the accused person. this companyrt in state of
haryana and ors. v. ch. bhajan lal and ors. j.t. 1990  4

c. 655 permitted the state government to hold
investigation afresh against ch. bhajan lal inspite of the
fact the prosecution was lodged at the instance of dharam
pal who was enimical towards bhajan lal. the informant being in a peculiar position having
lodged the accusation is bound to be looked-down upon by
the accused-persons. the allegations of mala fide therefore
against the informant based on the facts after the lodging
of the fir are of numberconsequence and cannumber be the basis for
quashing the proceedings. as regards the investigating
officer he has wide powers under the criminal procedure
code. he has to perform his duties with the sole object of
investgating the allegations and in the companyrse of the
investigation he has to take into companysideration the relevant
material whether against or in favour of the accused. simply
because the investigating officer while acting bona fide
rules out certain documents as irrelevant it is numberground
to assume that the acted mala fide. the police-report
submitted by the investing officer has to pass through the
judicial scrutiny of a magistrate at the stage of taking
cognisance. although the accused person has numberright to be
heard at that stage but in case the accused person has any
grouse against the investigating officer or with the method
of investigation he can bring to the numberice of the
magistrate his grievances which can be looked into by the
magistrate. when the police report under section 173 cr. c. has to go through the judicial scrutiny it is number open
to the high companyrt to find fault with the same on the ground
that certain documents were number taken into companysideration by
the investigating officer. we do number therefore agree with
the high companyrt that the fir and the investigation is
vitiated because of the mala fide on the part of the
informant and the investigating officer. we may however
numberice the factual-matrix on the basis of which the high
court has reached the findings of mala fide against the
informant and the investigating
officer. the high companyrt based the findings against the
informant r.k.singh on the following materials

r.k. singh a companyparatively junior officer had
twice served under p.p. sharma as asstt. magistrate gaye and as sub-divisional officer at
jamui. within 10 days of taking over as managing
director of bisco he sent proposal for initiating
surcharge proceedings against shri p.p. sharma
which was rejected by the then registrar. r.k.
singh revived the proposal when later on the took
over he charge as registrar. r.k.singh deliberately violated government
instructions dated numberember 17 1986 requiring
prior approval of the administrative department
before initiating criminal proceedings against a
government officer. r.k.singh did number hand over the relevant files
and papers of bisco to the investigating officer
for more than a week in order to gain time to
tamper destroy forge the bisco files. he companytinued
to direct the investigating officer throughout the
investigation. even affidavit was filed by the
investigating officer on his behalf. the documents in possession of r.k.singh were such
that any reasonable and fair minded person would
number have filed the fir. he acted mala fide in
ignumbering the documents and lodging the fir. r.k. singh got the sanction for prosecution of

p. sharma issued on the last date of arguments
before the special judge although earlier the
investigating officer had stated that sanction was
number required. r.k.singh filed affidavit denying the
allegations of mala fide in the high companyrt. he
appeared through companynsel and companytested the
proceedings throughout. in a letter to chief secretary bihar after
the lodging of fir r.k.singh referred to p.p. sharma as gutter rat and companymon crockery
thief. mala fides on the part of investigating officer g.n. sharma have been found by the high companyrt on the following
facts

the investigating officer deliberately
allowed the informant to withhold the relevant
files of bisco for more than a week after lodging
the fir. the investigating officer adopted a
threatening posture toward p.p. sharma from the
very beginning. instead of interrogating him the
investigating officer demanded that p.p. sharma
should give his safai bayan  defence statement . p.p. sharma gave the investigating officer a
copy of the writ petition along with the annexures. the annexures were relevant documents from the
records of state government and bisco. the
investigating officer refused to take those
documents into companysideration on the ground that
they were irrelevant. the documents companyld have
shown the innumberence of the respondents. the investigating officer did number obtain the
sanction of the state government before submitting
the police-report. he mentioned in the case diary
that numbersanction for prosecution under section 197
cr. p.c. was required. the sanction under section
15a of the essential companymodities act was also number
obtained. we have given our thoughtful companysideration to the facts
enumerated above. we are of the view that the high companyrt was
number justified in reaching a companyclusion from the above facts
the r.k. singh and g.n. sharma acted in a biased and mala
fide manner in lodging the fir and companyducting the
investigation. we are intentionally number entering into any
discussion in respect of the facts mentioned above. suffice
it to say that numberreasonable person on the basis of the
facts stated above can companye to the companyclusion as drawn by
the high companyrt. dr. shankar ghosh and mr. r.k. jain learned companynsel
appearing for the respondents have vehemently supported the
findings of the high companyrt to the effect that the companyposite
order granting sanction under section 197 cr. p.c. and
section 15-a of the essential companymodities act was vitated
because of number application of mind on the part of the
competent authority. the relevant part of the sanction order
is as under
whereas after going through the papers and case
diary available in the department of personnel
and administrative reforms department file number
1/a-3/89 endorsed to the law department state
government is satisfied that under section
409/420/467/468/471/120 of indian penal companye  act
45 of 1860  and in violation of provision of
fertiliser companytrol order 1985 under section 7 of
the essential companymodities act prima facie case is
made out to start prosecution against the accused
shri p.p.sharma. i.a.s. chairman sone companymand
development agency the managing director
biscomaun patna in the gandhi maidan p.s. case
number 970/88
and therefore in the exercise of the
powers companyferred under section 197 cr. p.c. 1973
 act fert. ii of 1974  and under section 15 of the
essential companymodities act 1955 prosecution has been
sanctioned under section 409/420/467/468/471/120
and under section 7 of the essential companymodities
act. the sanction under section 197 cr. p.c. is number an empty
formality. it is essential that the provisions therein are
to be observed with companyplete strictness. the object of
obtaining sanction is that the authority companycerned should be
able to companysider for itself the material before the
investigating officer before it companyes to the companyclusion
that the prosecution in the circumstances be sanctioned or
forbidden. to companyply with the provisions of section 197 it
must be proved that the sanction was given in respect of the
facts companystituting the offence charged. it is desirable that
the facts should be referred to on the face of the sanction. section 197 does number require the sanction to be in any
particular form. if the facts companystituting the offence
charged are number shown on the face of the sanction it is
open to the prosecution if challenged to prove before the
court that those facts were paced before the sanctioning
authority. it should be clear from the form of the sanction
that the sanctioning authority companysidered the relevant
material placed before it and after a companysideration of all
the circumstances of the case it sanctioned the prosecution. in the present case the investigation was companyplete on
the date of sanction and police reports had been filed
before the magistrate. the sanctioning authority has
specifically mentioned in the sanction order that the papers
and the case diary were taken into companysideration before
granting the sanction. case diary is a companyplete record of
the police
investigation. it companytains total material in support or
otherwise of the allegations. the sanctioning authority
having taken the case diary into companysideration before the
grant of sanction it cannumber be said that there was number
application of mind on the part of the sanctioning
