Holding

The High Court's order quashing the FIR and charge‑sheets was illegal; the Supreme Court set aside that order and dismissed the writ petitions.

Summary

The Bihar State Co‑operative Marketing Union (BISCOMAUN) was placed under administration by the State Government, after which its administrator, R.K. Singh, reported alleged financial irregularities involving former Managing Director P.P. Sharma, advisor G.D. Mishra and Chairman Tapeshwar Singh in the purchase of sub‑standard fertilizers. A FIR and two police charge‑sheets were filed under various IPC sections and the Essential Commodities Act, and the Special Judge began hearing on cognizance. Sharma and Singh filed writ petitions in the Patna High Court seeking quash of the FIR and charge‑sheets; the High Court, relying on annexures submitted with the petitions and on alleged mala fides of the informant and investigating officer, quashed the criminal proceedings. The State appealed. The Supreme Court held that the High Court gravely erred by intervening before cognizance, by treating annexures not part of the police report as evidence, and by finding mala fides without proper proof. It affirmed that the sanction under Section 197 CrPC was valid, that the investigation was proper, and that the High Court could not substitute itself for the criminal court. The appeals were allowed, the High Court judgment set aside and the writ petitions dismissed.

Issues considered

The scope of the High Court's extraordinary jurisdiction under Article 226 to quash an FIR and charge‑sheet before a criminal court has taken cognizance.
Whether alleged mala fides of the informant (R.K. Singh) and the investigating officer (G.N. Sharma) can justify quashing the prosecution.
Whether the sanction granted under Section 197 of the CrPC and Section 15A of the Essential Commodities Act was vitiated by lack of application of mind.
Whether a prima facie case existed on the material placed in the police reports and charge‑sheets.
Whether the High Court could consider annexures and affidavits not part of the police report in deciding the petition.

Legislation cited

Code of Criminal Procedure, 1973s. Section 154, s. Section 155, s. Section 156, s. Section 157, s. Section 159, s. Section 172, s. Section 173, s. Section 173(8), s. Section 197, s. Section 482
Constitution of Indias. Article 21, s. Article 226
Essential Commodities Acts. Section 15A, s. Section 7
Fertiliser Control Order, 1957
Indian Evidence Act, 1872s. Section 114(e)
Indian Penal Code, 1860s. Section 120B, s. Section 409, s. Section 420, s. Section 468, s. Section 469, s. Section 471

Subjects

quash FIRcharge‑sheetArticle 226mala fidesSection 197 CrPCEssential Commodities Actinvestigationhigh court jurisdictionprima facie casesanctionpublic servantbiasnatural justice

Judgment

STATE OF BIHAR ETC. ETC.
A
v. /

P.P. SHARMA, IAS AND ANR.

APRIL 2, 1991

[KULDIP SINGH AND K. RAMASWAMY, JJ.] B

Constitution of India, 1950: Article 226-High Court-When and
under what circumstances would be justified to quash charge sheet
before cognizance of offence taken by criminal court.
)

Code of Criminal Procedure: Sections 173, 194, 197-Investi-
gation-Powers ofpolice-lntereference by Court when arises. c

The Bihar State Co-operative Marketing Union (BISCOMAUN) is
the sole purchaser and distributor of fertilizers in the State. When the
BI SCOMA UN was at the brink of liquidation due to mismanagement,
the State Government superseded its Board of Directors and appointed D
R.K. Singh, I.A.S., as its Administrator and Managing Director on
July 30, 1988.

In the course of the discharge of his duties, R.K. Singh noted that
financial irregularities had been committed by P.P. Sharma, the first
respondent, Genesh Dutt Misra, the second respondent, and Tapesh- E
war Singh, in the purchase of fertilizers for distribution in the State. At
the relevant time, P.P. Sharma was the managing Director of BISCO-
MAUN, Genesh Dutt Misra its advisor, and Tapeshwar Singh its
Chairman.

R.K. Singh laid the information regarding the financial irregu- F
larities before the Station House officer, Gandhi Maidan Police Station,
Patna on September 1, 1988. The substratum of the accusations made
against them was that they had conspired with the R&jasthan Multi
Fertilizers Private Limited, through its partners, to cause wrongful
gains to the company and wrongful loss to the BISCOMAUN in the
matter of purchase of sub-standard fertilizers from the Company. G

- On the basis of the report, a case under sections 409, 420, 468,
469, 471, 120B, I.P.C., and section 7 of the Essential Commodities Act,
was registered against eight persons including Tapeshwar Singh, P.P.
Sharma, and Ganesh Dutt Misra. Four other accused persons were the
partners of the Company, and the fifth one was an Assistant in the H
2 SUPREME COURT REPORTS [1991] 2 S.C.R.

A department who was alleged to have forged the test reports.

The investigation in the case was completed by police and two
police reports, one under section 7 of the Essential Commodities Act
and the other under various sections of the J.P.C., were submitted
before the Competent Court in October 1988. The Special Judge Patna
B 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 cognizance of various
offences projected therein. On January 31, 1989 the learned Special
Judge concluded the arguments and reserved the orders.

Tapeshwar Singh and P.P. Sharma filed writ petitions before the
C Patna High Court praying for quashing of the First Information Report
and the police reports. The High Court allowed the writ petitions and
quashed the FIR and the criminal proceedings against the accused-
petitioners.

[) The High Court, on appreciation of the documents which were
produced before it, as annexu_res to the writ petitions, came to the
conclusions that no prima facie offence was made out against the
respondents; that though the annexures, being part of BISCO-records,
were to the knowledge of R.K. Singh, he closed his eyes to the facts
contained in these documents and acted in a ma/a-fide manner in lodg-
E ing the FIR against the respondents on false facts; that the prosecution
was vitiated because G.N. Sharma, the Investigating officer, acted with
malice in refusing to take the annexures into consideration; and that no
case under Essential Commidities Act was made out from the police
reports and other documents on record. The High Court further held
that the composite order granting sanction under section 197 Cr.P.C.
F and section 15-A of the Essential Commodities Act was vitiated because
of non application of mind on the part of the competent authority; and
that the F.I.R. and the Charge Sheets violated the constitutional
mandate under Article 21 of the Constitution.

The instant appeals are against the judgment of the High Court,
G and the appellants are Girija Nandan Sharma, S.P. CID, Patna, the
•
investigator, and R.K. Singh, the informant, along with the State of
Bihar.

Before this Court it was contended on behalf of the appellants that
the High Court in the exercise of its extraordinary jurisdiction commit-
H led a grave error in taking into consideration the affidavits and docu-
STATE Of BIHAR v. P.P. SHARMA 3

ments filed alongwith the writ petitions; the High Court virluall)'
A
usurped the jurisdiction of the Magistrate/Special Judge by appreciat-
ing the affidavits and documents produced before it and reaching con-
clusions contrary to the charge-sheets (police reports) submitted by the
police; the High Court was not 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 contained in the police reports; and B
that the allegations if the police reports, if taken as correct, disclosed
the commission of a cognizable offence by the respondents.

On the other hand, it was contended that the prosecution against
the respondents was initiated as a result of' malice on the part of the
informant and the investigating officer: that the mala-fides on the part C
of the informant and the investigating officer was writ-large on the facts
of the case, that the composite order granting sanction under section
197 Cr. P.C. and section 15-A of the Essential Commodities Act was
vitiated bacause of non-application of mind on the part of the competent
authority; and that when the evidence collected during the investigation
was not unimpeachable, the prosecution and continuance of the pro- D
ceedings offended the respondents' right to life and livelihood enshrined
under Article 21 of the Constitution.

Allowing the appeals, setting aside the judgment of the High
Court and dismissing the writ petitions filed by the respondents before
the High Court & this Court. E

HELD: Per Ku/dip Singh, J.

( 1) The High Court fell into grave error and acted with patent
illegality in quashing the criminal proceedings on the basis of the find-
ings which were wholly wayward. l29D I F

R.P. Kapurv. State of Punjab, [1960] 3 SCR 388, referred to.

(2) The High Court erred in appreciating the annexures/docu-
ments, which were produced by the respondents along with their writ
I
petitions, and further erred in delving into disputed questions of fact G
while exercising jurisdiction under Article 226/227of the Constitution. [24E]

(3) By treating the annexures which were neither part of the
police reports nor were relied upon by the Investigating Officer, as
evidence, the High Court converted itself into a trial court. The High
Court could not have assumed this jurisdiction and put an end to the H
4 SUPREME COURT REPORTS I 1991] 2 S.C.R.

A process of investigation and trial provided under the law. [18E]

(4) The question of ma/a-fide exercise of power assumed signi- """'
ficance only when the criminal prosecution was initiated on extraneous
considerations and for an unauthorised purpose. [24G I

B (5) The allegations of ma/a-fide against the informant based on
the facts after the lodging of the FIR were of no consequence and could
not be the basis for quashing the proceedings. [25D I

(6) Ther.e was no material whatsoever in 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
c registering the case against the respondents was to have an investigation
done into the allegations contained in the FIR and in the event of there
being sufficient material in support of the allegations to present the
charge-sheet before the court. There was no material to show that the
dominant object of registering the case was the character assasination
0 of the respondents or to harass and humiliate them. [24H-2SA]

When the information is lodged at the police station and an
offence is registered, the mala fldes of the informant would be of secondary
importance. It is the material collected during the investigation which
decides the fate of the accused person. [258]
E
State of Bihar v. J.A.C. Saldhana & Ors., [1980] 2 SCR 16 and
State of Haryana v. Ch. Bhajan Lal, J.T. (1990) 4 S.C. 655, referred to.
-~

(7) When the police report under section 173 Cr. P.C. had to go
through the judicial scrutiny, it was not open to the High Court to find
F fault with the same on the ground that certain documents were not
taken into consideration by the investigating officer. [lSG I

(8) Simply because the Investigating Officer, while acting bona-
fide ruled out certain documents as irrelevant, it was no ground to
assume that he acted ma/a fide. [25E] ,__\,,
G
(9) The sanction under section 197 Cr. P.C. was not an empty-
formality. It was essential that the provisions therein were observed
with complete strictness. The object of obtaining sanction was that the
authority concerned should be able to consider for itself the material
before the investigating officer, before it came to the conclusion that the
H prosecution in the circumstances be sanctioned or forbidden. To com-
STATE OF BIHAR v. P.P. SHARMA 5

ply with the provisions of section 197 it must be proved that the sanction
A
was given in respect of the facts constituting the offence charged. It was
desirable that the facts should be referred to on the face of the sanction. [28E]

(10) Section 197 did not require the sanction to be in any particu-
lar form. If the facts constituting the offence ~barged were not shown on
the fact of the sanction, it was open to the prosecution, if challenged, to B
prove before court that those facts were placed before the sanctioning
authority. It should be clear from the form of the sanction that the
sanctioning authority considered the relevant material placed before it
and after a consideration of all the circumstances of the case sanctioned
the prosecution. [28F]

(11) In the present case the investigation was complete on the date c
of sanction and police reports had been filed before the Magistrate. The
sanctioning authority had specifically mentioned in the sanction order
that the papers and the case diary had been taken into consideration
before granting the sanctions. [28G I
D
(12) Case diary was a complete record of the police investigation.
It contained total material in support or otherwise of the allegations.
The sanctioning authority having taken the case diary into considera-
tion before the grant of sanction, it could not be said that there was no
application of mind on the part of the sanctioning authority. [28H-29AI
E
(13) The findings of the High Court that no offence was made out
)
against the respondents under the Essential Commodities Act was also
based on the appreciation of 'the annexures' and other disputed facts on
the record and as such was untanable for the same reasons. [29C]

Per K. Ramaswamy, J. F

(1) Grossest error of law has been committed by the High Court
in making pre-trial of a criminal case in exercising its extraordinary
jurisdiction under Art. 226. [49B I

State of West Bengal v. Swaran Kumar, [1982] 3 SCR 121 and G
Madhaorao J. Scindia v. Sambhaji Rao, [1988] 1SCC692 distinguished.

