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State of Rajasthan Vs. Laxman Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 303 of 1973
Judge
Reported in1974WLN(UC)61
AppellantState of Rajasthan
RespondentLaxman Singh and anr.
DispositionAppeal allowed
Cases Referred and Public Prosecutor v. Shaik Sheriff
Excerpt:
.....the object of criminal conspiracy which was to cheat the state government and thereby commit an offence punishable under section 420 i.p.c. and as such the provisions of section 196a, cr.p.c. cannot be invoked. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is..........and there by to obtain illegal pecuniary advantage for you ail. you have thereby committed an offence punishable under section 120b of the indian penal code.2. that in pursuance of the aforesaid conspiracy, you alongwith mahesh chandra sharma and mr. ram prakash in between the aforesaid period, by illegal or corrupt means, obtained illegal advantage of rs. 3,900/- by preparing or having got prepared false bills and a.c. bills, by accepting bogus bills and by falsifying or having got falsified the records of the wireless department, jaipur with regard to the conversion of 60 b. c. 375 e transmitter sets which were not in existence unconverted at that time in the wireless department. you have thereby comitted an offence punishable under section 5(2) of the prevention of comuption act.....
Judgment:

J.P. Jain, J.

1. This is an appeal by the State of Rajasthan against an order of the Special Judge for Rajasthan, Jaipur City, whereby the proceedings in the special criminal case No. 13/1971 (6/1968) against the three respondents were quashed and they were discharged for want of sanction Under Section 196A, Cr.P.C.

2. This case has a chequered history but it is not necessary for us to trace it from the date the proceedings originated. It is enough to state the facts in short and from the time the three respondents, (1) Shree Laxman Singh Deputy Superintendent of Police, (Wireless Deptt.) Jaipur; (2) Shri Mahesh Chandra Sharma, Assistant Inspector Wireless Departrmnt, Jaipur during the relevant period, and (3) Shri Ram Prakash Agarwal Proprietor, Messrs Radionics, M.I. Road, Jaipur were put up on trial before the Special Judge Jaipur City, Jaipur for various offences. The learned Special Judge, Jaipur City by his elaborate order dated 24-9-68 examined the allegations made in the charge-sheet submitted by the police against the three accused and framed charges against them. The charge framed against Laxman Singh is in the following terms:

I.S.N. Modi, Special Judge, Jaipur City, do hereby charge you, Laxman Singh son of Shri Man Singh r/o Lalkothi, Jaipur as follows:

1. That you, the then Dy. S.P. Wireless Deptt, while acting as Superintendent of Police, Wireless Deptt Jaipur, were a party to a criminal conspiracy with Shri Mahesh Chandra Sharma, I/C-Store, Wireless Deptt Jatpur and Ram Prakash s/o Shyam Sander Agarwal, Proprietor of M/S Radionics, Jaipur as having agreed to do illegal act for obtaining illegal pecuniary advantage for you all to the tune of Rs. 3.900/- by illegal and corrupt means in between the period 14-6-63 to 26-10-63 and the mode adopted by you all was to accept false bills without quotations, prepare false bills and records and verify such bills with regard to conversion at 60 B.C. 375 E Transmitter sees from 24-28 volts to 12 volts with an ulterior motive to cheat the Government of Rajasthan and there by to obtain illegal pecuniary advantage for you ail. You have thereby committed an offence punishable Under Section 120B of the Indian Penal Code.

2. That in pursuance of the aforesaid conspiracy, you alongwith Mahesh Chandra Sharma and Mr. Ram Prakash in between the aforesaid period, by illegal or corrupt means, obtained illegal advantage of Rs. 3,900/- by preparing or having got prepared false bills and A.C. bills, by accepting bogus bills and by falsifying or having got falsified the records of the Wireless Department, Jaipur with regard to the conversion of 60 B. C. 375 E Transmitter sets which were not in existence unconverted at that time in the Wireless Department. You have thereby comitted an offence punishable Under Section 5(2) of the Prevention of Comuption Act read with Section 120B, Indian Penal Code.

3. That in pursuance of the aforesaid conspiracy you also cheated the Government to the tune of Rs. 3,900/- as aforesaid by falsely withdrawing the conversion charges for 60 Transmitter sets which as such were not in stock of the Wireless Department and thereby fraudulently obtained illegal advantage. You have thereby committed an offence Under Section 420 read with Section 120B, I.P.C.