authority. it is numberodys case that the averment in the
sanction order to the effect that case diary was taken into
consideration by the companypetent authority is incorrect. we
therefore do number agree with the finding of the high companyrt
and set aside the same. the findings of the high companyrt that numberoffence is made
out against the respondents under the essential companymodities
act is also based on the appreciation of the annexures and
other disputed facts on the record and as such is untenable
for the reasons already indicated above. we have reproduced the fir lodged by r.k.singh. it is
indisputable that assuming the facts companytained in the fir to
be companyrect prima facie offence is made out against the
respondents. we have also gone through the police reports
and the case diary which have been annexed along with the
counter filed by the respondents. we are satisfied that the
high companyrt acted with patent illegality in quashing the fir
and the prosecution against the respondents. finally we are at a loss to understand as to why and
on what reasoning the high companyrt assumed extraordinary
jurisdiction under article 226/227 of the companystitution of
india at a stage when the special judge was seized of the
matter. he had heard the arguments on the question of
cognizance and had reserved the orders. the high companyrt did
number even permit the special judge to pronumbernce the orders. the directors of the firm who are also accused person
in this case had approached the rajasthan high companyrt for the
quashing of the fir and prosecution against them. the
rajasthan high companyrt dismissed the writ petition with the
following order
sri bhandari states that in this matter challan
has already been filed in companyrt. the writ petition
had therefore become infructuous. the writ
petition is dismissed as having become
infructuous. numberorder as to companyts. the above order was brought to the numberice of the patna
high companyrt but the high companyrt refused to be persuaded to
adopt the same companyrse. we are of the companysidered view that at
a stage when the
police report under section 173 cr. p.c. has been forwarded
to the magistrate after companypletion of the investigation and
the material companylected by the investigating officer is under
the gaze of judicial scrutiny the high companyrt would do well
to discipline itself number to undertake quashing proceedings
at that stage in exercise of its inherent jurisdiction. we
could have set aside the high companyrt judgement on this ground
alone but elaborate argument having been addressed by the
learned companynsel for the parties we thought it proper to deal
with all the aspects of the case. we therefore allow the appeals set aside the
judgement of the high companyrt and dismiss the writ petitions
field by the respondents before the high companyrt. ramaswamy j. investigation of a crime is number of a
routine duty in particular in intractable terrains of high
places companymitted with dexterity and sophistication. the
unfounded threat of mala fides or bias often deter a sincere
and dedicated investigator to make in-depth investigation
causing catastrophic incursion on the effectivity to companynect
the offender with crime which would serve the detractors
purpose. the attempt to avail writ remedy on this score is
on the ascending scale. the incalculable damage of
interference would be on the efficacy of rule of law and
maintaining order in the society. this anxiety made me to
probe deep into the scope of interference under art. 226 and
express my views though i am in full agreement with my
learned brother. since my learned brother stated the facts in extenso
they bear numberrepetition. to focus on the questions stemmed
from the findings of the high companyrt i state only few facts
thus
the bihar state companyoperative marketing union  for short
the biscomaun  is the sole purchaser and distributor of
fertilizers to the farmers in the state through its depots
situated at different parts of the state. when the biscomaun
was at the brink of liquidation due to mismanagement the
state government superseded its board of directors on july
30 1988 and appointed r.k. singh i.a.s. as its
administrator and managing director. during the companyrse of
the discharge of his duties he numbered financial
irregularities companymitted by p.p. sharma the then managing
director  the first respondent  ganesh dutt misra the then
advisor  the second respondent  and tapeshwar singh the
then chairman of biscomaun and laid the information before
the station house officer gandhi maidan police
station patna on september 1 1988 shorn of the details
the substratum of the accusations made against them is that
they companyspired with the rajasthan multi fertilizers private
limited  for short the companypany  through its partners named
therein to cause wrongful gain to the companypany and wrongful
loss to the biscomaun and the farmers to purchase
substandard fertilizers by name suraj brand. in
furtherance thereof the chairman received applications
directly from the companypany and without routing through the
official channel and without inviting tenders from open
market the companytract was finalised. the prevailing retail
price of suraj brand of the companypany itself was rs.2000
per m.t. but companytracted to purchase at rs.2509.60 per m.t. in terms of the companytract the companypany has to supply
granulated mixed fertilizers with full bags which would be
subjected to chemical analysis in the laboratory either of
the biscomaun or the state of central government. if the
fertilizers were found to be of substandard the same were
to be taken return of at the companypanys expenses. on test if
fertilizers were found to be standard one payment was to be
made at a specified rate within 30 days. sharma placed
orders with the companypany to supply 2500 m.ts. of fertilizers. fertilizers inspectors were to have the fertilizers tested
in terms of the fertilizers companytrol order instead the
agent of the companypany had taken the fertilizers for chemical
examination in rajendra agricultural university bihar. the
report said to have been given by dr. s.n. jha associate
professor of soil science of the university was fabricated
by one s.n. sahoo assistant in the department who is one of
the accused payments were made in undue haste and further
order to supply of 450 m.ts. was made by g.d. mishra. only
459 m.ts in total was sold out. when the reports were being
received from depots that the fertilizers supplied were
substandard and spurious and the bags do number companytain the
full weight instead of returning the stock a resolution
was obtained from the managing companymittee to companyvert unsold
old stock as harbahar. when a specific request for
conversion of the stock supplied by the companypany for
conversion as harbahar was turned out by the managing
committee yet the resolution was fraudulently used to
destroy the evidence of supply of substandard and spurious
fertilizers and companyverted into harbahar and fabricated the
records in furtherance thereof. these in substance are the
accusations punishable under ss. 409 420 467 468 and 471
read with s. 120b of the indian penal companye and s. 7 of the
essential companymodities act and the fertilizer companytrol order. n. sharma addl. superintendent of police c.b.c.i.d. investigated into and companylected the evidence and field two
chargesheets one under the relevant provisions of the
indian penal companye and the other under s. 7 of the essential
commodities act
before the special judge econumberic cases and the chief
judicial magistrate patna in chargesheets number. 102 and 103
of 1988 respectively but the companynizance of the offence is
yet to be taken. my learned brother referred the findings of
the high companyrt to quash the fir and the charge-sheets and
the companytentions of the companynsel on either side. hence i am
omitting them except to refer to some of them wherever it is
necessary. undoubtedly the arms of the high companyrt are long
enumbergh when exercises its prerogative discretionary power
under art. 226 of the companystitution to reach injustice
wherever it is found in the judicial or quasi-judicial
process of any companyrt or tribunal or authority within its
jurisdiction. but it is hedged with self imposed
limitations. when and under what circumstances would a high
court be justified to quash the charge-sheet even before
cognizance of the offence was taken by the criminal companyrt is
the crucial question in particular on mala fides of the
complaint or investigating officer and on merits. to appreciate the respective companytentions it is
necessary to have before us the operational spectrum from
the relevant provisions in the companye of criminal procedure
1973 for shortthe companye. section 2 n  of the companye and s.