(2) Quashing the Charge Sheet even before cognizance is taken by
a criminal Court amounts to "killing a still born child". Till the crimi-
nal court takes cognizance of the offence there is no criminal proceeding
pending. [48C] H
6 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A (3) The arms of the High Court are long enough, when exercising
its prerogative discretionary power under Art. 226 of the Constitution,
to reach injustice wherever it is found in the judicial or quasi-judicial
process of any Court or Tribunal or authority within its jurisdiction.
But it is hedged with self imposed limitation. [32C]

B (4) The Code of Criminal Procedure, 1973 gives to the police
unfettered power to investigate all cases where they suspect a cognizable
offence has been committed. In an appropriate case an aggrieved
person can always seek a remedy by invoking the power of the High -'·
Court under Art. 226 of the Constitution. If the court could be con-
vinced that the power of investigation has been exercised by a police
C officer mala fide, a mandamus could be issued restraining the investi-
gator to misuse his legal powers. [358]

S.N. Sharma v. Bipen Kumar Tiwari & Ors., [1970] 3 SCR 945;
State of Bihar & Anr. v. J.A.C. Sa/danha & Ors., [1980] I SCC 554;
State of West Bengal v. Sampat Lal, [1985] I SCC 317; Municipal
D Corporation of Delhi v. Purshotam Dass Jhunjunwa/a & Ors., [1983] l -!
SCC 9 and Abhinandan Jha & Ors. v. Dinesh Mishra, [1967] 3 SCR
668, referred to.

(5) The function of the judiciary in the course of investigation by
the police should be complementary and full freedom should be
E accorded to the investigator to collect the evidence connecting the chain
of events leading to the discovery of the truth, viz., the proof of the
commission of the crime. [37D I

King Emperor v. Khawaja Nazir Ahmad, 76 Indian Appeals 203
and Jamuna Chaudhary v. State of Bihar, 3 SCC 774 (1974), referred
F to.

(6) The determination of a plea of ma/a 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, requirments and conditions of a valid exercise of administra- ,.-'w. .
G tive power. [38E]

(7) A complainant 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 probono publico. Therefore, inherent
animosity is licit and by itself is not tended to cloud the veracity of the
H accusation suspected to have been committed, provided it is based on
factual foundation. [39A-B]
STATE OF BIHAR v. P.P. SHARMA 7

(8) The person against whom mala fides or bias was imputed
A
should be impleaded co-nominee as a party respondent to the proceed-
ings and given an opportunity to meet those allegations. In his/her
absence no enquiry into those allegations would be made. Otherwise it
its~lf is violative of the principles of natural justice, as it amounts to
condemning a person without an opportunity. Admittedly, both R.K.
Singh and G.N. Sharma were not impleaded. [40A-B] B

(9) The finding of the High Court that the ma/a fides of the
Investigating Officer lVas established by the subsequ.ent conduct of his
participation in the writ proceedings was obviously illegal. When the
investigation was subject matter of the challenge in the court, it would
be obvious that the investigator alone was to defend the case; he had to
file the counter affidavit and to appear in the proceedings on behalf of
c
the State. [4 IF]

State of Bihar v. J.A. Saldana, AIR 1980 SC 326.

(IO) Before countenancing allegations of ma/a fides or bias it is D
salutory and an onerous duty and responsibility of the court not only to
insist upon making specific and definite allegations of personal animo-
sity against the Investigating Officer at the start of the investigation but
also must insist to establish and prove them from the facts and cir-
cumstances to the satisfaction of the court. I42D]
E
(II) Mere assertion or a vague or bald statement of ma/a fides
was not sufficient. It must be demonstrated either by admitted or
proved facts and circumstances obtainable in a given case. [38F]

( 12) Malice in law could be inferred from doing of wrongful
act intentionally without any just cause or excuse or without there F
being reasonable relation to the purpose of the exercise of statutory
power. [42G]

, (13) Malice in law is not established from the omission to consi-
der some documents said to be relevant to the accused. Equally,
reporting the commission of a crime to the Station House Officer G
cannot be held to be a colourable exercise of power with bad faith or
fraud on power. [42H]

(14) The findings of.the High Court that F .I.R. got vitiated by the
ma/a fides of the Administration and the charge sheets were the results
of the ma/a [ides of the informant or investigator, to say the least, was H
8 SUPREME COURT REPORTS I 1991] 2 S.C.R.

fantastic and obvious gross error oflaw. [43C]
A
State of Haryana v. Bhajanlal. J.T. (1990) 4 SC 655, referred to.

(15) An investigating officer who is not sensitive to the constitu-
tional mandates, may be prone to trample upon the personal liberty of a
B person when he is actuated by ma/a /ides. But the accused at the earliest
should bring to the notice of the court of the personal bias and his
reasonable belief that an objective investigation into the crime would
not be had at the hands of the investigator by pleading and proving as of
fact with necessary materials facts. If he stands by till the chargesheet
was filed, it must be assumed that he has waived his objection. He
cannot turn round after seeing the adverse report to plead the alleged
c malafides. [43H-44AJ

(16) The finding of the High Court that the F.I.R. charge-sheet
violated the constitutional mandate under Art. 21 was without
substance. [44B]
D
(17) The order of sanction is only an administrative act and not a
quasi judicial nor alis involved. The order of sanction need not contain
detailed reasons in support thereof. But the basic facts that constitute
the offence must be apparent on the impugned order and the record
must bear out the reasons in that regard. [46H-47 A]
E
(18) Filing of charge-sheet before the court without sanction per
se is not illegal, nor a condition precedent. At any time before taking
cognizance of the offence it is open to the competent authority to grant
sanction and the prosecution is entitled to produce the order of
sanction. [47E]
F
State of U.P. v. R.K. Joshi, [1964] 3 SCR 71, referred to.

(19) 'Proper application of mind to the existence of a prima facie
evidence of the commission of the offence is only a pre-condition to
grant or refuse to grant sanction. The question of giving an opportunity •
G to the public servant atthat stage does not arise. [478] ~

(20) A perusal of the sanction order clearly indicates that the
Govt. appears to have applied its mind to the facts placed before it and
considered them and then granted sanction. [47EJ

H (21) The prior sanction by the appropriate Government is an
STATE OF BIHAR v. P.P. SHARMA 9

assurance to a public servant to discharge his official functions dili- A
gently, efficiently and honestly without fear or favour, without haunt of
-f later harassment and victimization, so that he would serve his best in
the interest of the public. [45G]

Sirajuddin v. State of Madras, [1970] 2 SCR 931, referred to.
B
(22) The 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 not every offence committed by
a public servant that requires sanction for prosecution, nor even every
act by him while he actually engaged under colour of his official duty
that receives protection from prosecution. [468 I C

The offending act must be integrally connected with the discharge
of duty and should not be fanciful or pretended. J45G I

K. Satwaiit Singh v. State of Punjab, [1960] 2 SCR 89; Harihar
D
Prasad v. State of Bihar, [1972] 3 SCR 89 and S.B. Saha v. Kochar,
[19801 1sec111.

(23) Before granting sanction the authority or the appropriate
Govt. must have before it the .necessary report and the material facts
which prim a facie establish the commission of offence charged for
and that the appropriate Government would apply their mind to those
E
facts. [46G]
\- CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 527-28 of 1990
From the Judgment and Order dated 5.4. 1990 of the Patna High
F
Court in Cr!. W.J.C. Nos. 90 and 228 of 1989.
WITH
CRIMINAL APPEAL NOS. 523-248, 525-26/90.
Kapil Sibal, Additional Solicitor General, P.P. Rao, P.K. Shahi,
Mrs.. Vimla Sinha, Yunus Malli, Vikash Singh and L.R. Singh for the G
Appellants.
Dr. Shankar Ghose R.K. Jain, Rakesh K. Khanna, Surya Kant,
Rajan Mahapatra, Mrs. Sangeeta Tripathi Manda!, Ms. Abha Sharma.
Dr. S. Jha and R. P. Gupta for the Respondents.
The Judgment of the Court was delivered by H
10 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A KULDIP SINGH, J. The Bihar State cooperative Marketing
Union Limited (BISCOMAUN) (hereinafter called 'BISCO") is an
apex body operating in the State of Bihar. It is a federation of
Cooperative Societies and its primary function is to supply fertiliser to
farmers through its depots and godowns numbering about 550, spread-
over the State ofBihar.
B
Shri P.P. Sharma, IAS took over as Managing Director of
BISCO on May 26, 1986 and continued to hold the said office till June
14, 1987. From December, 31, 1986 to June 14, 1987 he was also
Secretary, Department of Cooperative, Government of Bihar and
Registrar, Cooperative Societies, State of Bihar. G.D. Mishra was
C 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. Ltd., Udaipur, Rajasthan
(hereinafter called the 'firm') was holding a Certificate of Registration
D issued on August 8, 1985 by the Director of Agriculture, Bihar. It is
alleged that a letter dated August 19, 1986 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 notification dated
July 14, 1984 fixing the prices for different grades of fertilisers. The
E price of the grade offered by the firm was fixed at Rs.2559 per MT
under the said notification. The firm sent another letter on October 5,
1986 repeating its offer contained in its earlier letter. The offer of the .J
firm was accepted and G.D. Mishra, on November 22, 1986, placed an
order with the firm for the supply of 2500 MT of fertiliser (NPK
15: 15:71/2) at Rs.2509.50 per MT. Thereafter G.D. Mishra placed
F 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. 73,16,244. Rs.23.02 lac was paid on December 18, 1986.
Thereafter Rs.30.96 lac was paid on January 22, 1987. Thus a total sum
of about Rs.54 lac was paid to the firm. The samples of the fertiliser ~
G 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 could not be sold to the farmers and huge stock kept on lying
in the godowns of BISCO for long time. The BISCO was manufactur-
H ing "Harabahar" brand of fertiliser at its two factories. It was ulti-
STATE OF BIHAR v. P.P. SHARMA [KULDIP SINGH, J.] 11

mately decided by the BISCO that the fertiliser which was supplied by
A
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 conversion into "Harabahar".

