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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MMO No. 133 of 2015.
Reserved on : 30th May, 2018.
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Decided on : 11th June, 2018.
Shri R.K. Garg .....Petitioner.
Versus
Labour Enforcement Officer and another ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. N. K. Sood, Senior Advocate with Mr. Aman Sood, Advocate.
For the Respondents: Mr. Vir Bahadur, Advocate.
Sureshwar Thakur, Judge.
The instant petition is directed, against, the orders, borne in Annexure PG, rendered by the learned Judicial Magistrate 1st Class, Court No.4, Mandi, wherein, he directed the issuance of summons, upon, the petitioner herein, for alleged violations, by him, of the 1 Whether reporters of the local papers may be allowed to see the judgment?
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apposite provisions, borne in, the Contract Labour (R&A) Act 1970, and, Contract Labour (R&A) Central Rules, 1971.
2. The learned counsel appearing, for the petitioner herein, has with much fervor, and, vehemence contended that, the summoning orders are legally infirm, given, the learned Magistrate, within, the statutory contemplation(s), borne in, the provisions of Section 204 of the Cr.P.C., provisions whereof stand extracted hereinafter:-
"204. Issue of process.-(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-
(a) a summons- case, he shall issue his summons for the attendance of the accused, or
(b) a warrant- case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.::: Downloaded on - 14/06/2018 23:00:12 :::HCHP
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(2) No summons or warrant shall be issued against the .
accused under sub- section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process- fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87."
hence issuing summons, for, ensuring the presence, of the accused before him, whereupon, has also obviously, within, the domain of sub-section (1) thereof, hence taken cognizance, upon the offences, borne in the apposite complaint, (i) legal consequence whereof, being rather qua hence evidently, at the apt stage contemporaneous, to his hence taking cognizance, and, thereafter issuing summons, there being no peremptory meteing, of, any valid prosecution sanction, by the ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...4...
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sanctioning authority, especially in adherence, of the statutory fiat, encapsulated in Section 197 of the Cr.P.C.,
(iii) and, with courts concerned, being barred, to take cognizance, upon, the apposite offences, constituted, in the complaint, unless prior thereto, the apposite r to mandatory sanction, for, hence prosecuting the accused, rather is meted, by the designated authority. (iv) He further submits, that with, the offence embodied in the complaint, being purportedly committed, by the petitioner, while his discharging, his official or public duties, thereupon, the meteing, of, the mandatory sanction, within, the ambit of Section 197 of the Cr.P.C., by the designated authority, for hence, any, valid cognizance being taken, upon, the complaint, by the learned magistrate concerned, was an utmost ordained legal necessity, (v) whereas non meteing thereof, or non existence thereof, at, the relevant stage, renders both, the taking of cognizance upon the complaint, by the ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...5...
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learned Magistrate concerned, AND, also his order, directing, the issuance of summons upon the petitioner, to be legally stained.
3. The learned counsel appearing for the respondents, does not, contest, that the allegations complaint, appertaining r to embodied, against the petitioner herein, in the apposite to the petitioner's hence discharging his official duties or public duties, thereupon, prima facie, it was a peremptory obligation hence cast, upon, the complainant, to alongwith the complaint, rather append the apt sanction, for prosecuting the petitioner,
(i) as thereupon, the mandate, of, Section 197 of the Cr.P.C., would stood accomplished, and, also the learned Magistrate concerned, upon being seized, of the private complaint, would be concluded to not wander astray, in his exercising jurisdiction, under Section 204 of the Cr.P.C., comprised in his making the impugned order, (ii) whereas, purported infraction thereof, arises hereat, from ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...6...
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his issuing summons, for eliciting the presence of the accused/petitioner before him, directions whereof, issued under sub section (1) of Section 204, of the Cr.P.C., are, a sequel of his obviously, within, the domain of sub-section (1) of Section 204 of the Cr.P.C., rather taking cognizance upon the complaint, even when, reiteratedly thereat, the peremptory prosecution sanction, hence was amiss.