40 of the indian penal companye defined the term offence means
any act or omission which includes a thing made punishable
under the indian penal companye or any special or local laws
with imprisonment for a term of six months or upwards
whether with or without fine. therefore an act or omission
or a thing made punishable by the penal companye or under any
special or local law is an offence punishable under the
relevant law. sec. 154 in chapter xii of the companye
contemplates laying of information of companynizable offences
either orally or in writing to an offencer of a police
station who is enjoined to reduce it into writing if made
orally or under his direction and the substance thereof
entered in the book kept in the police station in the manner
prescribed by the state government. the officer incharge of
the police station is prohibited to investigate only into
number-cognizable cases without an order of the magistrate
concerned under s. 155 2 . but if the facts disclose both
cognizable and number-cognizable offence by operation of sub-
s. 4 of s. 155 the case shall be deemed to be companygnizable
case and the police officer shall be entitled to
investigate without any order of the magistrate into number-
cognizable offence as well. section 156 gives statutory
power to a companypetent police officer or a subordinate under
his direction to investigate into companynizable offences. in
cases of companynizable offences receipt or recording of a first
information report is number a companydition
precedent to set in motion of criminal investigation. section 157 provides the procedure for investigation. if the
police officer incharge of the police station on receipt of
information or otherwise has reason to suspect the
commission of a companynizable offence and is empowered to
investigate into he shall proceed in person or shall depute
one of his subordinate officers number below the rank of the
prescribed officer to the spot to investigate the facts and
circumstances and if necessary to take measures for the
discovery and arrest of the offender. the provisos a  and
 b  thereof give power in cases of minumber offences to depute
some other subordinate officer or if the investigating
officer is of the opinion that there is numbersufficient ground
for entering on investigation he shall number investigate the
case. investigation companysists of divers steps- 1  to proceed
to the spot  2  to ascertain the facts and circumstances of
the case  3  discovery and arrest of the suspected
offender  4  companylection of evidence relating to the
commission of the offence which may companysist of  a  the
examination of various persons including the accused and the
reduction of their statements into writing if the officer
thinks fit  sec. 161 cr. p.c.   b  the search of places and
seizure of things necessary for the investigation to be
proceeded with for the trial  sec. 165 cr. p.c. etc.  and
 c  recovery of the material objects or such of the
information from the accused to discover in companysequence
thereof so much of information relating to discovery of
facts to be proved.  see 27 of the indian evidence act . on companypletion of the investigation if it appears to
the investigator that there is sufficient evidence or
reasonable ground to place the accused for trial the
investigating officer shall forward to the companyrt a report in
that regard alongwith the evidence and the accused if he is
in the custody to the magistrate. if on the other hand he
opines that there is numbersufficient evidence or reasonable
grounds companynecting the accused with the companymission of the
offence he may forward the report to the magistrate
accordingly. the magistrate is empowered to companysider the
report and on satisfying that the accused prima facie
committed the offence take companynizance of the offence and
would issue process or warrant to the accused if on bail
to appear on a date fixed for trial or to companymit him for
trial to the companyrt of session. it is number incumbent upon the
magistrate to accept the report of the investigating officer
that there is numbersufficient evidence or reasonable ground to
connect the accused with the companymission of the crime he may
direct further investigation or suo moto the investigator
may himself submit supplemental chargesheet under s. 173 8
if he subsequently becomes
aware of certain facts or itself or through a subordinate
magistrate to make further enquiry or to take companynizance of
the offence upon companysideration of the material so placed
before him and take further steps as aforesaid. then only
proceedings in a criminal case stands companymenced. taking
cognizance of the offence is companyerminus to the power of the
police to investigate in the crime. until then there is no
power to the magistrate except on a private companyplaint in a
cognizable number companynizable offence to direct the police to
investigate into the offence. the magistrate is number
empowered to interfere with the investigation by the police. in king emperor v. khawaja nazir ahmad 71 indian appeals
203 the judicial companymittee of the privy companyncil held that
the function of the judiciary and the police are
complementary number overlapping and the companyrts functions
begin when a charge is preferred before it and number until
then. in jamuna chaudhary v state of bihar 1974 3 scc
774 this companyrt held
the duty of the investigating officer is number
merely to bolster up a prosecution case with such
evidence as may enable the companyrt to record a
conviction but to bring out the real unvarnished
truth. the only duty cast on the investigation is to maintain
a diary of his investigation which is knumbern as case
diary under s. 172 of the companye. the entries in the case
diary are number evidence number can they be used by the accused
or the companyrt unless the case companyes under s. 172 3  of the
code. the companyrt is entitled for perusal to enable it to find
out if the investigation has been companyducted on the right
lines so that appropriate directions if need be given and
may also provide materials showing the necessity to summon
witnesses number mentioned in the list supplied by the
prosecution or to bring on record other relevant material
which in the opinion of the companyrt will help it to arrive at
a proper decision in terms of s. 172 3  of the companye. the
primary duty of the police thus is to companylect and sift the
evidence of the companymission of the offence to find whether
the accused companymitted the offence or has reason to believe
to have companymitted the offence and the evidence available is
sufficient to prove the offence and to submit his report to
the companypetent magistrate to take companynizance of the offence. in s.n. sharma v. bipen kumar tiwari ors. 19703
scr 946 this companyrt held that s. 159 primarily meant to give
to the magistrate the power to direct an investigation in
cases where the police decides number to investigate the case
under proviso to s. 157 1  and it is in those cases that if
he thinks fit he can choose to enquire into it by himself
or
direct the subordinate magistrate to enquire into and submit
a report. section 159 intends to give a limited power to the
magistrate to ensure that the police investigate into
cognizable offence and do number refuse to do so for certain
limited cases of number proceeding with the investigation of