The reports received from the State Laboratory, Mithapur B
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, !AS took over the charge as the Managing
c
Director of BISCO on December 29, 1988. The management of
BISCO was superseded by an order of the State Government dated July
30, 1988 and R.K. Singh was appointed as an Administrator.

,.. On September I, 1988 R.K. Singh sent a written report to the D
Station House Officer, Police Station Gandhi Maidan, Patna on the
basis of which a case under Sections 409, 420, 468, 469, 471, l20B
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 E
Rajendra Agricultural University, Pusa. It would be useful to repro-
>- duce the First Information Report (hereinafter called 'FIR') herein-
after:

"FIRST INFORMATION REPORT.
F
BIHAR STA'fl' COOPERATIVE MARKETING
UNION LTD. BISCOMAUN BHAWAN, WEST
GANDHIMAIDAN,PATNA-800001.

Ref. No. AD/c-70 1.9.1988
G
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 H
12 SUPREME COURT REPORTS [1991] 2 S.C.R.

other at Jasidih, which produce mixture fertiliser. It is
A marketed in the brand name of 'HARABAHAR'.

In course 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
B 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 trans-
pired that 'Suraj Brand N.P.K.' was purchased from a pri-
vate firm namely Mis. Rajasthan Multi Fertiliser Pvt. Ltd.,
c 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 conspiracy for wrongful gain to Mis. Rajasthan Multi
D Fertiliser Pvt. Ltd. and erstwhile Chairman of BISCO-
MAUN, Sri Tapeshwar Singh and some officers responsi-
ble 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:

E The said firm Mis. Rajasthan Multi Fertilisers Pvt.
Ltd. wrote a letter to the Chairman, BISCOMAUN enclos-
ing its previous letter to the Managing Director, BISCO-
MA UN, stating therein that they were manufacturing
fertilisers under the brand name of 'Suraj Brand N.P.K.
( 15: 15:71i2) mixture fertiliser and they should be favoured
F 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 not' received in the normal course in
the office, but was handed over direct to the then Chair-
man. It is also to be noted that the said letter was not in
response to any advertisement of BISCOMAUN inviting
G offers.

The Chairman endorsed this letter to Managing
Director. This letter was not allowed to come down to the
office for examination in the normal course. On this letter,
the then Advisor (Rehabilitation)'Shri G.D. Mishra initia-
H ted the file at his own level and put up a proposal from his
STATE OF BIHAR v. P.P. SHARMA [KULDIP SINGH, J.] 13

own level for the purchase of the said fertiliser from the
A
said firm. He has mentioned in his note that the question of
purchase had been discussed between himself and the
Chairman and Managing Director. It is clear that the pro-
posal for purchase was put up in pursuance to that discus-
sion, after the meeting of minds had taken place to order
the purchase. Nobody else in the organisation was taken B
into confidence about this proposal. Even the advice of
Finance was not taken.

This proposal initiated by Shri G.D. Mishra, Adviser
(Rehabilitation) was endorsed by the then Managing
Director, Shri P.P. Sharma, for the approval of the
Chairman and the proposal was approved by the Chairman.
c

"No. tenders were called for nor any steps were taken
to ascertain the competitive prices of similar type of
fertiliser. Even the quality of the fertiliser was not tested
'y before issuance of purchase order. All this was done in D
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
~. E

• \. . One of the conditions of the purchase was that the
said fertiliser will contain nutrient value in proportion
15: 15:71/2 and if it was found that the nutrient value is less
than the above, the consignment will be rejected. The
Chemical examination was to be done either in the labora- F
tory of BISCOMAUN or any other laboratory approved by.
the State/Central Government. Contrary to this condition,
the chemical examination of the fertiliser is said to have
been carried out by one Dr. S.N. Jha, Associate Professor
of Soil Science, Rajendra Agriculture University. It is also
not clear from the records that by whom the samples were G
collected and sent to the said expert. According to Ferti-
liser Control Order, 1957, the sample must be collected by
the Fertiliser Inspectors of the State Government and an
analysis must be conducted in the laboratory of the State/
Central Government, Dr. Jha .reported that the samples
analysed by him was of the proper grade and standard con- H
14 SUPREME COURT REPORTS [1991] 2 S.C.R.

taining nutrient in the proportion of 15: 15:71/2.
A
The said fertiliser was distributed to the different
depots of BISCOMAUN. Against the decision to purchase
2500 mis. the then Adviser (Rehabilitation) Shri G.D.
Mishra gave despatch instruction for 2916 mts. to the said
B firm. It needs to be pointed out that the said Rajasthan
Multi Fertilisers Pvt. Ltd. had no E.C.A. Allocation for
sale of their product in Bihar. Even then, the management
of BISCOMAUN placed orders for supply of fertilisers J,
with this company.

When the sales of the fertiliser commenced, samples
c were taken from various depots in the normal course by the
fertiliser Inspectors. who are officers of the Agriculture
Department through out the State and sent to the authori-
sed laboratories for chemical examination. The analysis
revealed that the said fertiliser was spurious and of sub-
D standard quality and lacking in nutrient value. Copies of
the result of the chemical analysis are enclosed. The
samples were taken from BISCOMAUN depots of Beni-
bad, Gangaiya, Bochaha, Dholi, Sakra, Minapur (all from
Muzaffarpur) Bihta, Bakhtiarpur, Karbighaiya (Patna),
(Jahanabad).
E
As per the terms of purchase, the said spurious
fertiliser was to be taken back by the manufacturer at their J
own cost. Accordingly, the then Adviser (Rehabilitation)
wrote to the firm that the said fertilisers from the following
depots be taken back (Aru,al, Minapur, Sakra, Dholi,
F Benibad, Gangaiya and Bihta). It is to be noted that where-
ver 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 b~en returned
or the entire lot tested. Instead of this, the fertiliser from
G 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
H sub-standard fertiliser to the farmers of the State from the
STATE OF BIHAR '· P.P. SHARMA [KULDIP SINGH, J.J 15

depots, where from samples were not taken.' A

There was undue haste in making payment. The said
Rajasthan Multi-Fertilisers Pvt. Ltd. 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 Chal-
lan No. 206 and 209 by the Depot Manager that the Fertilis- B
ers were not in granulated form and the bags were non-
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 not received. It was
also again pointed out that the supplies were made in un-
standard bags. The Adviser (Rehabilitation) Shri G.D.
Mishra over-ruled this objection and recommended to the
c
Managing Director that not only the said bill of
Rs. 13.07 lacs he paid but also two bills of Rs. 12.0J lacs
and Rs.5.83 lacs, which had not 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 D
January, 1987 itself. In all, out of the total bill (after
deducting shortage) of Rs.65, 53, 642. 11, Rs.53, 97, 277.
32 had been paid to the company.

The reports of the fertiliser being sub-standard
started coming from May, 1987. On the 2nd May, 1987, the E
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 Bisco-
maun informing Biscomaun that the samples of the said
fertilser taken from Minapur, Bihta, Arwal and Sakra were
found to be sub-standard and spurious. On 18.5. 1987, the F
Regional Officer, BISCOMAUN, Gaya had reported that
the sample of the said fertiliser taken from Arwal Depot by
the Agriculture Officer and tested is spurious.

When reports of the chemical analysis by the State
Laboratory started coming in and it was found that the said G
fertiliser was spurious and sub-standard, the then Manage-
ment. of Biscomaun made a conspiracy to consume the
spurious fertiliser instead of returning it to the manufac-
turer and claiming back the money paid.

It has been clarified above that as per the terms of the H
16 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

purchase, the entire fertiliser of Suraj Brand ought to have
A been returned to the company and refund taken. Instead of
this, in order to cause wrongful gain to the company 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 deci-
B sion 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.
c
It is to be noted that the Board only approved the
proposal to reprocess the old stock and as the stock of
Suraj Brand was not old one, again to suite their end, a
proposal was mooted before the Executive Committee in
D May, 1987 to reprocess all the stock lying in depots, which
was approved. The Executive Committee could not modify
the decision taken by the Board of Directors. The said
Suraj Brand fertiliser could not 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 sub-
E standard by the State laboratory, Biscomaun should have
recovered the amount paid to the Company.

However, on the said Executive Committee decision,
the management of Biscomaun along with old stock of
fertiliser also started transferring the said Sura j Brand
F fertiliser to the two factories so that it could be converted
into Harabahar and consumed. It is to be noted 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 converted into Harabahar. The said Suraj
G Brand material from Benipad, Bochaha, Gangaiya (muzaf-
farpur) 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 gimmik
was a conspiracy to cause unlawful gain to the said Ra-
jasthan Multi-Fertilisers Pvt. Ltd. and unlawful personal
H gain to the persons involved by consuming spurious fertilis-
STATE OF BIHAR '· P.P. SHARMA [KULDIP SINGH. J.J 17

ers supplied by them thereby also causing wrongful loss to
Biscomaun and the farmers of the State. Not only that the
aforesaid serious offences were committed, but the provi-
sions of Fertiliser Control Order, 1957 were also violated
by supplying spurious and sub-standard fertilisers.

It is, therefore, manifest from aforesaid facts that the B
then Chairman, Sri Tapeshwar Singh, Managing Director
Shri B.P. Sharma, Shri G.D. Mishra had entered into a
) criminal conspiracy with Shri O.P. Agrawal, M.D. Nara-
yan Lal Agrawal, Banshi Lal Agrawal and Gopal Lal
Agrawal, Directors of Rajasthan Multi Fertilisers Pvt. Ltd.
and thus Biscomaun was cheated of Rs.53,97 ,277.32.
c
Tapeshwar Singh and P.P. Sharma accused persons filed Writ
Petition 289 of 1988 on September 29, 1988 before the Patna High
Court with a prayer that the First Information Report be quashed. The
petition was adjourned to different dates on the request of the counsel
r for the petitioners. Meanwhile the investigation in the case was comp- D
leted by the police and two police reports, one under Section 7 of the
Essential Commodities Act and the other under various section of the
I. P .C., were submitted before the Competent Court in October, 1988.
the Special Judge, Patna 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 E
cognizance of various offences projected therein. On January 31, 1989
the learned Special Judge concluded the arguments and reserved the
orders.

Tapeshwar Singh filed Criminal Miscellaneous Petition in the
High Court on February 17, 1989. the High Court stayed further pro~;·· F
ceedings in the Court of Special Judge, Patna. P.P. Sharma filed writ
petition 90 of 1989 in Patna High Court on March 17, 1989 prayi'ng for
··i 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 Court below. On July 6, 1989 P.P. Sharma
withdrew writ petition 289 of 1988. G.D. Mishra filed writ petition 228 G
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 Court heard the arguments in writ petition 90 and 228
of 1989 from November 1, 1989 to February 8, 1990. The bench consist- H
18 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A ing of S.H.S. Abdi, S.Hoda, JJ allowed the writ petitions by its judg-
ment dated April 5, 1990 and quashed the FIR and the criminal pro-
ceedings against the accused-petitioners. These appeals are against the
judgment of the High Court via Special Leave Petitions. In Criminal
Appeal Nos. 525-26/90 Shri Girija Nandan Sharma, S.P. CID, Patna,
the investigating officer and in Criminal Appeal Nos. 523-24/90 Shri
B
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 appeallants have contended that the High Court in
the exercise of its extra ordinary jurisdiction committed a grave error
c in taking into consideration the affidavits and documents filed along-
with the writ petitions. The counsel contended that the High Court
virtually usurped the jurisdiction of the Magistrate/Special Judge by
appreciating the affidavits and documents produced before it and
reaching conclusions contrary to the charge-sheets (police reports)
D submitted by the police. According to the learned counsel two police
reports under Section 173 Cr. P.C. had already been filed in the Court
and in fact after hearing the parties at length, on the question of
cognizance. the learned Special Judge had reserved the orders. The
counsel contended that the High Court was not justified in quashing
the proceeding at the. stage when the Special Judge was seized of the
matter and was in the process of appreicating the material contained in
E
the police reports.