4. That you in pursuance of the aforesaid criminal conspiracy, forged documents or got the same forged belonging to the Wireless Department by splitting the bills and manipulating the records intending that they shall be used for the purpose of cheating with an ulterior motive of obtaining illegal pecuniary advantage for you all and thereby committed an offence punishable Under Section 468 read with Section 120B, Indian Penal Code.

5. That you in pursuance of the aforsaid criminal conspiracy fraudulently or dishonestly managed to obtain false bills for conversion of 60 C.B. 375E Transmitter sets from Shri Ram Prakaih and used them as genuine which you knew or had reason to believe at time you used them to be a forged document & that you thereby committed an offence punishable Under Section 471 read with Section 120B, I.P.C.

6. That you in pursuance of the said criminal conspiracy working as Superintendent of Police, Wireless Department' wilfully and with intent to defraud, alter, the A.C. Bills or got them altered into another records of the Wireless Department in order to obtain illegal advantage of Rs. 3900/- and thereby committed an offence Under Section 477A, read with Section 120B, I.P.C.

And since all the aforesaid offences are within my cognizance. I hereby direct that you be tried of the said offences by me.

3. Shri Mahesh Chandra Sharma was similarly charge-sheeted. The charge framed against Shri Ram Prakash Agrawal was slightly different. He was charged Under Section 109 I.P.C. read with Section 6(2) of the Prevention of Corruption Act along with 120B of the I.P.C. As regards the offence punishable Under Section 477A, read with 120B of the I.P.C as well, he was charged for abetment Under Section 109 I.P.C. only. Another charge that was framed against him was for offence punishable Under Section 165A, I.P.C. for having given a Philta radio to Shri Mahesh Chandra Sharma as an illegal gratification. All the respondents pleaded not guilty on 21-9-68. After some prosecution evidence was recorded, an application was submitted on behalf of the accused respondents that the proceedings against them could not be initiated in as much as sanction was not obtained within the meaning of Section 196A. Cr. P.C. and it was prayed that they be quashed. The Special Judge heard the parties on that application and passed the impuged order on 11-12-1972. He held that the offence Under Section 5(2) is not a cognizable offence. He referred to an unreported decision of a learned Single Judge of this Court in S. B. Criminal Appeals No. 127 and 128 of 1968-Shyam Sunder and Major O.P. Singh v. State of Rajasthan. The opinion of the learned Single Judge was based on a decision of the Assam & Nagaland High Court in Lt. Col. G.K. Apte and Ors. v. Union of India and Ors. AIR 1970 Assam & Nagaland 43 Placing reliance on these authorities the learned Special Judge held that the offence punishable Under Section 5(2) of the Prevention of Corruption Act is a noncognizable offence. He was also faced with another Single Bench decision of this Court in Taj Khan v. The State But the learned Special Judge resolved the situation on the ground that the decision in Shyam Suder & Major O. P. Singh's case was a later pronouncemont of this Court and as such he preferred to place reliance on that decision. Offences Under Sections 468, 471 and 477A it was observed, were admittedly non cognizable cases. While admitting that the offence Under Section 420 with which the accused persons were charged, was a cognizable offence & punishable with more than two years' imprisonment, he observed that fair trial of the offence would not be possible as the facts of the case were ineer-mingled. He was of the opinion that the case attracted the application of Section 196A, Cr.P.C. and in the circumstances of the case sanction was necessary before proceedings against these accused persons could be initiated for the offences with which they were charged.

4. The respondents have not put in appearnce in this Court inspite of notice. We have heard Shri B.C. Chatterjee for the State.

5. The relevant part of Section 196A of the Code of Criminal Procecure is extracted below:

Section 196 A Prosecution of certain classes of criminal conspiracy. No Court shall take cognizance of the offence of criminal couspiracy punishable Under Section 120B of the Indian Penal Code.

(1) ...

(2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a congizable offence not punishable with death, (imprisonment for life) or rigorous imprisonment for a term of two years or upwards, unless the State Government, or a Chief Presidency Magistrate or District Magistrate empowered in this behalf in by the State Government, has, by order in writing consented to the initiation of the proceedings:

Provided that where the criminal conspiracy is one to which the provisions of Sub-section (4) of Section 195 apply no such consent shall be necessary.