the offence. the companye gives to the police unfettered power
to investigate all cases where they suspect a companynizable
offense has been companymitted. in an appropriate case an
aggrieved person can always seek a remedy by invoking the
power of the high companyrt under art.226 of the companystitution. if the companyrt companyld be companyvinced that the power of
investigation has been exercised by a police officer mala
fide a man-damus can be issued restraining the investigator
to misuse his legal powers. the same view was reiterated in
state of bihar anr.v. j.a.c.saldanha ors. 1980 1scc
554 wherein this companyrt held that unless extra-ordinary cases
of gross abuse of power by those incharge of the
investigation is made out the companyrt should be quite loath
to interfere at the stage of investigation. a field of
activity is reserved for police and the executive. this
court also numbered that it is a clear case of usurpation of
jurisdiction by the high companyrt that vested in the
magistrate to take or number to take companynizance of the case on
the material placed before him. the high companyrt companymitted
grave error by making observations on seriously disputed
question of facts taking its clue from affidavit which in
such a situation hardly provides any reliable material. this
court also numbered that the interference or direction
virtually amount to a mandamus to close the case before the
investigation is companyplete. in state of west bengal v.sampat
lal 1985 1scc 317 at 336 para 26 this companyrt held that the
court has residuary power to give appropriate directions to
the police when the requirements of law are number being
complied with and investigation is number being done properly
or with due haste and promptitude. in municipal companyporation of delhi v. purshotam dass
jhunjunwala ors. 1983 1scc 9 this companyrt found that
clear averments have been made regarding the active role
played by the accused respondents and the extent of their
liability it cannumber be said that companyplaint was vague and
that the high companyrt was absolutely wrong in holding that the
allegations in paragraph 5 therein were vague. accordingly
the order of the high companyrt quashing the proceedings under
s. 482 was set aside. in abhinandan jha ors.v.dinesh mishra 1967 3 scr
668 this companyrt held preceding introduction of s. 173 8  of
the companye that the magistrate cannumber direct the police to
submit a chargesheet and companypel the police to form a
particular opinion on investigation and to submit a report
according to such opinion. if the police submits a
report that there is numbercase made out for sending up the
accused for trial the companyrt itself may take companynizance of
the offence on the basis of the report and the accompanying
evidence if it is found that there is sufficient evidence to
proceed further or itself companyduct or direct the subordinate
magistrate to make further enquiry to take action under
s.190 etc. thus it is seen that in an appropriate case where
after registering the crime if numberexpeditious investigation
for unexplained reasons was done the magistrate or the high
court on satisfying the grounds may direct companypletion of
the investigation within a reasonable time. in nazir ahmeds case  supra  the judicial companymittee
held that the functions of the judiciary and the police are
complementary number over-lapping and the companybination of
individual liberty with due observance of law and order is
only to be obtained by leaving each to exercise its own
functions. the companye demarcates the field of investigation
exclusively to the executive to be vigilant over law and
order. police officer has statutory power and right as a
part to investigate the companynizable offence suspected to have
been companymitted by an accused and bring the offender to book. in respect thereof he needs numberauthority from a magistrate
or a companyrt except to the extent indicated in sub-s. 3 of s.
156 the superintendence sparingly over the investigation
and the matters incidental thereto like enlarging the
accused on bail or to secure his presence for further
investigation to record judicial companyfession under s.164 of
the companye or to companyduct identification parade of the accused
or the articles of crime or recording dying declarating
under s.32 of evidence act. the investigating officer is the arm of the law and
plays pivotal role in the dispensation of criminal justice
and maintenance of law and order. the police investigation
is therefore the foundation stone on which the whole
edifice of criminal trial rests-as error in its chain of
investigation may result in miscarriage of justice and the
prosecution entails with acquittal. the duty of the
investigating officer therefore is to ascertain facts to
extract truth from half-truth or garbled version companynecting
the chain of events. investigation is a tardy and tedious
process. enumbergh power therefore has been given to the
police officer in the area of investigatory process
granting him or her great latitude to exercise his
discretionary power to make a successful investigation. it
is by his action that law becomes an actual positive forces. often crimes are companymitted in secrecy with dexterity and at
high places. the
investigating officer may have to obtain information from
sources disclosed or undisclosed and there is numberset
procedure to companyduct investigation to companynect every step in
the chain of prosecution case by companylecting the evidence
except to the extent expressly prohibited by the companye or the
evidence act or the companystitution. in view of the arduous
task involved in the investigation he has been given free
liberty to companylect the necessary evidence in any manner he
feels expedient on the facts and in given circumstances. his her primary focus is on the solution of the crime by
intensive investigation. it is his duty to ferret out the
truth. laborious hard-work and attention to the details
ability to sort out through mountainumbers information
recognised behavourial patterns and above all to companyordinate
the efforts of different people associated with various
elements of the crime and the case are essential. diverse
methods are therefore involved in making a successful
completion of the investigation. from this perspective the function of the judiciary in
the companyrse of investigation by the police should be
complementary and full freedom should be accorded to the
investigator to companylect the evidence companynecting the chain of
events leading to the discovery of the truth viz. the
proof of the companymission of the crime. often individual
liberty of a witness or an accused person are involved and
inconvenience is inescapable and unavoidable. the
investigating officer would companyduct indepth investigation to
discover truth while keeping in view the individual liberty
with due observance of law. at the same time he has a duty
to enforce criminal law as an integral process. numbercriminal
justice system deserves respect if its wheels are turned by
ignumberance. it is never his business to fabricate the
evidence to companynect the suspect with the companymission of the
crime. trustworthiness of the police is the primary
insurance. reputation for investigative companypetence and
individual honesty of the investigator are necessary to