The learned counsel 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 correct, disclose the commission of a
F
cognizable offence by the respondents.

The learned counsel for the parties have taken us through the
judgment of the High Court which runs into about two hundred pages.
Long back in R.P. Kapur v. State of Punjab, [1960] 3 SCR 388 this
G· Court circumscribed the jurisdiction of the High Courts to quash cri-
minal proceedings in a given case. The law on the subject is clear and
~-
there is no scope for any ambiguity. The High Court noticed a score of
decisions of this Court with abounded quotes therefrom and yet failed
to see the settled legal position on the subject. The High Court fell into
grave error and acted with patent illegality in quashing the criminal
H proceedings on the basis of the findings which are wholly wayward.
STATE OF BIHAR v. P.P. SHARMA. [KULDIP SINGH. J.J 19

The High Court on appreciation of the documents produced
A
before it by the respondents came to the following conclusions:

I. 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
Court as annexurcs to the writ petitions, were not taken B
into consideration by the Investigating Officer. On apprei-
cation of the annexures it was found that no prima facie
J. 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 SISCO-records, were to the knowledge of R.K. Singh,
c
he closed his eyes to the facts contained in these documents
and acted in ma/a fide manner in lodging the FIR against
the respondents on false facts.

,.. 3. The prosecution was vitiated because Shri G.N. Sharma D
the investigating officer acted with malice in refusing to
take 'the annexures' into consideration.

4. The order granting sanction under Section 197 Cr. P.C.
in respect of P.P. Sharma was illegal.
E
5. No case under Essential Commodities Act was made out
from the police report and other documents on the record.

The finding that no prima facie offence was made out against the
respondents was reached by the High Court on the following reasoning:
F
"We are always conscious of the legal position and the
various pronouncements of the courts in India that dis-
puted questions .of facts cannot 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 G
informant himself and further when in the replies neither
the informant nor the LO. nor any officer of the State
Government has challenged the correctness of those docu-
mentary material so they are at present not disputed and
when it appears from the argument and the notes given by
the learned counsel for the opposite party that Annexures H
20 SUPREME COURT REPORTS .i 1991] 2 S.C.R.
1, 2, 9, 10, 12, and 13 have been considered by the 1.0. and
A they formed part of the records of the investigation except
annexure-I which was seized during the investigation and >-
r
formed part of the criminal proceedings. Annexures 3, 4, 5, '
6, 7, ll; 15, 16, 17, 18, 19, 20, 2 Ii L 22, 22/1, 24, 25, 26 and
39 which have been referred to earlier and dealt with, do
B not appear to have been considered by the I. 0. nor any
reference about these have been made in the arguments by
the learned counsel for the opposite party which apparently
have non-considered and non-disputed and when those
documents themselves demonstrate that no prima facie "·
offence is made out on the face value of those materials,
then the criminal prosecution should not be allowed to con-
c tinue and so it should be quashed."

It is thus obvious that 'the annexures' were neither part of the
police-reports nor were relied upon by the investigating officer. These
documents were produced by the respondents before the High Court
D along with the writ petitions. By treating 'the annexures' and affidavits -./
as evidence and by converting itself into a trial court the High Court
pronounced the respondents to be innocent and quashed the proceed-
ings. The least we can say is that this was not at all a case where High
Court should have interfered in the exercise of its inherent jurisdic- ·
tion. This Court has repeatedly held that the appreciation of evidence
E is the function of the criminal courts. The High Court, under the
circumstances, could not have assumed jurisdication and put an end to
the process of investigation and trial provided under the law. Since the _j
High Court strongly relied upon "the annexures" in support of its
findings, we may briefly examine these documents.

F Annexure 3 is a government notification dated October 10, 1986
wherein 5 types of fertilizers have been specified which could be
purchased or manufactured in the State of Bihar. Annex.Ure 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
Fertilisers (Control) Order, 1957. Annexure 5 dated July 29, 1986 is -1.
G the renewal of the said certificate. Annexure 6 dated November 16,
1985 is the certificate given to the firm by the Assistant Director
(Agriculture) quality control, 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 firm's r~~
H registration was renewed upto March 31, 1989 and it was granted
STATE OF ~!HAR v. PY SHARMA [KU,LDW ~lt!f!,H, ! ! fl
permission to import the specified grades of fertili~H i/11.9 fh.e §~M.e et A
Bihar. Annexure 11 dated October 23, 1986 is .the letter from G.D.
Miihra to Director, Agriculture, Bihar asking his ~pinio~·;~ga~~iqg
suitability of the fertiliser to be purchased from .tl)_e firll) .af /.ls.2,550
per M.T. Annexure 15 dated December 19, 1986 is t.he letter fro/II
G.D. Mishra to the firm asking the firm to supply 408 M.T. qi
fertiliser. Annexure 16 dated May 5, 1987 contains the proceedings of B
the marketing committee of BISCO held on April 16, 1987 whereii:i
memorandum of sale and purchase of fertiliser for the ye,a.r 1986,,87
was approved. Annexure 17 dated February 18, 1985 is the letter from
R.K. Singh as District Magistrate, Patna to Agriculture pr,oductio,n
Commissioner, Patna which discloses that R.K. ~ingh ha,d gqt sampJe~
of Essential Commodities tested from Rajendra Agricultur,e Univer-
sity. Annexure 18 dated March 23, 1987 is the mem.ora;id~/n prepar~d
.c
by P.P. Sharma for the Board of Directors of BISCO sugg~s~ing that
the fertiliser purchased from the firm be sent to BISCO f~_ctories as
raw-material. This was suggested because the fert.iliser was .not b,eing
sold inspite of reduction of price and huge stock and mo~ey was
blocked. Annexure 19 is the record of the proceedings of ,t_he me.eting D
of Board of Directors of ~ISCO dated March 23, 19.87 approving
Managing Director's suggestion that fertiliser be sent to BISCO
factories as raw maerial to be converted as 'Sada Bahar'. Annexure 20
dated May 21, 1987 is the memorandum prepared by P.P. Sharma for
Executive Commitee of BISCO regarding manufacture of 'Hara
Bahar' fertiliser by the BISCO factories. Annexure 20/1 is .copy of the E
proceedings of the Executive Committe.e
' '.
meeting
'.
'
held .on
' . ' ..
'~. ''. . 2),
May
1987 regarding manufacture of 'Hara Bahar'. Annex.ure 22 is ,the Cloc.u-
·' ment showing that P .P. Sharma ·handed o~er charge of'the .~ffl~~ ofthe
Managing Director to Sanjay Srivastava on June 15,· 1987 .. Annexur.e
22/1 is the document showing that P.P. Shan~a assume,d .~h.a,rg~-~s
Managing Director of BISCO on May 26, 1986. Annexure 24 da\ed
to
October 13, 1987 is the letter by Mishra to the firm asking it tak-;,
hack the sub-standard fertiliser from 8 depots mentioned the'~ein. A.nc
nexure 25 is the letter dated May 15, 1987 from Project Man.ager of·

- )
BISCO factory to Mishra, wherein the proposal for consumption of
fertiliser to manufactaure 'hara bahar' was detailed. It was also' stated
that the process of manufacture would be viable. Annexme 2.6 is a G
letter from the firm to the BISCO showing that the firm would help
converting fertiliser into 'hara bahar' and would meet the trnnspor.t,
handling and processing cost. Annexure 39 is the case dmry prepared
by the investigating officer. · ·

Taking the documents .in.to consideration th_e ,High _C_o'!:tt Er."\¥ H
22 SUPREME COURT REPORTS [1991] 2 S.C.R.

A the inference that the firm was a registered one, it had a licence from
the State of Bihar which gave monopoly to the firm to sell fertiliser
throughout the State of Bihar, it was not necessary to invite tenders.
the firm gave valid offer to sell which was accepted and the corres-
pondence addressed to the office of BISCO was initially dealt with at
the lower level and after getting reports from concerned authorities
B and after having full discussion at all levels the purchase of fertiliser
from the firm was approved by the highest authority including the
committee of the BISCO. The High Court 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, 'liara bahar' by reproces-
C sing the fertiliser purchased from the company, was approved by the
committee and the Board of BISCO, and the said re-processing had
yielded profits to the BISCO. On the basis of these inferences the High
Court came to the conclusion that the criminal proceedings against the
respondents were not justified.

D Mr. Kapil Sibal on the other hand has contended that the mate-
rial collected during the investigation prima facie show the involve-
ment of the respondents in the commission of the crime. The learned
counsel has highlighted the following material on the record to support
his contention:

E 1. The licence of the firm to manufacture fertiliser was cancelled
and the firm was not 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.

2. Letter dated August 19, 1986 alleged to have been written by
F 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 not know anything about the deal. The
contention is that the said letter was introduced into the file to
G show that the deal was not abrupt but there was prolonged
correspondence.

3. Mr. Sibal took us through the note of Mr. G.D. Mishra dated
November 14, 1986 which was approved by P.P. Sharma and
Tapeshwar Singh on November 20, 1986. The note was a recom-
H mendation for the purchase of fertiliser from the firm. Mr. Sibal
STATE OF BIHAR v. P.P. SHARMA IKULDIP SINGH, J.l 23

stated that in paras 7 and 8 of the note it has been wrongly A
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 no record of any
such meeting. Further Mr. Sibal read para 8 of the note a_nd
stated that the demand in the State was of Suphla 15: 15: 15 type
B
of fertiliser but G.D. Mishra in his note wrongly stated that the
said brand was not available and by saying so Mishra falsely
made out a case for the purchase offertiliser brand 15: 15 :71/2.
J.
4. Mr. Sibal read para 9 of the note of G.D. Mishra dated
November 14. 1986 and stated that Mishra recommended pay-
ment to the firm within 10 days 9f the receipt of the challan c
whereas the firm in its letter had indicated payment within 30
days.

5. The testing of the fertiliser was to be done either by the State
or the Central Laboratory. Mr. Sibal took us through the case
':°
D
diary showing that G.D. Mishra did not 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.

6. The respondents placed order for the supply of fertiliser to E
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 Uni-
F
versity was recorded which allegedly states that no fertiliser came
for testing to the Rajendra Agriculture University and no such
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.
G

7. 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.
H
24 SUfREME CQURT REPORTS [ 1991] 2 S.C.R.