4. The learned counsel appearing, for the petitioner, has also placed reliance, upon, a judgment of this Court, rendered in Cr.MMO No. 42 of 2002, titled as Rakesh Nath & another vs. H.P. State Environment Protection & Pollution Control Board, decided on 31.12.2004, wherein, vis-a-vis, alike the petitioner herein, the petitioners therein, who, were rendering employment, as Chairman, BBMB, and, Chief Engineer of the Beas Sutlej Link of the BBMB , (i) this Court, had in the apt portion thereof, which stands extracted hereinafter, had concluded, that the BBMB ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...7...
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being neither a Body corporate nor a Public Under taking nor a government company, rather it being a statutory body created under the Punjab Re-organization Act. (ii) AND thereupon had recorded a conclusion, qua , the prosecution of the co-petitioners therein being unamenable, to be launched qua them, given prior thereto, the apposite prosecution sanction, hence, being unmeted by the designated authority. Reemphasisingly, this Court, in the afore referred judgment, had, for evident want, of, sanction, for, hence prosecuting the petitioners therein, being meted by the designated authority, had, proceeded to recall, and, quash the impugned orders, issued vis-a-vis them, by the judicial magistrate concerned, upon a complaint instituted against them, for theirs allegedly violating, the provisions borne in Sections 41, 43, 44, 47 and 49 of the Water (Prevention and Control of Pollution) Act, 1974. (iii) whereunder alike hereat, the petitioners therein were yet ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...8...
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summoned. The apt portion of the judgement supra reads as under:-
"The ratio of Mohd. Hadi Raja is of no assistance to the respondent in the present case. I have already said that BBMB is neither a Body corporate nor Public Undertaking nor a Government company.
BBMB is a statutory Body created under the Punjab Re-organization Act to discharge the functions relating to Bhakra Beas Project, which are under the Statute dischargeable by the Central Government."
5. The afore-referred verdict rendered by this Court, in Cr.MMO No.42 of 2002 ,would beget its square attraction hereat, (i) given eruption, of evident alikeness, inter se, the capacities of the petitioners therein, vis-a-
vis, the petitioner herein, besides, given the assumption therein, of, jurisdiction by the learned Magistrate concerned, arising, from a complaint instituted before him, whereafter, he alike herewith hence proceeded, to, within the ambit of Section 204 of the Cr.P.C., rather ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...9...
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after taking cognizance, ordered for issuance, of summons, qua accused therein, (ii) even when, as akin hereat, at the aforesaid stage, no sanction, within the ambit of Section 197, of the Cr.P.C., was rendered by the designated authority. Consequently, with all the aforestated absolute concurrence(s), and, similarities, inter se, the factual matrix therein, and, the factual scenario prevailing hereat, rather making their evidence emergence hereat, (iii) thereupon, this Court, in consonance therewith, is, constrained to accept, the instant petition, and, to direct for the quashing and recalling, of, the summoning orders. However, it is made clear that it is open, for, the learned Magistrate concerned, to, after the apposite orders, for prosecuting, the accused are rendered, by the designated authority, he shall, in accordance with law, take cognizance upon the complaint, and, issue orders, for summoning, the accused/petitioner. Obviously, the learned Magistrate ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...10...
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concerned, shall thereafter, on the apposite sanction, for prosecuting the petitioner herein, being meted, by the designated authority, hence also bear in mind, all the espousals reared, by the petitioner, qua the factum, vis-
a-vis, with his name being ordered to be deleted, by the respondents, and, thereafter the respondents ensuring the addition, in his place, of one Shri S.K. Sharma, qua hence yet the petitioner's arraying, as an accused, being or not being legally infirm.
6. However, at this stage, the learned counsel appearing for the respondents, places reliance, upon a verdict, of the Hon'ble Apex Court, rendered, in Cr.
Appeal No. 4576 of 2018, titled as Manju Surana vs. Sunil Arora and others, decided on 27 th March, 2018, wherein, the Hon'ble Apex Court, has made a reference, for, an adjudication being meted by a larger Bench of the Hon'ble Apex Court, vis-a-vis, the conundrum appertaining qua the scope of inquiry, under ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...11...