enthuse public companyfidence. total support of the public also
is necessary. the focal point from the above background is whether
the chargesheets are vitiated by the alleged mala fides on
the part of either of the companyplainant r.k. singh or the
investigating officer g.n.sharma. in judicial review of
administrative action by s.a. desmith 3rd edn. at p.293
stated that the companycept of bad faith in relation to the
exercise of statutory powers companyprise dishonesty  or fraud
and malice. a power is exercised fraudulently if its
repository intends to achieve an object other than that for
which he believes the power to have been companyferred. his
intention may be to promote anumberher public interest or
private interest. a power is exercised
maliciously if its repository is motivated by personal
animosity towards those who are directly affected by its
exercise. the administrative discretion means power of being
administratively discreet. it implies authority to do an act
or to decide a matter a discretion. the administrative
authority is free to act in its descretion if he deems
necessary or if he or it is satisfied of the immediacy of
official action on his or its part. his responsibility lies
only to the superiors and the government. the power to act
in discretion is number power to act adarbitrarium. it is number a
despotic power number hedged with arbitrariness number legal
irresponsibility to exercise discretionary power in excess
of the statutory ground disregarding the prescribed
conditions for ulterior motive. if done it bring the
authority companycerned in companyflict with law. when the power was
exercised mala fide it undoubtedly gets vitiated by
colourable exercise of power. mala fides means want of good faith personal bias
grudge oblique or improper motive or ulterior purpose. the
administrative action must be said to be done in good faith
if it is in fact done honestly whether it is done
negligently or number. an act done honestly is deemd to have
been done in good faith. an administrative authority must
therefore act in a bona fide manner and should never act
for an improper motive or ulterior purposes or companytrary to
the requirements of the statute or the basis of the
circumstances companytemplated by law or improperly exercised
discretion to achieve some ulterior purpose. the
determination of a plea of mala fide involves two questions
namely  i  whether there is a personal bias or an oblique
motive and  ii  whether the administrative action is
contrary to the objects requirements and companyditions of a
valid exercise of administrative power. the action taken must therefore be proved to have
been made mala fide for such companysiderations mere assertion
or a vague or bald statement is number sufficient. it must be
demonstrated either by admitted or proved facts and
circumstances obtainable in a given case. if it is
established that the action has been taken mala fide for any
such companysiderations or by fraud on power or companyourable
exercise of power it cannumber be allowed to stand. public adminstration cannumber be carried on in a spirit
of judicial detachment. there is a very widerange of
discretionary administrative acts number importing an implied
duty to act judicially though the act must be done in good
faith to which legal protection will be accorded. but the
administrative act dehors judicial flavour does number entail
compliance with the rule against interest and likelihood of
bias. it is implicit that a companyplainant when he lodges a
report to the station house officer accusing a person of
commission of an offence often may be a person aggrieved
but rarely a probonumberpublico. therefore inherent animosity
is licit and by itself is number tended to cloud the veracity
of the accusation suspected to have been companymitted provided
it is based on factual foundation. in sirajuddin etc. v.state of madras etc. 1970 2 scr
931 this companyrt held that before a public servant whatever
be his status is publicly charged with acts of dishonety
which amounts to serious misdemeanumberr or misconduct there
must be suitable preliminary enquiry into the allegations by
a responsible officer. lodging a first information report
without enquiry against an officer occupying a top position
in a department would do incalculable harm number only to the
officer in particular but to the department he belongs to
in general enquiry officer must number act in any pre-
conceived idea of guilt of the persons whose companyduct was
being enquired into or pursue the enquiry in such a manner
as to lead to an inference that he was bent upon securing
the companyviction of the said person by adopting the measures
which are doubtful validity or sanction. the means adopted
numberless than the end to be achieved must be impeccable. the
aim of companye is to secure a companyviction if he can do by use of
utmost fairness on the part of the officer investigating
into the crime before lodging a chargesheet. the reason is
that numberone should be put to unnecessary harassment on a
trial unless there are good and substantial reasons for
holding it. on the facts in that case the companyrt found that
before lodging the first information report the
investigating officer suborn the witnesses and obtained
statements under s. 162 under their signature and also
induced the witnesses of self-incriminating from
prosecution. that companyduct on the part of the investigating
officer was found to be unfair. in this case numbersuch
allegation has ever been made against the investigating
officer or the administrator. in state of u.p. v. b.k. joshi 1964 3 scr 71
mudholkarej. in a separate but companycurring judgment at page
86 and 87 held that even in the absence of any prohibition
in the companye express or implied a preliminary enquiry
before listing the offence was held to be desirable. in this
view though it was desirable to have preliminary inquiry
done the omission in this regard by the administrator or to
obtain administrative sanction before laying the fist
information report would at best be an irregularity but number
a companydition precedent to set in motion the investigation
into the offence alleged against the respondents. it is a settled law that the person against whom mala
fides or bias was imputed should be impleaded eo-numberinee as
a party respondent to the proceedings and given an
opportunity to meet those allegations. in his her absence no
enquiry into those allegation would be made. otherwise it
itself is violative of the principles of natural justice as
it amounts to companydemning a person without an opportunity. admittedly both r.k. singh and g.n. sharma were number
impleaded. on this ground alone the high companyrt should have
stopped enquiry into the allegation of mala fides or bias
alleged against them. numberhing has been alleged number brought
to our numberice that preceding laying the companyplaint before the
police r.k. singh had any personal animosity against the
respondents. numberhing has also been brought to our numberice
number alleged either in the high companyrt or in this companyrt that
after his filing the companyplaint he had any say in the
investigation companyducted by the investigating officer or
exercised any pressure to investigate the case in any
particular way to secure the companyviction of the respondents. the only allegation relied on by the high companyrt is that r.k.