8. Mr. Sibal contends that 8 out of 11 samples having been found
A 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'.

9. Mr. Sibal contends that 23 lacs were paid to the firm on
B 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.

10. According to Mr. Sibal material has come during investiga-
c tion 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 not wish to express any opinion on the rival contentions of
the parties based on their respective appreciation of material on the
D record. We have quoted "the annexures", the inferences drawn by the
High Court 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 Constitution of India.
E
We have gone through the entire material on the record carefully
and we are unable to agree with the High Court that there was any _,
ground to hold that the prosecution against the respondents was
initiated as a result of any maljce on the part of the informant or the
investigating officer. There is no material at all to show that prior to
F the lodging of the FIR there was any enmity between the respondents
and the informant/investigating officer. In fact there is nothing on the
record to show that the investigating officer G .N. Sharma was even
known to the respondents. Mr. R.K. Jain. learned counsel for one of
the respondents has invited our attention to various facts on the record
and has vehemently argued that the mala [ides on the part of informant -< ~
G 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 con-
siderations and for an unauthorised purpose. There is no material
whatsoever is this case to show that on the date when the FIR was
1-1 lodged by R.K. Singh be was activated by bias or had any reason to act
STATE OF BIHAR v. P.P. SHARMA IKULblP SINGH. i.J 25

maliciously. The dominant purpose of registering !He case against the
A
respondents was to have an investigatiori tlone iiiib th~ ailegations
contained in the FIR and in the event of there being sufficient material
in support of the allegations to present the charge-sheet before tlie
court. There is no material to show that the dominant object of
registering the case was the cliaratler assasiMlititi of !lie tespontlents
or to hat ass and humiliate them. This Court in Sllite of /Jihar v. J.A. C. B
Saldhana and Ors., [1980] 2 SCR 16 has held that when the informa-
tion is lodged at the police station and an offence is registered, the
J.. ma/a [ides of the informant would be of secondary importance. It is the
material collected during the investigation which decides the fate of
the accused person. This Court in State of liatyana and Ors. v. Ch.
Bhajan Lal and Ots,, J.T. 1990 (4) S.C. 655 permitted the State
Government to hold investigation afresh against Ch. Bhajan Lal
t
inspite of the fact that prosecution was lodged at the instance of
Dhararn Pal who was eriimical towards Bhajan Lal.

The informant, being in ii peculiar position having lodged the
accusation, is bound to be looked-down upon by the accused-persons. D
The allegations of mala fide therefore, against the informant based on
the facts after the lodging of the FIR are of no consequence and cannot
be the basis for quashing the proeeedings. As regards the investigating
officer, he has wide powers under the criminal procedure code. He has to
· perform his duties with the sole objed of investigating the allegations
and in the course of the investigation he has to take into consideration E
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 irrelevarit, it is no ground to assume that he
acted ma/a 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 no right to be F
heard at that stage but in case the accused person has any grouse
against the investigating officer ot with the method of investigation he
can bring to the notice of ihe Magistrate his grievances which can be
looked into by the Magistrate. When the police report under section
--!- ->- 173 Cr. P. C. has to go through the judicial scrutiny it is not open to the
High Court to find fault with the same on the ground that certain G
documents were not taken into consideration by the investigating
officer. We do not, therefore, agree with the High Court 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, notice
the factual-matrix on the basis of which the High Court has reached
the findings of ma/a fide against the informant and the investigating H
26 SUPREME COURT REPORTS [1991] 2 S.C.R.

A officer. The High Court based the findings against the informant R.K.
Singh on the following materials:

1. R.K. Singh, a comparatively junior officer had twice served
under P.P. Sharma as Asstt. Magistrate, Gaye and as Sub-
B Divisional Officer at Jamui.

2. 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 he took over the charge
as Registrar.
c
3. R.K. Singh deliberately violated Government instructions
dated November 17, 1986 requiring prior approval of the
Administrative department before initating criminal proceedings
against a Government officer.
D
4. R.K. Singh did not hand over the relvant files and papers of
BISCO to the investigating officer for more than a week in order
to gain time to temper/destroy/forge the BISCO files. He con-
tinued to direct the investigating officer throughout the investi-
gation. Even affidavit was filed by the investigating officer on his
behalf.
E
5. The documents in possession of R.K. Singh were such that
any reasonable and fair minded person would not have filed the
FIR. He acted ma/a fide in igonring the documents and lodging
the FIR.
F
6. R.K. Singh got the sanction for prosecution of P.P. Sharma
issued on the last date of arguments before the Special Judge
although earlier the investigating officer had stated that sanction
was not required.

7. R.K. Singh filed affidavit denying the allegations of malafide
G
in the High Court. He appeared through counsel and contested
the proceedings throughout.

8. In a letter to Chief Secretary, Bihar after the lodging of FIR
R.K. Singh referred to P.P. Sharma as "gutter rat" and "com-
H mon crockery thief'.
STATE OF BIHAR v. P.P. SHARMA [KULDIP SINGH. J.] 27

Mala fides on the part of investigating officer G.N. Sharma have A
been found by the High Court on the following facts:

1. The· investigating officer deliberately allowed the informant
to withhold the relevant files of BISCO for more than a week
after lodging the FIR.
B

2. The investigating officer adopted a threatening posture
toward P.P. Sharma from the very beginning. Instead of inter-
rogating him the investigating officer demanded that P .P.
Sharma should give his 'safai bayan' (defence statement).

3. P.P. Sharma gave the investigating officer a copy of the writ c
petition along with the anriexures. The annexures were relevant
documents from the records of State Government and BISCO.
The investigating officer refused to take those documents into
consideration on the ground that they were irrelevant. The docu-
ments could have shown the innocence of the respondents.
D
4. The investigating officer did not obtain the sanction of the
State Government before submitting the police-report. He
mentioned in the case diary that no sanction for prosecution
under section 197 Cr. P.C. was required. The sanction under
section 15A of the Essential Commodities Act was also not
E
obtained.

We have given our thoughtful consideration to the facts
enumerated above. We are of the view that the High Court was not
justified in reaching a conclusion from the above facts that R.K. Singh
and G .N. Sharma acted in a biased and ma/a fide manner in lodging the
F
FIR and conducting the investigation. We are intentionally not enter-
ing into any discussion in respect of the facts mentioned above. Suffice
it to say that no reasonable person on the basis of the facts stated
above can come to the conclusion as drawn by the High Court.

Dr. Shankar Ghosh and Mr. R.K. Jain, learned counsel appear-
G
ing for the respondents have vehemently supported the findings of the
High Court to the effect that the composite order granting sanction
under section 197 Cr. P.C. and section 15-A of the Essential Com-
modities Act was vitiated because of non application of mind on the
part of the competent authority. The relevant part of the sanction
order is as under: H
28 SUPREME COURT REPORTS [1991] 2 S.C.R.

"Whereas after going through the papers and case diary,
A available in the Department of Personnel and Administra-
tive Reforms Department File No. 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
Code (Act 45 of 1860) and in violation of provision of
8 Fertiliser Control Order 1985 under Section 7 of the Essen-
tial Commodities Act, prima facie case is made out to start
prosecution against the accused Shri P .P. Sharma, I.A.S.
Chairman, Sone Command Development, Agency, the
Managing Director, Biscomaun, Patna in the Gandhi
Maidan P.S. Case No. 970/88 ...... "

c "And therefore, in the exercise of the powers confer-
red under Section 197 Cr. P.C. 1973 (Act Fert. II of 1974)
and under section 15 of the Essential Commodities Act
195~ prosecution has been sanctioned under section 409/
420/467 /468/471/120 and under Section 7 of the Essential
D Commodities Act."

The sanction under section 197 Cr. P.C. is not an empty forma-
lity. It is essential that the provisions therein are to be observed with
complete strictness. The object of obtaining sanction is that the
authority concerned should be able to consider for itself the material
E before the investigating officer, before it comes to the conclusion that
the prosecution in the circumstances be sanctioned or forbidden. To
comply with the provisions of section 197 it must be proved that the
sanction was given in respect of the facts constituting the offence
charged. It is desirable that the facts should be referred to on the face
of the sanction. Section 197 does not require the sanction to be in any
F particular forni. If the facts constituting the offence charged are not
shown on the face of the sanction, it is open to the prose~ution, if
challenged, to prove before the court that those facts were placed
before the sanctioning authority. It should be clear from the form of
the sanction that the sanctioning authority considered the relevant
material placed before it and after a consideration of all the circum-
G stances of the case it sanctioned the prosecution.

In the present case the investigation was complete on the date of
sanctiori.and police reports had been filed before the Magistrate. The
sarictioning autlioiity has specifically mentioned in the sanction order
that the papers ahd the case diary were taken into consideration before
H graiiiiiig the s:iricticiii. Case tii~ry is a complete record of the police
STATE OF BIHAR v. P.P. SHARMA [KULDIP SINGH, J.] 29

investigation. It contains total material in support or otherwise of the
A
allegations. The sanctioning authority having taken the case diary into
consideration before the grant of sanction it cannot be said that there
was non application of mind on the part of the sanctioning authority. It
is nobody's case that the averment in the sanction order to the effect
that case diary was taken into consideration by the competent autho-
rity, is incorrect. We, therefore, do not" agree with the finding of the B
High C~urt and set aside the same.

The findings of the High Court that no offence is made out
against the respondents under the Essential Commodities 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 indi-
cated above.
c

. We have reproduced the FIR lodged by R.K. Singh. It is indis-
putable that assuming the facts contained in the FIR to be correct,
prima facie offence is made out against the respondents. We have also
gone through the police reports and the case diary wlllch have been D
annexed along with the counter filed by the respondents. We are
satisfied that the High Court 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 Court assumed extraordinary jurisdiction under E
Article 226/227 of the Constitution 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 Court
did not even permit the Special Judge to pronounce the orders.

The Directors of the firm who are also accused persons in this F
case had approached the Rajasthan High Court for the quashing of the
·FIR and prosecution against them. The Rajasthan High Courfdismis-
sed the writ petition with the following order:

"Sri Bhandari states that in this matter Chalan has already
been filed in court. the writ petition had, therefore, G
become infructuous. the writ petition is dismissed as having
become infructuous. No order as to costs."

The above order was brought to the notice of the Patna High
Court but the High Court refused to be persuaded to adopt the same
course. We are are of the considered view that at a stage when the H
30 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A police report under section 173 Cr. P.C. has been forwarded to the
Magistrate after completion of the investigation and the material col-
lected by the investigating officer is under the gaze of judicial scrutiny,
the High Court would do well to discipline itself not to undertake
quashing proceedings at that stage in exercise of its inherent jurisdic-
tion. We could have set aside the High Court judgment on this ground
B alone but elaborate argument having been addressed by the learned
counsel for the parties we thought it proper to deal with all the aspects
of the case.