From the perusal of the sub Section (2) it is abundantly clear that the jurisdiction of the court to take cognizance of an offence of conspiracy punishable Order Section 120B depends according to the terms of the Section upon the object of the conspiracy. If the object is to commit a non-cognizable offence, undoubtedly sanction under that Section is essential to give jurisdiction to the court the object of conspiracy has to be determined at the initial stage not only by reference to the Sections of the penal enactment referred to in the complaint but also upon the facts narrated therein and the evidence tendered before the Magistrate. There is recognised difference between the object of a conspiracy and the means adopted to realise the object. The Sub-section will be equally attracted if the object is to commit a cognizable offence if it is not punithable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards. The Section will have no application to a case where the (sic) is for committing cognizable offences but punishable for an imprisonment of less than two years. But there is no doubt that where the commission of non-cognizable offence is merely a means to commit a cognizable offence sanction under Sub-section (2) of Section 196A, Cr.P.C. will not be necessary.

6. In the present case as it would appear from reading the charge reproduced above that the object of the criminal conspiracy was to cheat the Government and to obtain illegal pecuniary advantage to the tune of Rs. 3,900/- and with a view to achieve that object illegal and corrupt means viz. forgery was committed; false bills were prepared, and the records were manipulated. In short, the object of the conspiracy was to cheat the Government that is to commit the offence Under Section 420 I.P.C. & to serve that end offences Under Sections 468, 471, and 477A, I.P.C. were committed by the accused persons. Therefore, in terms of Sub-section (2) of Section 196A, it is offence Under Section 420 I.P.C. that being the object of criminal conspiracy which would determine applicability of the Section.

7. As the offence punishable Under Section 420 I.P.C. is also a criminal misconduct when committed by a public servant it is also covered by Section 6(2) of the Prevention of Corruption Act. The main controversy before the learned Special Judge was to determine whether the offence punishable Under Section 5(2) of the Prevention of Corruption Act is a cognizable offence. The learned Special Judge on the authority of the decision in Shyam Sunder's case held that the offence Under Section 5(2) is a non-cognizable offence. As to what is cognizable offence and what is non-cognizable offence, Section 4(g) and 4(n), Cr.P.C. may be reproduced below:

4. (g) Commissioner of Police' includes a Deputy Commissioner of Police:'

(n)-'non-cognizable offence' means an offence for, & non cognizable case' means a case in, which a police-officer, within or without a presidency town, may not arrest without warrant.'

8. Reference to Schedule II appended to the Code of Criminal Procedure will show that the offence Under Section 5(2), Prevention of Corruption Act is a cognizable offence as the sentence for that offence may extend to seven years.

9. We need hardly refer to the decision of the learned Single Judge in Shyam Sunder's case and that of G. K. Apte's case decided by Assam and Nagaland High Court The learned Single Judge placed reliance on Apte's case and that decision by Assam and Nagaland High Court has been reversed in appeal by the Supreme Court in Union of India v. I.C. Lala etc. AIR 1973 SC 2205, Alagiriswami, J who spoke for the court observed as follows:

We are, therefore, clearly of opinion that the offences Under Sections 161, 166 and 165A of the Indian Penal Code and Section 5 of the Prevention of Corruption Act are cognizable if in vestigated by a Deputy Superintendent of Police and non cogmzable when investigated by an Inspector of Police Nor can there be any question of those offences being cognizable if they are investigated Under Section 156 of the Criminal P.C. but rot when investigated in accordance with the provisions of Section 5A, of the Prevention of Corruption Act. The question therefore of the need for a sanction Under Section 196-A does not arise.

Their Lordships pointed out:

Cognizable offence is defined in Section 4(1)(f ) of the Code of Criminal Procedure as an offence for which a police officer within or without the presidency 'owns, may in accordance with the second schedule or under any law for the time being in force arrest without warrant. The argument which appealed to the learned Judge of the High Court was that as Under Section 5 A of the Prevention of Corruption Act no officer below the rank of Deputy Superintendent of Police could investigate or make any arrest without a warrant in respect of offence punishable Under Sections 161, 165 and 165A I.P.C. and Section 5 of the Prevention of Corruption Act, they were not offences for which any officer can (sic) without warrant and therefore they are not cogrizable offences The same argument was repeated before this Court. Mr Tarkunde emphasising that 'a police officer' means 'any police officer' and any police officer can not, Under Section 5-A of the Corruption Act, arrest without warrant but only officers of and above the rank of Deputy Superintendent, the offences mentioned in that Section are non-cognizable offences. If we pursue the same line of argument and look at the definition of non-cognizable offence (n) which defines non-cognizable offence as an offence for which a police officer, within or without a presidency town, may not arrest without warrant, it might mean that as these are cases where a police officer of the rank of Dy Superintendent and above can arrest without warrant these are not non-cognizable offence either. How can there be a case which is neither cognizable nor non-cognizable? It was sought to be argued that these offences would be cognizable offences when they are investigated by the Deputy Superintendents of Police and superior officers & non-cognizable when they are investigated by officers below the rank of Deputy Superintendents We fail to see how an offence would be cognizable in certain circumstances and non-cognizable in certain other circumstances. The logical consequence of accepting this argument would be that if the offences are investigated by Deputy Superintendents of Police and superior officers no sanction Under Section 196A(2) would be necessary but sanction would be necessary if they are investigated by officers below the rank of Deputy Superintendents of Police. One supposes the argument also implies that the fact that an officer below the rank of a Deputy Superintendent is authorised by a Magistrate under the provisions of Section 5-A would not make any difference to 'his situation. We do not consider that this is a reasonable interpretation to place.