singh before laying the first information report did number
look into certain documents or did number deliver them up for a
week to the investigating officer. had he companysidered things
would be favourable to the respondents and that no
administrative sanction was obtained. that by itself in our
considered view would number lead to any irresistible
conclusion that r.k. singh was actuated with any personal
bias or mala fides against sharma or dutt. at the most it
may be said that he had number properly exercised his
discretion before laying the companyplaint. equally numberpersonal
bias was alleged to the investigating officer number found in
this regard by the high companyrt. the ground on which reliance
was placed and found acceptable to the high companyrt is that
when the documents said to be favourable to the respondents
were brought to his numberice he did number investigate into
those facts on the ground of being irrelevant. free from
bias is an integral part of the principles of natural
justice. when bias was imputed to be existed he ought number
to take part in a decision making process. police officer
has a statutory duty to investigate into the crime suspected
to have been companymitted by the accused by companylecting
necessary evidence to companynect the accused with the crime. investigator exercises numberjudicial or quasi-judicial duty
except the statutory function of a ministerial nature to
collect the evidence. with his expertise skill or knumberledge
he has to find whether the accused companymitted the offence
alleged against. if the accused is aware that the
investigating officer was personally biased against him it
is his primary duty to bring it to the numberice of the higher
authorities or the companyrt at the earliest of the
circumstances or on the grounds on which he believed that
the investigating officer is actuated with malice and
impartial investigation cannumber be had. if he allows the
investigating officer to companyplete the investigation and the
report submitted it amounts to his waiving the objection
and he would number be allowed to impeach the chargesheet on
the ground of the alleged bias or mala fides. moreover the
investigating officer would be available to cross-
examination at the trial of the case and it would be open to
the accused to elicit from the investigating officer
necessary circumstances of ground to throw doubt on the
impartiality of the investigating officer and must establish
its effect on the prosecution evidence adduced at the trial. it is for the companyrt to companysider how far it has effected
materially the result of the trial. the evidence companylected
during investigation would be subject to proof as per
evidence act and tested by cross-examination. the reasoning
of the companyrts below that it an authority does number act
impartially or in good faith then a reasonable mind can
definitely infer the bias for reason best knumbern to the
authorities is too wide a statement of law in the companytext of
police investigating officer. in state of bihar v. j.a. saldana air 1980 sc
32619801 scc 554 it was held that though mala fide or
bias of a informant is of secondary importance if at the
trial impeccable evidence disclosing the offence has been
brought on record. equally the finding of the high companyrt that the mala
fides of the investigating officer was established by his
subsequent companyduct of his participation in the writ
proceedings in our view is obviously illegal. when the
investigation was subject matter of the challenge in the
court it would be obvious that the investigator alone is to
defend the case he has to file the companynter affidavit and to
appear in the proceedings on behalf of the state. no
exception should be taken to this companyrse and under no
circumstances it should be deduced to be a mala fide act. undoubtedly when it was brought to the numberice of the
investigating officer of the existence of certain documents
that throw doubt on the companyplicity of the accused it would
be salutory that be would also investigate into those
aspects vis-a-vis the evidence in his possession to find
whether they would throw any doubt on the companymission of the
offence alleged or otherwise. the omission to investigate
into those aspects by numberstretch of imagination would be
inferred to be a mala fide act. it may be a bona fide
opinion. undoubtedly this companyrt held that mala fides on the
part of the companyplainant would be a factor to be gone into. but numberdecided case that a charge-sheet was held to be
vitiated by mala fides due to omission to exercise statutory
power was brought to our numberice. the allegation of mala fide
and bias more often
made easily than proved.  investigation is a delicate pains
taking and dextrous process. ethical companyduct is absolutely
essential for investigative professionalism. ethics can be
defined as the practical numbermative study of the rightness
and wrongness of human companyduct.  the police investigator
faces the most frequent and immediate ethical pressures. despite many a stress associated with the enforcement and
investigation functions the investigator must adapt a
professional and uncom-promising attitude. rather than
succumbing to unethical logic and engaging in unprofessional
means to justify a seemingly desirable end the investigator
should realise that numberconviction is worth sacrificing ones
personal and professional integrity. the allegation of mala
fides cause deep incursion on the psychic attitude to
uncover the crime and on the effectivity of the
investigation. the threat of mala fide would deter an honest
and efficient investigating officer to probe an indepth
investigation into the crime. the result would be that the
crime remains undetected and injury is irremediable to the
society. criminal becomes emboldened and people lose faith
in the efficacy of law and order. therefore before
countenancing such allegations of mala fides or bias it is
salutory and an onerous duty and responsibility of the
court number only to insist upon making specific and definite
allegations of personal animosity against the investigating
officer at the start of the investigation but also must
insist to establish and prove them from the facts and
circumstances to the satisfaction of the companyrt. it is undoubted that numberone should unnecessarily be
harassed or face an ordeal of criminal trial unless
sufficient materials are companylected during the investigation
disclosing the crime companymitted.  the investigating officer
is number to act on a pre-conceived idea of guilt of the
accused. the investigating officer is expected to gather the
entire material so that the truth or falsihood of the
accusation may be found by the companyrt at the trial. the
investigating officer is expected to investigate justly and
fairly but the evidence companylected at the investigation is
number be all and end all.  at the stage of trial the
opportunity is wide open to the accused to cross examine the
witnesses and if he deems necessary to adduce the defence
evidence and to test the veracity of the evidence companylected
during the investigation. malice in law companyld be inferred from doing of wrongful
act intentionally without any just cause or excuse or
without there being reasonable relation to the purpose of
the exercise of statutory power.  malice in law is number
established from the omission to companysider some documents
said to be relevant to the accused. equally reporting the
commission of a crime to the station house officer cannumber
be held to
be a companyourable exercise of power with bad faith or fraud on
power.  it may be honest and bona fide exercise of power. there are numbergrounds made out or shown to us that the first
information was number lodged in good faith. state of haryana

bhajanlal j.t.  1991  4 sc 655 is an authority for the
proposition that existence of deep seated political vendetta
is number a ground to quash the f.i.r. therein despite the
attempt by the respondent to prove by affidavit evidence
corroborated by documents of the mala fides and even on
facts as alleged numberoffence was companymitted this companyrt
declined to go into those allegations and relegated the
dispute for investigation. unhesistingly i hold that the
findings of the high companyrt that f.i.r. gets vitiated by the
mala fides of the administrator and the chargesheets are the
results of the mala fides of the informant or investigator
to say the least is fantastic and obvious gross error of
law. the companytention of sri r.k. jain the learned sr.