We, therefore, allow the appeals, set aside the judgment of the
High Court and dismiss the writ petitions filed by the respondents
before the High Court.
c
K.RAMASW AMY, J. Investigation of a crime is not of a
routine duty, in particular in intractable terrains of high places com-
mitted with dexterity and sophistication. The unfounded threat of
ma/a /ides or bias often deter a sincere and dedicated invetigator to
D make indepth investigation causing catastrophic incursion on the ~
effectivity to connect the offender with crime which would serve the
detractor's 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
E 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
no repetition. To focus on the questions stemmed from the findings of
the High Court, I state only few facts thus:
F
The Bihar State Co-operative 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 _, '
G Directors on July 30, 1988 and appointed R.K. Singh, l.A.S. as its
Administrator and Managing Director. During the course of the dis-
charge of his duties, he noted financial irregularities committed 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
fl information before the Station House Officer, Gandhi Maidan Police
STATE OF BIHAR v. P.P. SHARMA [RAMASWAMY, J.] 31

Station, Patna on September I, 1988, Shorn of the details the sub- A
stratum of the accusations made against them is that they conspired
+ with the Rajasthan Multi Fertilizers Private Limited (for short 'the
Company') through its partners named therein to cause wrongful gain
to the Company 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 B
the Company and without routing through the official channel and
without inviting tenders from open market, the contract was finalised.
The prevailing retail price of 'Suraj' brand of the Company itself was
Rs.2,000 per M.T., but contracted to pmchase at Rs.2,509.60 per
M.T. In terms of the contract the Company 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 or
c
Central Government. If the fertilizers were found to be of substan-
dard, the same were to be taken return of at the CompanY's 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
Company to supply 2500 M.Ts. of fertilizers. Fertilizers' Inspectors D
were to the have the fertilizers tested in terms of the Fertilizers Con-
trol Order. Instead, the agent of the Company had taken the Fertili-
zers for chemical examination in Rajendra Agricultural University,
Bihar. The report said to have been given by Dr. S.N. Jha, Associat.e
Professor of Soil Science of the University, was fabricated by one S.N.
Sahoo, an Assistant in the department who is one of the accused; E
payments were made in undue haste and further order to supply of 450
M.Ts. was made by G.D. Misra. 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 not contain
the full weight, instead of returning the stock, a resolution ·was
obtained from the Managing Committee to convert unsold old stock as F
HARBAHAR. When a specific request for conversion of the stock
supplied by the Company for conversion as HARBAHAR was' turned.
out by the Managing Committee, yet the resolution was fraudulentiy
used to destroy the evidence of supply of substandard and spurious
fertilizers and converted into Harbahar and fabricated the records in
furtherance thereof. These in substance are the accusations punishable G
under ss. 409, 420, 467, 468 and 471 read withs. 120B of ihe Indian
Penal Code and s. 7 of the Essential Commodities Act and the
Fertilizer Control Order. G.N. Sharma, Addi. Superintendent of
Police, C.B.C.l.D. investigated into and collected the evidence and
filed two chargesheets, one under the relevant provisions of the Indian
Penal Code and the other ur.der s. 7 of the Essential Commodities Act H
32 SUPREME COURT REPORTS [1991] 2 S. C.R.

A before the Special Judge, Economic Cases and the Chief Judicial
Magistrate, Patna in chargesheets Nos. 102 and 103 of 1988 respetively
but the cognizance of the offence is yet to be taken. My learned
brother referred the findings of the High Court to quash the F.I.R. and
the charge-sheets and the contentions of the counsel on either side.
Hence I am omitting them except to refer to some of them wherver it is
B necessary.

Undoubtedly, the arms of the High Court are long enough, when
exercises its prerogative discretionary power under Art. 226 of the ~:
Constitution, to reach injustice wherever it is found in the judicial or
quasi-judicial process of any court or Tribunal or authority within its
C 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 court is the crucial question, in particular on ma/a fides of the
complaint or investigating officer and on merits.

D To appreciate the respective contentions, it is necessary to have
before us the operational spectrum from the relevant provisions in the
Code of Criminal Procedure, 1973, for short "the Code". Section 2(n)
of the Code and s. 40 of the Indian Penal Code defined the term
"Offence means any act or omission which includes a thing made
punishable under the Indian Penal Code, or any special or local laws
E with imprisonment for a term of six months or upwards whether with
or without fine. Therefore, an act or omission or a thing made punish-
able by the Penal Code or under any special or local law is an offence
punishable under the relevant law. Sec. 154 in Chapter XII of the
Code, contemplates laying of information of cognizable offences
either orally or in writing to an offencer of a police station who is
F 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 non-cognizable cases without an order of the Magistrate con-
cerned under s. 155(2). But if the facts disclose both cognizable and
G non-cognizable offence, by operation of sub-s. 4 of s. 155 the case shall
be deemed to be congnizable case and the police officer shall be
entitled to investigate, without any order of the Magistrate, into non-
cognizable offence as well. Section 156 gives statutory power to a
competent police officer or a subordinate under his direction to
investigate into cognizable offences. In cases of cognizable offences
H receipt or recording of a first information report is not a condition
STATE OF BIHAR v. P.P. SHARMA [RAMASWAMY, J.] 33

precedent to set in motion of criminal investigation. Section 157 pro-
A
.., vides the procedure for investigation. If the police officer incharge of
the Police Station, on receipt of information or otherwise, has reason
to suspect the C<!mmission of a cognizable offence and is empowered to
investigate into, he shall proceed in persOn or shall depute one of his
subordinate officers not below the rank of the prescribed officer to the
spot to investigate the facts and circumstances and if necesary to take B
measures for the discovery and arrest of the offender. The provisos (a)
and (b) thereof give power, in cases of minor offences to depute some
• other subordinate officer or if the investigating officer is of the opinion
that there is no sufficient ground for entering on investigation he shall
not investigate the case.

Investigation consists of diverse steps- (1) to proceed to the spot; c
(2) to ascertain the facts and circumstances of the case; (3) discovery
and arrest of the suspected offender; (4) collection of evidence relating
to the commission of the offence which may consist of (a) the examina-
tion 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) D
the search of places and seizure of things necessary for the investiga-
tion 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 consequence thereof, so much of information
relating to discovery of facts to be proved. (Sec. 27 of the Indian
Evidence Act). E

---' On completion of the investigation, if it appears to the investi-
gator that there is sufficient evidence or reasonable ground to place
the acused for trial, the investigating officer shall forward to the court
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 F
there is no sufficient evidence or reasonable grounds connecting the
accused with the commission of the offence he may forward the report

.. ~
to the Magistrate accordingly. The Magistrate is empowered to con-
sider the report and on satisfying that the accused prima facie commit-
ted the offence, take cognizance of the offence and would issue pro-
cess or warrant to the accused, if on bail, to appear on a date fixed for G
trial or to commit him for trial to the court of session. It is not incum-
bent upon the Magistrate to accept the report of the investigating
officer that there is no sufficient evidence or reasonable ground to
connect the accused with the commission 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 H
34 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A aware of certain facts or itself or through a subordinate Magistrate to
make further enquiry or to take cognizance of the offence upon consid-
eration of the material so placed before him and take further steps as
aforesaid. Then only proceedings in a criminal case stands com-
menced. Taking cognizance of the offence is coterminus to the power
of the police to investigate in the crime. Until then there is no power to
B the Magistrate except on a private complaint in a cognizable/non-
cognizable offence to direct the police to investigate into tile offence.
The Magistrate is not empowered to interfere with the investigarion by
the police. In King Emperor v. Khawaja Nazir Ahmad, 71 Indian
Appeals, 203 the Judicial Committee of the Privy Council held that
"the function of the judiciary and the police are complementary, not
overlapping" and "the court's functions begin when a charge is prefer-
c red before it, and not until Ihen". In Jamuna Chaudhary v. State of
Bihar, [1974] 3 SCC 774 this Court held:

"The duty of the investigating officer is not merely to bols-
ter up a prosecution case with such evidence as may enable
D the court 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 known as "Case Diary" under s. 172 of the
Code. The entries in the case diary are not evidence nor can they be
E used by the accused or the court unless the case comes under s. 172(3)
of the Code. the court is entitled for perusal to enable it to find out if
the investigation has been conducted on the right lines so that
appropriate directions, if need be, given and may also provide mate-
rials showing the necessity to summon witnesses not mentioned in the
list supplied by the prosecution or to bring on record other relevant
F material which in the opinion of te court will help it to arrive at a
proper decision in terms of s. 172(3) of the Code. The primary duty of
the police, thus is to collect and sift the evidence of the commission of
the offence to find wheth~r the accused committed the offence or has
reason to believe to have committed the offence and the evidence
. available is sufficient to prove the offence and to submit bis report to
G the competent Magistrate to take cognizance of the offence.

In S.N. Sharma v. Bipen Kllmar Tiwari & Ors., [197013 SCR 946
this Court held that s. 159 primarily meant to give to the Magistrate
the power to direct an investigation in cases where the police decides
not to investigate the case under proviso to s. 157(1) and it is in those
H cases that, if he thinks fit, he can choose to enguire into it by himself or
STATE OF BIHAR v. P.P. SHARMA [RAMASWAMY, J 1 35

direct the subordinate Magistrate to enquire into and submit a report.
A
Section 159 intends to give a limited power to the Magistrate to ensure
~ that the police investigate into cognizable offence and do not refuse to
do so for certain limited cases of not proceeding with the investigation
of the offence. The Code gives to the police unfettered power to
investigate all cases where they suspect a cognizable offence has been
committed. In an appropriate case an aggrieved person can always B
seek a remedy by invoking the power of the High Court under Art. 226
of the Constitution. If the court could be convinced that the power of
j. investigation has been exercised by a police officer ma/a fide, a man-
damus can be issued restraining the investigator to misuse his legal
powers. The same view was reitereated in State of Bihar & Anr. v.
J.A. C. Saldanha & Ors., [1980] l SCC 554 wherein this court held that
unless extra-ordinary cases of gross abuse of power by those incharge
c
of the investigation is made out, the Court should be quite loath to
interfer~ at the stage of investigation. A field of activity is reserved for
police and the executive. '!'his Court also noted that it is a clear case of
usurpation of jurisdiction by the High Court, that vested in the Magis-
).-- trate to take or not to take cognizance of the case on the material 0
placed before him. The High Court committed grave error by making
obsevations on seriously disputed questions of facts taldng its clue
from affidavit, which in such a situation hardly provides any reliable
material. This Court also noted that the interference or direction,
virtually amount to a mandamus to close the case before the investiga-
tion is complete. In State of West Bengal v. Sampat Lal, (1985] 1 SCC E
317 at 336 para 26 this c.o.urt held that the court has residuary power to
give appropriate directions to the police when the requirements of law
are not being complied with and investigation is not being done pro-
perly or with due haste and promptitude.