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Section 156(3) of the CR.P.C., (i) AND, whether at the stage, of exercising, of, jurisdiction by the learned Magistrate, under, Section 156(3), of, the Cr.P.C., and, wth the application, cast, within the parameters, of the aforesaid provisions, occurring in the Cr.P.C., also embodying, therein, rather offences constituted, under, the provisions, of, the Prevention of Corruption Act, (ii) or under any other statutory provisions, whereunder, prior meteing, of, statutory sanction, for hence validly launching the prosecution, of, the accused, hence is, peremptory, (iii) thereupon, pointedly, at the stage of institution, of the complaint, under provisions aforesaid, it being rather peremptorily enjoined, upon, the complainant, qua, thereat its evidently, holding the apposite peremptory sanction, for hence validly launching, prosecution against, a public servant. (iv) Therefrom, he contends that since the controversy engaging, this Court, is, alike the one, qua wherewith, a, ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...12...
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reference is made by the Hon'ble Apex Court, to a larger Bench, of, the Hon'ble Apex Court, hence awaiting the pronouncement, of a verdict, upon, the apposite matter referred, for, meteing, of, an adjudication thereon, by the larger bench, of, the Hon'ble Apex Court, this Court not proceeding, to apply hereat, the mandate of the decision, rendered, by a co-ordinate bench of this Court, in Cr.MMO No. 42 of 2002.
7. However, the aforesaid submission, as addressed before this Court, by the learned counsel appearing for the respondents, is, amenable to rather founder, (i) as it arises, from, a gross misreading, of the apposite paragraph No.34 of the verdict, pronounced, by the Hon'ble Apex Court, in Cr. Appeal No. 457 of 2018, (ii) besides it, arises, from his remaining, oblivious to the factum, of evident contradistinctivity existing, inter se, the provisions, occurring, in Section 156(3) of the Cr.P.C., vis-a-vis, the ones borne, in Section 204 of the Cr.P.C., ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...13...
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(iii) apparently, also his being unmindful qua attractability hereat, of, the latter provisions. Contrarily, the verdict, of the Hon'ble Apex Court, rendered in Cr.
Appeal No.457 of 2018, is, confined, to, the mandate, occurring, in Section 156(3) of the Cr.P.C., provisions whereof stand extracted hereinafter:-
"156. Police officer's power to investigate cognizable case.--
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned."
The aforesaid provisions, appertain, (i) to the apt jurisdiction bestowed thereunder, upon the Magistrate concerned, to upon, the latter being seized, of, a motion made before him, under Section 156(3) of the Cr.P.C., to, ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...14...
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in compliance therewith hence order for investigations being carried, by a police officer, vis-a-vis, cognizable offences, as, borne in the apposite application, hence cast within its domain. Any aforesaid rendition, by the learned Magistrate concerned, for the Police Officer hence holding investigation also entails upon him, a, statutory obligation to also order, the police officer, to prior thereto lodge an FIR, with respect to the offences, carried, in the apposite application. The imperative significance thereof, is of, (ii) upon conclusion, of, investigations, the learned Magistrate concerned, being empowered, to, on being seized, with, the report submitted before him, under Section 173 of the Cr.P.C., take cognizance thereon, (iii) whereas, in gross contradistinctivity thereto, any empowerment bestowed upon the learned Magistrate to take cognizance, upon, a private complaint, constituted under Section 204 of the Cr.P.C., only arises,or is invokable in the manner ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...15...
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statutorily ordained therein, inasmuch as, upon directions being rendered, by the Magistrate concerned, for issuance of summons, upon, the accused. However, even though, despite the aforesaid contradistinctivities, hence occurring, inter se, the statutorily ordained manner, of, complaint, vis-a-vis, r to the Magistrate, taking cognizance, upon, a private an FIR, ordered to be registered, upon a motion being made before him, under Section 156(3) of the Cr.P.C., or vis-a-vis upon conclusion, of, investigations, upon an FIR ordered to be registered, by the Magistrate concerned, upon his pronouncing, affirmative directions, upon, his being seized, with an, application cast under the provisions of Section 156(3) of the Cr.PC.., (iv) yet an imperative alikeness, inter se, both the aforesaid statutorily ordained modes, appertaining qua taking, of, apt cognizance(s), is rather manifest, (v) similarity whereof, is comprised, in the Magistrate concerned, upon taking cognizance, upon, a police report ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...16...