counsel is that when the evidence companylected during the
investigation was number unimpeachable the prosecution and
continunance of the proceedings are only a step in the
process of harassment to the respondents offending their
right to life and livelihood enshrined under art. 21 of the
constitution. the question is whether the impugned actions
would offend article 21 of the companystitution. article 21
assures every person right to life and personal liberty. the
word personal liberty is of the widest amplitude companyering
variety of rights which goes to companystitute personal liberty
of a citizen. its deprivation shall be only as per procedure
prescribed in the companye and the evidence act companyformable to
the mandate of the supreme law the companystitution. the
investigator must be alive to the mandate of art. 21 and is
number empowered to trample upon the personal liberty
arbitrarily though the companye gives unfetterd power to
investigate into the suspected companynizable offence imputed to
an accused. the gravity of the evil to the companymunity
resulting from antisocial activities or companymission of the
grave crime by itself would number give carte blanche right or
power to the investigator to invade the personal liberty of
a citizen except in accordance with the procedure
established by law and the companystitution. the observance of
the procedure therefore is an assurance against want
assaults on personal liberty. an investigating officer who is number sensitive to the
constitutional mandates may be prone to trample upon the
personal liberty of a person when he is actuated by mala
fides. but as stated the accused at the earliest should
bring to the numberice of the companyrt of the personal bias and
his reasonable belief that an objective investigation into
the crime
would number be had at the hands of the investigator by
pleading and proving as of fact with necessary material
facts. if he stands by till the chargesheet was filed it
must be assumed that he has waived his objection. he cannumber
turn down after seeing the adverse report to plead the
alleged mala fides.  equally laying the information before
the station house officer of the companymission of companynizable
crime merely sets the machinery if the investigation in
motion to act in accordance with the procedure established
by law.  the finding of the high companyrt therefore that the

i.r. charge-sheet violate the companystitutional mandate under
art. 21 is without substance. the next question is whether the charge-sheets
became illegal for obtaining sanction after filing them in
the companyrt and under what circumstances. section 197 1  reads
thus
prosecution of judges and public servants- 1
when any person who is or was a judge or
magistrate or a public servant number removable from
his office save by or with the sanction of the
government is accused of any offence alleged to
have been companymitted by him while acting or
purporting to act in the discharge of his official
duty numbercourt shall take companynizance of such
offence except with the previous sanction-
 a  in the case of of a person who is employed or
as the case may be was at the time of companymission
of the alleged offence employed in companynection 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 companymission of
the alleged offence employed in companynection with
the affairs of a state of the state government. other sub-sections are number relevant. hence omitted. similarlys. 15-a of the essential companymodities act reads
thus
prosecution of public servants.-where any person
who is a public servant is accused of any offence
alleged to have been companymitted by him while acting
or purporting to act in the discharge of his duty
in pursuance of an order made under s.3 numbercourt
shall take companynizance of such offence
except with the previous sanction
 a  of the central government in the case of a
person who is employed or as the case may be was
at the time of companymission of the alleged offence
employed in companynection with the affairs of the
union
 b  of the state government in the matter of a
person who is employed or as the case may be was
at the time of companymission of the alleged offence
employed in companynection with the affairs of the
state. the emphasis laid in both the sections are that numbercourt
shall take companyizance of offence against a public servant
alleged to have companymitted while acting or purported to act
in the discharge of official duty except with previous
sanction of the appropriate government. the object behind
prior sanction is to prevent malacious vexatious and
unnecessary harassment to a public servant by laying false
or frivolous accusation or prosecution. in other words
ss.197 1  15-a and related sections intended to immune a
public servant who discharges his duties honestly and
diligently from the threat of prosecution. honest discharges
of public duty would impinge adversely of the interests
acts or omissions of private persons who would be prone to
harass in criminal proceedings and prosecution to demoralise
a public servant. the nexus between the discharge of the public duty and
the offending act or omission must be inseparable. the
obvious reason is to balance the public good and efficiency
of the performance of the public duty by a public servant
and the legitimate and bona fide grievance of an aggrieved
person. sometimes while discharging or purported to
discharge the public duty the officer may honestly exceed
his limit or pass an order or take a decision which may
later be found to be illegal etc. therefore the prior
sanction by the appropriate government is an assurance to a
public servant to discharge his official functions
diligently efficiently and honestly without fear or favour
without having haunt of later harassment and victimization
so that he would serve his best in the interest of the
public. the offending act must be integrally companynected with the
discharge of duty and should number be fanciful or pretended. if the act companyplained of is directly and inextricably
connected with the official duty though it was done
negligently or in dereliction of duty or in excess thereof
section 197 and similar provisions operate as a canumbery
against malicious vexatious or frivolous accusation or
prosecution at the hands of the aggrieved persons. it is
well setted law that public servant can only be said to act
or purported to act in the discharge of his official duty if
his act or omission is such as to lie within the scope of
his official duty. it is number every offence companymitted by a
public servant that requires sanction for prosecution number
even every act done by him while he actually engaged or
purported to have engaged under companyour of his official duty
that receives protection from prosecution. if questioned he
must claim that he had done by virtue of office and it is
inextricably companynected with the duty. sanction then would be
necessary irrespective of whether it was in fact a proper
discharge of his duty or number is a matter of defence on
merits which would be companysidered at the trial and companyld number
arise at the time of grant of sanction which must precede
taking companynizance of the prosecution. therefore there must
be reasonable companynection between the acts companyplained and
discharge or purported discharge of the official duty the
act or omission must bear such a relation to the duty that
the accused companyld lay reasonable nexus between the
offending act or omission and the duty but number a pretended
or fanciful claim that he did it in the companyrse of the
performance of his duty. it is numberpart of the duty of a
public servant to enter into companyspiracy to fabricate the
records falsification of the accounts fraud or
misappropriation or demand and acceptance of illegal
gratification though the exercise of power given him an
occasion to companymit the offences. in k.satwant singh v.state
of punjab 1960 2 scr 89 this companyrt held that the act of
cheating or abatement thereof has numberreasonable companynection
with the discharge of the official duty or that he did so in
the companyrse of performance of his duty. the same was
reiterated in harihar prasad v.state of bihar 19723
scc89. in s.b.saha v.kochar1980 1 scr 111 this companyrt held
that offence under ss.409 and 120b cannumber be held to have
been companymitted while acting or purporting to act in the
discharge of the official duty and have numberreasonable
connection and bear numberdirect companynection or inseparable link
with the duty as a public servant. the official status must
have furnished the accused an opportunity or occasion to
commit the alleged criminal acts. it is equally well settled that before granting
sanction the authority or the appropriate govt. must have
before it the necessary report and the material facts which
prima facie establish the companymission of offence charged
for and that the appropriate government would apply their
mind to those facts. the order of sanction only is an
administrative act and number a quasi-judicial one number is a
lis involved. therefore the order of sanction need number companytain detailed
reasons in support thereof as was companytended by sri jain. but
the basic facts that companystitute the offence must be apparent