In Municipal Corporation of Delhi v. Purshotam Dass Jhunjunwala F
& Ors., (1983] 1SCC9 this Court found that clear averments have been
made regarding the active role played by the accused respondents and
the extent of their liability, it cannot be said that complaint was vague

-•
and that the High Court was absolutely wrong in holding that the
allegations in paragraph 5 therein were vague. Accordingly the order
of the High Court quashing the proceedings under s. 482 was set aside. G

In Abhinandan Jha & Ors. v. Dinesh Mishra, [1967] 3 SCR 668
this Court held, preceding introduction of s. 173(8) of the Code that
the Magistrate cannot direct the police to submit a chargesheet and
compel the police to form a particular opinion on investigation and to
submit a report according to such opinion. If the police submits a H
36 SUPREME COURT REPORTS [ 1991] 2 S . C.R.

A,
report that there is no case made out for sending up the accused for
trial, the court itself may take cognizance 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 conduct 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
B registering the crime if no expeditious investigation for unexplained
reasons was done the Magistrate or the High Court, on satisfying the
grounds, may direct completion of the investigation within a reason-
able time.

In Nazir Ahmed's case (supra) the Judicial Committee held that
the functions of the judiciary and the police are complementary, not
c over-lapping and the combination 'of individual liberty with due obse-
rvance of law and order is only to be obtained by leaving each to
exercise its own functions.

The Code demarcates the field of investigation exclusively to the
D executive to be vigilant over law and order. Police officer has statutory
power and right as a part to investigate the cognizable offence
suspected to have been committed ·by an accused and bring the offen-
der to book. In respect thereof he needs no authority from a Magis-
trate or a court except to the extent indicated in sub-s. 3 of s. 156, the
superintendence sparingly over the investigation and the matters inci-
E dental thereto, like enlarging the accused on bail or to secure his
presence for further investigation; to record judicial confession under
s. 164 of the Code or to conduct identification parade of the accused or
the articles of crime or recording dying declarating under s. 32 of
Evidence Act.

F 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 prosecntion
entails with acquittal. The duty of the investigating officer, therefore, ,
G is to ascertain facts, to extract truth from half-truth or grabled version,
connecting the chain of events. Investigation is a tardy and tedious
process. Enough 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
H crimes are committed in secrecy with dexterity and at high places. The
STATE OF BIHAR v. P.P. SHARMA [RAMASWAMY, J.l 37

investigating officer may have to obtain information from sources dis-
A
closed or undisclosed and there is no set procedure to conduct investi-
-{ gation to connect every step in the chain of prosecution case by collect-
ing the evidence except to the extent expressly prohibited by the Code
or the Evidence Act or the Constitution. In view of the arduous task
involved in the investigation he has been given free liberty to collect
the necessary evidence in any manner he feels expedient, on the facts B
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 mountainous information, recognised behaviourial pat-
terns and above all, to co-ordinate the efforts of different people
associated with various elements of the crime and the case, are essen-
tial. Diverse methods are, therefore, involved in making a successful c
completion of the investigation.

From this perspective, the function of the judiciary in the course
of investigation by the police should be complementary and full free- .
dom should be accorded to the investigator to collect the evidence D
connecting the chain of events leading to the discovery of the truth,
viz., the proof of the con1n1ission 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 conduct
indept investigation to discover truth while keeping in view the indi-
vidual liberty with due observance of law. At the same time he has a E
duty to enforce criminal law as an integral process. No criminal justice
system deserves respect if its wheels are turned by ignorance. It is
never his business to fabricate the evidence to connect the suspect with
the commission of the crime. Trustworthiness of the police is the pri-
mary insurance. Reputation for investigative competence and indivi-
dual honesty of the investigator are necessary to enthuse public confi- F
dence. Total support of the public also is necessary.

The focal point from the above background is whether the
chargesheets are vitiated by the alleged ma/a /ides on the part of either
_, of the complainant. R.K. Singh or the Investigating Officer G.N.
Sharma. In Judicial Review of Administrative Action by S.A. De- G
smith, 3rd Edn. at p.293 stated that "the concept of bad faith in
relation to the exercise of statutory powers comprise 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 conferred. His intention may be to promote
another public interest or private interest. A power is exercised H
38 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

malaciously if its repository is motivated by personal animosity
A towards those who are directly affected by its exercise. The adminis-
trative discretion means power of being administratively discreet. lt imp-
lies 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 satisfic.; ot the immediacy of official action on
B his or its part. His responsibility lies only to the superiors and the
Government. The power to act in discretion is not power to act ad-
arbitrarium. It is not a despotic power, nor hedged with arbitrariness,
nor 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 concerned in conflict
with law. When the power was exercised ma/a fide it undoubtedly
c gets vitiated by colourable exercise of power.
Mala fides means want of good faith, personal bias, grudge, obli-
que 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,
D whether it is done negligently or not. An act done honestly is deemd to
have been done in good faith. An administrative authority must,
therefore, act in a bona jiue manner and should never act for an
improper motive or ulterior puqA;ses or coutrary to the requirements
of the statute, or the basis of the circumstances contemplated by law,
or improperly exercised discreth.Jil to aLhieve some ulterior purpose.
E The determination of a plea of mu/11 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 conditions of a valid exercise of administrative
power.

F The action taken must, therefore, be proved to have been made
mala fide for such considerations Mere assertion or a vague or bald
statement is not 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 takeu ma/a fide for any such con·
siderations or by fraud on power or culourable exercise of power, it J.
G cannot be allowed to stand.

Public adminis1ratiuH ca;lliul iM ca;ded on in a spirit of judicial
detachment. There is a very \lide•au5 c ui discretionary administrative
acts not importing all in.plied duly to i.cc judicially though the act must
be done in good faith tO"wnicit legal pwiccdon will be accorded. But
H the administrative act dehors judicial flavour does not entail
STATE OF BIHAR v. P.P. SHARMA [RAMASWAMY, J.J 39

compliance with the rule against interest and likelihood of bias. It is
A
implicit that a complainant when he lodges a report to the Station
House Officer accusing a person of commision of an offence, often
may be a person aggrieved, but rarely a probono publico. Therefore,
inherent animosity is licit and by itself is not tended to cloud the
veracity of the accusation suspected to have been committed, provided
it is based on factual foundation. B

In Sirajuddin etc. v. State of Madras etc., [1970] 2 SCR 931 this
Court held that before a public servant, whatever be his status, is
publicly charged with acts of dishonety which amounts to serious mis-
demeanour or misconduct, there must be suitable preliminary enquiry
into the allegations by a responsible officer. Lodging a First Informa-
tion Report without enquiry against an officer occupying a top position c
in a department would do incalculable harm not only to the officer in
particular but to the department he belongs to, in general, Enquiry
Officer must not act in any pre-conceived idea of guilt of the persons
whose conduct 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 D
conviction of the said person by adopting the measures which are
doubtful validity or sanction. The means adopted no less than the end
to be achieved must be impeccable. The aim of Code is to secure a
conviction 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 no one should be put to unnecessary harassment on a E
trial unless there are good and substantial reasons for holding it. On
the facts in that case the Court 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
conduct on the part of the Investigating Officer was found to be unfair. F
. In this case no such 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 Mudholkare, J. in
a separate, but concurring judgment at page 86 and 87 held that even
in the absence of any prohibition in the Code, express or implied, a G
preliminary enquiry before listing the offence was held to be desirable.
In this view, though it was desirable io have preliminary inquiry done,
the omission in this regard by the Administrator or to obtain adminis-
trative sanction before laying the First Information Report would at
best be an irregularity, but not a condition precedent to set in motion
the investigation into the offence alleged against the respondents. H
40 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

It is a settled law that the person against whom ma/a [ides or bias
A, was imputed should be impleaded eo-nominee 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 condemning a person without an opportunity. Admittedly,
B both R.K. Singh and G.N. Sharma were not impleaded. On this
ground alone the High Court should have stopped enquiry into the
allegation of ma/a [ides or bias alleged against them. Nothing has been
alleged, nor brought to our notice that preceding laying the complaint
before the police, R.K. Singh, bad any personal animosity against the
respondents. Nothing has also been brought to our notice, nor alleged
either in the High Court or in this court that after his filing the comp-
c laint he had any say in the investigation conducted by the Investigating
Officer or exercised any pressure to investigate the case in any particu-
lar way to secure the conviction of the respondents. The only allega-
tion relied on by the High Court :, that R.K. Singh before laying the
First Information Report did not look into certain documents or did
D not deliver them up for a week to the Investigating Officer. Had he
considered things would be favourable to the respondents and that no
adminisirative sanction was obtained. That by itself in our considered
view would not lead to any irresistable conclusion that R.K. Singh was
actuated with any personal bias or ma/a [ides against Sharma or Dutt.
At the most it may be said that he had not properly exercised his
E discretion before laying the complaint. Equally no personal bias was
alleged to the Investigating Officer nor found in this regard by the
High Court. The ground on which reliance was placed and found
acceptable to the High Court is that when the documents said to be
favourable to the respondents were brought to his notice, he did not
investigate into those facts on the ground of being "irrelevant". Free
F from bias is an integral part of the principles of natural justice. When
bias was imputed to be existed, he ought not to take part in a decision
making process. Police Officer has a statutory duty to investigate into
the crime suspected to have been committed by the accused, by collect-
ing necessary evidence to connect the accused with the crime. Investi-
gator exercises no .iudicial or quasi-judicial duty except the statutory
G function of a ministerial nature to collect the evidence. With his
expertise, skill or knowledge he has to find whether the accused com-
mitted 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 notice of the higher authorities or the court at
the earliest, of the circumstances or on the grounds on which he
H believed that the Investigating Officer is actuated with malice and
STATE OF BIHAR v. P.P. SHARMA [RAMASWAMY, J.] 41

impartial investigation cannot be had. If he allows the Investigating
Officer to complete the investigation and the report submitted, it A
amounts to his waiving the objection and he would not be allowed to
impeach the chargesheet on the ground of the alleged bias or ma/a
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 or B
grounds 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 court to consider how far it has effected materially
the result of the trial. The evidence collected during investigation
would be subject to proof as per Evidence Act and tested by cross-
examination. The reasonsing of the Courts below that if an autho-
rity does not act impartially or in good faith then a reasonable C
mind can definitely infer the bias for reason best known to the
authorities is too wide a statement of law in the context of police/
Investigating Officer.

In State of Bihar v. I.A. Saldana, AIR 1980 SC 326=[1980) 1 D
sec 554 it was held that though ma/a 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 Court that the ma/a fides of the
Investigating Officer was established by him subsequent conduct, of E
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 counter affidavit and to appear in the pro-
ceedings on behalf of the state. No exception should be taken to this
course and under no circumstances it should be deduced to be a ma/a F
fide act. Undoubtedly when it was brought to the notice of the
Investigating Officer of the existence of certain documents that throw
doubt on the complicity of the accused, it would be salutary that he
would also investigate into those aspects vis-a-vis the evidence in his·
possession to find whether they would throw any doubt on the commis-
sion of the offence alleged or otherwise. The omission to investigate G
into those aspects, by no stretch of imagination would be inferred to be
a ma/a fide act. It may be a bona fide opinion. Undoubtedly, this court
held that ma/a fides on the part of the complainant would be a factor to
be gone into. But no decided case that a charge-sheet was held to be
vitiated by ma/a fides due to omission to exercise statutory power was
brought to our notice. The allegation of ma/a fide and bias more often H
42 SUPREME COURT REPORTS [1991) 2 S.C.R.

made easily, than proved. (Investigation is a delicate pains taking and
A
dextrous process. Ethical conduct is absolutely essential for investiga-
tive professionalism. Ethics can be defined as the practical normative
study of the rightness and wrongness of human conduct.) The police
investigator faces the most frequent and immediate ethical pressures.
Despite many a stress associate\! with the enforcement and investiga-
B tion 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 no conviction is worth sacrificing
one's personal and professional integrity. The .allegation of ma/a 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
C deter an honest and efficient Investigating Officer to probe an indepth
investigation into the crime. The result would be that the crime re-
mains 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 ma/a fides
D or bias it is salutary and an onerous duty and responsibility of the
court, not 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 court.