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or upon a complaint, especially, when both the police report or the complaint, embody therein offences, warranting peremptory meteing, of, the apposite sanction, by the designated authority, (vi) his refraining, to take cognizance, upon both, unless prior thereto, the apposite sanction, within the ambit of Section 197 of the Cr.P.C., is purveyed, by the designated authority, for hence prosecuting the accused. However, even if the aforesaid alikeness qua the facet aforesaid, is, rather manifestly surging forth, (vii) nonetheless, the factum, of, any making, of, a reference to a larger Bench, of the Hon'ble Apex Court, for, hence resolving the aforestated conundrum, embodied in paragraph No.34, of the judgment, relied upon the learned counsel, for the respondents, would not yet restrain, this Court, to apply hereat the mandate of the verdict rendered by this Court, in Cr.MMO No. 42 of 2002, (viii) especially when the controversy referred, for, the meteing of an apt ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...17...
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adjudication thereon, to a larger Bench of the Hon'ble Apex Court, only appertains, to the peremptoriness or the absolute necessity, of meteing, of, statutory sanction, for prosecuting a public servant, for his committing, the apt penal misdemeanors, during, the discharge of his official duties, pointedly only, at a stage contemporaneous, to the institution of a complaint, cast under the provisions of Section 156(3) of the Cr.P.C., (ix) hence, with the aforestated stage, appertaining to the stage, of launching, of, investigations, and, its not appertaining, to the stage, of conclusion of investigations, nor its appertaining, to the stage, of, the court, upon, being seized, of a report submitted before it, under, Section 173 of the Cr.P.C., it without, the peremptory sanction, being, within the domain of Section 197 of the Cr.P.C., hence meted thereon rather, is, forbidden to take cognizance, upon, the report submitted, under, the provisions of Section 173 of the ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...18...
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Cr.P.C., by the Investigating Officer. Consequently, the investigative stage, whereat, the provisions, of, Section 156(3), of the Cr.PC, may hereat warrant attraction, of the aforesaid unresolved conundrum, appertaining, to, legal necessity, of, existence thereat, of, the mandatory apt statutory apposite sanction, rather evidently, is, not existing hereat, (x) contrarily, therefrom, rather hereat the visible contradistinct, thereupon, provisions, of Section 204 of the Cr.P.C., comprise, the apt hereat attractable provisions, and, within domain whereof, the extant complaint is filed, against, the accused/petitioner,
(xi) and, with the learned Magistrate concerned, hence, taking cognizance, whereas, thereat the peremptory necessity, of, prior thereto, meteing of apt sanction, within, the ambit of Section 197 of the Cr.P.C., was wanting, for hence imputing validity, to the apt taking of cognizance, (xii) thereupon, the apt paragraph of the verdict of the Hon'ble Apex Court, obviously, does not ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...19...
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detract, the efficacy of the verdict rendered (supra), by a coordinate bench of this Court, nor this Court would be coaxed to not apply its mandate hereat.
4. For the foregoing reasons, the instant petition is allowed and the summoning order impugned before that it r is to this Court is quashed and set aside. However, it is made clear open, for the learned Magistrate concerned, to, after the apposite orders, for prosecuting, the accused/petitioner herein, are rendered, by the designated authority, he shall in accordance with law, take cognizance upon the complaint, and, issue orders for summoning, the accused/petitioner. Obviously, the learned Magistrate shall thereafter, on the apposite sanction, for prosecuting the petitioner herein, being meted, by the designated authority, hence also bear in mind, all espousals reared, by the petitioner, qua the factum, qua with his name being ordered to be deleted, by the respondents, and, thereafter the respondents ::: Downloaded on - 14/06/2018 23:00:12 :::HCHP ...20...
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hence ensuring addition, in his place, of one Shri S.K.
Sharma, qua hence yet the petitioner's arraying, as an accused, being or not being legally infirm. All pending applications also stand disposed of. Records, if any, received, be sent back forthwith.
11 th June, 2018.
to (Sureshwar Thakur)
Judge.
(jai)
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