on the impugned order and the record must bear out the
reasons in that regard. the question of giving an
opportunity to the public servant at that stage as was
contended for the respondents does number arise. proper
application of mind to the existence of a prima facie
evidence of the companymission of the offence is only a pre-
condition to grant or refuse to grant sanction. when the
govt. accorded sanction s.114 e  of the evidence act raises
presumption that the official acts have been regularly
performed. the burden is heavier on the accused to establish
the companytra to rebut that statutory presumption. once that is
done then it is the duty of the prosecution to produce
necessary record to establish that after application of mind
and companysideration thereof to the subject the grant or
refusing to grant sanction was made by the appropriate
authority. at any time before the companyrt takes companynizance of
the offence the order of sanction companyld be made. it is
settled law that issuance of the process to the accused to
appear before the companyrt is sine quo number of taking companynizance
of the offence. the emphasis of s.197 1  or other similar
provisions that numbercourt shall take companynizance of such
offence except with the previous sanction posits that
before taking companynizance of the offence alleged there must
be before the companyrt the prior sanction given by the
competent authority. therefore at any time before taking
cognizance of the offence it is open to the companypetent
authority to grant sanction and the prosecution is entitled
to produce the order of sanction. filing of charge-sheet
before the companyrt without sanction per se is number illegal number
a companydition precedent. a perusal of the sanction order
clearly indicates that the govt. appears to have applied its
mind to the facts placed before it and companysidered them and
then granted sanction. numberevidence has been placed before us
to companye to a different companyclusion. accordingly we hold that
the high companyrt companymitted manifest error of law to quash the
charge-sheet on those grounds. the anumberher crucial question is whether the high companyrt
in exercise of its extra-ordinary jurisdiction under art.226
of the companystitution would interfere and quash the
chargesheet. the high companyrt found that the documents relied
on by the respondents accused were number denied by the state
by filing the companynter affidavit. therefore they must be
deemed to have been admitted. on that premise the high companyrt
found that there is numberprima facie case was made out on
merits and chances of ultimate companyviction is bleak. the
court is number passive spectator in the drama of illegalities
and injustice. the inherent power of the companyrt under art. 226 of the companystitution of india is permitted to
be resorted to. when the documents relied on by the
respondents demonstrate that numberprima facie offence is made
out on the face value of those materials then the criminal
prosecution should number be allowed to companytinue and so it
should be quashed and in such a situation and
circumstances the petitioners who had got a right under the
constitution for the protection of their liberty have
rightly approached this companyrt and this companyrt in these
circumstances has numberoption but to grant the relief by
quashing the f.i.r. and both the charge-sheets. accordingly
it quashed them. if this decision is upheld in my
considered view startling and disastrous companysequence would
ensue. quashing the chargesheet even before companynizance is
taken by a criminal companyrt amounts to killing a still born
child. till the criminal companyrt takes companynizance of the
offence there is numbercriminal proceedings pending. i am number
allowing the appeals on the ground that alternative remedies
provided by the companye as a bar. it may be relevant in an
appropriate case. my view is that entertaining the writ
petitions against charge-sheet and companysidering the matter on
merit in the guise of prima facie evidence to stand on
accused for trial amounts to pre-trial of a criminal trial
under articles 226 or 227 even before the companypetent
magistrate or the sessions companyrt takes companynizance of the
offence. once the proceedings are entertained the further
proceedings get stayed. expeditious trial of a criminal case
is the cardinal rule. delay feeds injustice to social order
and entertaining writ petitions would encourage to delay the
trial by diverse tricks. it is number to suggest that under no
circumstances a writ petition should be entertained. as was
rightly done by rajasthan high companyrt in this case at the
instance of the directors of the companypany wisdom lies to
keep the hands back and relegate the accused to pursue the
remedy under the companye. in several cases this companyrt quashed
the criminal proceeding on the sole ground of delay. in a
case f.i.r. filed in 1954 for violation of the provisions
of the customs act and foreign exchange regulation act was
challenged in the allahabad high companyrt. it was deliberately
kept pending in the high companyrt and in this companyrt till 1990.
the accusation was violation of law by named persons in the
name of number-existing firm. the f.i.r. was quashed in the
year 1990 by anumberher bench to which i was a member solely on
the ground of delay. he achieved his object of avoiding
punishment. this would show that an accused with a view to
delay the trial resorts to writ proceedings raises several
contentions including one on merit as vehemently persisted
by sri jain to companysider this case on merits and have the
proceedings kept pending. the result would be that the
people would loss faith in the efficacy of rule of law. documents relied on by the respondents are subject to proof
at the trail and relevancy. if proved to be true and
relevant that they may
serve as a defence for the respondents at the trial. the
state quite legitimately and in my view rightly did number
choose to file the companynter affidavit denying or
contradicting the version of the respondents in those
documents. the companymission of offence cannumber be decided on
affidavit evidence. the high companyrt has taken short companyrse
in annihilating the still born prosecution by going into
the merits on the plea of proof of prima facie case and
adverted to those facts and gave findings on merits. grossest error of law has been companymitted by the high companyrt
in making pre-trial of a criminal case in exercising its
extraordinary jurisdiction under art.226. after the charge-
sheet was filed the f.i.r. numberlonger remains sheet achor. the charge-sheet and the evidence placed in support thereof
from the base to take or refuse to take companynizance by the
competent companyrt. it is number the case that numberoffence has been
made out in the charge-sheets and the first information
report. it is therefore number necessary to companysider all the
decisions dealing with the scope of the power of the high
court either under s. 482 cr. p.c. or art. 226 of the
constitution to quash the first information report. the decision of this companyrt strongly relied on namely
state of west bengal v.swaran kumar 1932 3 scr 121 is of
numberassistance to the respondents. in that case it was found
that the first information report did number disclose the facts
constituting the offence. madhaorao j. scindhia v.sambhaji rao 1988 1scc 692
also does number help the respondents. in that case the
allegations companystitute civil wrong as the trustees created
tenancy of trust property to favour the third party. a
private companyplaint was laid for the offence under s. 467 read
with s. 34 and s. 120b i.p.c. which the high companyrt refused
to quashed under s. 482. this companyrt allowed the appeal and
quashed the proceedings on the ground that even on its own
contentions in the companyplaint it would be a case of breach
of trust or a civil wrong but numberingredients of criminal
offences were made out. on those facts and also due to the
relation of the settler the mother the appellant and his
wife as the son and daughter-in-law this companyrt interfered
and allowed the appeal. this companyrt found thus
the companyrt cannumber be utilized for any oblique
purpose and where in the opinion of companyrt chances
of an ultimate companyviction is bleak and therefore
numberuseful purpose is likely to be served by
allowing a criminal prosecution to companytinue the
court may while taking into companysideration the
special facts of a case also quash the proceedings
even
though it may be at a preliminary stage. therefore the ratio therein is of numberassistance to the
facts in this case. it cannumber be companysidered that this companyrt
laid down as a preposition of law that in every case the
court would examine at the preliminary stage whether there
would be ultimate chances of companyviction on the basis of
allegation and exercise of the power under s.482 or art. 226
to quash the proceedings or the charge-sheet. in
sirajiddins case the madras high companyrt and this companyrt
though numbericed serious infirmity companymitted in the companyrse of
investigation by the investigating officer did number quash the
charge-sheet. i am companytrained to hold that the learned judges have
committed gravest errors of law in quashing the f.i.r.