Their Lordships again pointed out that.

Under Schedule II of the Code of Criminal Procedure offences Under Sections 161 to 165 of the Indian Penal Code are shown as cognizable offences At the end of that Schedule offences punishable with death, imprisonment for life or imprisonment for 7 years and upwards are also shown is cognizable offences. Under Section 5(2) of the Prevention of Corruption Act the sentence may extend co seven years. Therefore, an offence Under Section 5 of the Prevention of Corruption Act is according to the provisions of Schedule II to the Code of Criminal Procedure a cognizable offence. Therefore, the mere fact that under the Prevention of Corruption Act certain restrictions are placed as to the officers who are competent investigate into offences mentioned in Section 5-A would not make those offences any the less cognizable offences The words 'not with standing anything contained in the Code of Criminal Procedure' found at the beginning of Section 5A(1) merely carve out a limited exemption from the provisions of the Code of Criminal Procedure in so far as they limit the class of persons who are competent to investigate into offences mentioned in the Section and to arrest without a warrant It does not mean that the whole of the Code of Criminal Procedure including Schedule II there of is made inapplicable. Under Section 5 of the Code of Criminal Procedure all offences under the Indian Penal Code shall be investigated, inquired into, (sic) and otherwise dealt with according to the provisions there in contained. Also, all offences under any other law (which would include the Prevention of Corruption Act) shall be investigated, inquired into, tried and otherwise dealt with according to the Same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

10. It might as well be noticed here that their Lordships of the Supreme Court approved the decision of this Court in Taj Khan v. The State and the view taken by Bombay and Andhra Pradesh High Courts in Ram Rijhumal Kriplani v. The State : AIR1958Bom125 and Public Prosecutor v. Shaik Sheriff : AIR1965AP372 in which it was held that the offence punishable Under Section 5(2) is a cognizable offence. We are, therefore, clearly of the opinion that the offence Under Section 5(2) with which the three accused respondents were charged, is a cognizable offence and the learned Special Judge is not correct. The offences Under Sections 420 and 165A, I.P.C. are cognizable offences and they are punishable for more than two year's imprisonment of either description.

11. The offence punishable Under Sections 468, 471 and 477A, I.P.C. are undoubtedly non-cognizable offences but we have pointed out above that they are alleged to have been committed as a means to cheat the State Government and thereby commit an offence punishable Under Section 420 I.P.C. and as such the provisions of Section 196A, Cr.P.C. cannot be invoked.

12. We have also considered the aspect that the accused persons are charged both for cognizable and non-cognizable offences. There is no doubt that they can be tried together. Reference may be made to (sic) Singh andanother v. The State of Rajasthan (1968) 2 SCJ 359 wherein their Lordships of the Supreme Court held:

It if necessary to keep in mind the difference between the object of a conspiracy and the means adopted for realising that object. Even if the object of the conspiracy viz, of cheating is sought to be attained by resort to non cognizable offence, as in the case before us, sanction Under Section 196 - A of the Code is not necessary.

13. In that case the accused were being tried Under Sections 466, 467 as well, along with Sections 420B, I.P.C. Their Lordships held that sanction Under Section 196A, Cr. P.C. was not necessary to try the cognizable offences Under Section 420 I.P.C. read with 120-B and the allied offences with which the accused were charged namely Under Section 120B read with 467, 471 I.P.C. as they were merely steps taken for the purpose of offecting the main object of the conspiracy.

14. As a result of the fore-going discussion we hold that Section 196-A, Cr.P.C is not attracted on facts and circumstances of the case and it is not necessary for the prosecution to obtain the consent of the State Government to initiate proceedings against the accused respondents.

15. Accordingly the appeal is allowed. The judgment dated 11th December, 1972, is set aside. The case will go back to the Special Judge for Rajasthan Jaipur City, who will proceed with the case according to law with the direction that he will dispose of the case as expeditiously as possible in view of the fact that the case has become very old.


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