E It is undoubted that no-one should unnecessarily be harassed or
face an ordeal of criminal trial unless sufficient materials are collected
during the investigation disclosing the crime committed. (The Investi-
gating Officer is not 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
F by the court at the trial. The Investigating Officer is exoected to in-
vestigate justly and fairly, but the evidence collected at the investiga-
tion is not he 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 verac-
ity of the evidence collected during the investigation.
G
Malice in law could be inferred from doing of wrongful act inten-
tionally 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 not established from the omission to consider some
documents said to be relevant to the accused. Equally reporting the
H commission of a crime to the Station House Officer, cannot be held to
STATE OF BlHAR v. P.P. SHARMA [RAMASWAMY, J.] 43

be a colourable exercise of power with bad faith or fraud on power.) lt A
may be honest and bona fide exercise of power. There are no grounds
ma de out or shown to us that the first information was not lodged in
good faith. State of Haryana v. Bhajanlal, J.T. (1991) 4 SC 655 is an
authority for the proposition that existence of deep seated political
vendetta is not a ground to quash the F.l.R. Therein despite the
attempt by the respondent to prove by affidavit evidence corrobprated B
by documents of the ma/a fides and even on facts as alleged no offence
was committed, this court declined to go into those allegations and
relegated the dispute for investigation. Unhesistingly I hold that the
findings of the High Court that F.l.R. gets vitiated by the ma/a fides of
the Administrator and the chargesheets are the results of the ma/a
fides of the informant or investigator, to say the least, is fantastic and
obvious gross error of law.
c
The contention of Sri R K. Jain, the learned Sr. Counsel is that
when the evidence collected during the investigation was not unim-
peachable, the prosecution and continunance of the proceedings are
only a step in the process of harassment to the respondents, offending D
their right to life and livelihood enshrined under Art. 21 of the Con-
stitution. The question is whether, the impugned actions would offend
Article 21 of the Constitution. Atticle 21 assures every person tight to
life and personal liberty. The word personal liberty is of the widest
amplitude covering variety of rights which goes to constitute personal
liberty of a citizen. Its deprivation shall be only as per procedure E
prescribed in the Code and the Evidence Act conformable to the man-
date of the Supreme law, the Constitution. The investigator must be
alive to the mandate of Art. 21 and is not empowered to trample upon
the personal liberty arbitrarily, though the Code gives unfetterd power
to investigate in.to the supsected cognizable offence imputed to an
accused. The gravity of the evil to the community resulting from anti- F
social activities or commission of the grave crime by itself would not
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 constitution. The observance of the proce-
dure, therefore, is an assurance against want assaults on personal
liberty. G

An investigating officer who is not sensitive to the constitutional
mandates, may be prone to trample upon the personal liberty of a
person when he is actuated by ma/a fides. But as stated the aeilsed, at
the earliest should bring to the notice of the court of the personal bias
and his reasonable belief that an objective investigation into the crime H
44 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

would not be had at the hands of the investigator by pleading and
A proving as of fact with necessary matrerial fac,ts. If he stands by till the
chargesheet was filed, ii must be assumed that he has waived his objec-
tion. He cannot turn down after seeing the adverse report to plead the
alleged ma/a fides. (Equally laying the information before the Station
House Officer of the commission of cognizable crime merely sets the
B machinery if the investigation in motion to act in accordance with the
procedure established by law.) The finding of the High Court, there-
fore, that the F.I.R. charge-sheet violate the constitutional 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 court and under
c 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
sarvant not removable from his office save by or with the
D sanction of the Government is accused of any offence
alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty, no
Court shall take cognizance of such offence except with the
previous sanction-
,
E (a) in the case of a person who is employed or, as the case
may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of the
Union, of the Central Government;

(b) in the case of a person who is employed or, as the case
F may be, was at the time of commission of the alleged
offence employed, in connection with the affairs of a State,
of the State Government.

Other sub-sections are not relevant. Hence omitted.

G Similarly s. 15-A of the Essential Commodities Act reads thus:

"Prosecution of public servants.-Where any person who
is a public servant is accused of any offence alleged to have
been committed by him while acting or purporting to act in
the discharge of his duty in pursuance of an order made
H under s. 3, no court shall take cognizance ofSuch offence
STATE OF BIHAR v. P.P. SHARMA [RAMASWAMY. J.] 45

except with the previous sanction:
A
(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
commission of the alleged offence employed in connection
with the affairs of the Union;
B
(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
commission of the alleged offence employed in connection
with the affairs of the State."

The emphasis laid in both the sections are that no court shall take
cogizance of offence against a public servant alleged to have commit- c
ted while acting or purpo~ted 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 D
sections intended to immune a public servant who discharges his duties
honestly and diligently from the threat of prosecution. Honest dis-
charges 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.
E
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 grie-
vance of an aggrieved person. Sometimes while discharging or pur-
ported to discharge the public duty, the officer may honestly exceed F
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. G

The offending act must be integrally connected with the dis-
charge of duty and should not be fanciful or pretended. If the act
complained 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 canopy H
46 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

A 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 not every offence committed by a public servant
that requires sanction for prosecution, nor even every act done by him
B while he actually engaged or purported to have engaged under colour
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 connected with the duty. Sanction then would be neces-
say, irrespective of whether it was in fact a proper discharge of his duty
or not is a matter of defence on merits, which would be considered at
C the trial and could not arise at the time of grant of sanction which must
precede taking cognizance of the prosecution. Therefore, there must
be reasonable connection between the acts complained and discharge
or purported discharge of the official duty, the act or omission must
bear such a relation to the duty that the accused could lay reasonable,
nexus between the offending act or omission and the duty but not a
D pretended or fanciful claim that he did it in the course of the perfor-
mance of his duty. It is no part of the duty of a public servant to enter
into conspiracy; to fabricate the records; falsification of the accounts;
fraud or misappropriation or demand and acceptance of illegal gratifi-
cation though the exercise of power given him an occasion to commit
the offences. In K. Satwant Singh v. State of Punjab, (1960] 2 SCR 89
E this court held that the act of cheating or abatement thereof has no
reasonable connection with the discharge of the official duty or that he
did >O ;n the course of performance of his duty. The same was
)..
reiterated in Harihar Prasadv. State of Bihar, (1972] 3 SCC 89.

In S.B. Saha v. Kochar, (1980] 1 SCR 111 this Court held that
F offence under ss .. 409 and 120B cannot be held to have been committed
while acting or purporting to act in the discharge of the official duty
and have no reasonable connection and bear no direct connection 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. >
G
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 commis-
sion of offence charged for and that the appropriate Government
would apply their mind to those facts". The order of sanction only is
H an administrative act and not a quasi-judicial one nor is a !is involved.
STATE OF BlHAR v. P.P. SHARMA [RAMASWAMY, J.] 47

Therefore, the order of sanction need not contain detailed reasons in
A
support thereof as was contended by Sri Jain. But the basic facts that
constitute 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 con-
tended for the respondents does not arise. Proper application of mind
to the existence of a prima facie evidence of the commission of the B
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 per-
formed. The burden is heavier on the accused to establish the contra 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 consideration thereof to the subject the grant c
or refusing to grant sanction was made by the appropriate authority.
At any time before the Court takes cognizance of the offence the order
of sanction could be made. It is settled law that issuance of the process
to the accused to appear before the court is sine quo non of taking
cognizance of the offence. The emphasis of s.197(1) or other similar D
provisions that "no court shall take cognizance of such offence except
with the previous sanction" posits that before taking cognizance of the
offence alleged, there must be before the court the prior sanction
given by the competent authority. Therefore, at any time before tak-
ing cognizance of the offence it is open to the competent authority to
grant sanction and the prosecution is entitled to produce the order of E
sanction. Filing of charge-sheet before the court without sanction per
se is not illegal, nor a condition 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 considered them and then granted
sanction. No evidence has been placed before us to come to a different
conclusion. Accordingly we hold that the High Court committed F
manifest error of law to quash the charge-sheet on those grounds.

The another crucial question is whether the High Court, in exer-
cise of its extra-ordinary jurisdiction under Art.226 of the Constitu-
' tion,. would interfere and quash the chargesheet. The High Court
found that the documents relied on by the respondents/accused were G
not denied by the State by filing the Counter Affidavit. Therefore,
they must be deemed to have been admitted. On that premise the High
Court found that there is no prima facie case was made out on merits
and chances of ultimate conviction is "bleak". The court is not passive
spectator in the drama of illegalities and injustice. The inherent power
of the court under Art. 226 of the Constitution of India is permitted to H
48 SUPREME COURT REPORTS [ 1991) 2 S.C.R.

be resorted to. When the documents relied on by the respondents
A
"demonstrate that no prima fade offence is made out on the face value
of those materials, then the criminal prosecution should not be ,_
allowed to continue 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
B approached this C..ourt and this court in these circumstances has no
option 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 consequence
would ensue. Quashing the chargesheet even before cognizance is
taken by a criminal court amounts to "killing a still born child". Till
the criminal court takes cognizance of the offence there is no criminal
c proceedings pending. I am not allowing the appeals on the ground that
alternative remedies provided by the Code as a bar. It may be relevant
in an appropriate case. My view is that entertaining the writ petitions
against charge-sheet and considering the matter on merit in the guise of
'
prima facie evidence to stand on accused for trial amounts to pre-trial
D of a criminal trial under Articles 226 or 227 even before the competent -./
Magistrate or the Sessions Court takes cognizance 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 dalay the trial by diverse tricks. It is not to suggest that
E under no circumstances a writ petition should be entertained. As was
rightly done by Rajasthan High Court in this case at the instance of the
directors of the company, wisdom lies to keep the hands back and ).
relegate the accused to pursue the remedy under the Code. In several
cases this Court quashed the criminal proceedings on the sole ground
of delay. In a case, F.I.R. filed in 1954 for violation of the provisions
F of the Customs Act and Foreign Exchange Regulation Act was c:hal-
lenged in the Allahabad High Court. It was deliberately kept pending
in the High Court and in this Court till 1990. The accusation was
violation of law by named persons in the name of non-existing firm.
The F.I.R. was quashed in the year 1990 by another Bench to which I
was a Member solely on the ground of delay. He achieved his object of ,,
G avoiding punishment. This would show that an accused with a view to
delay the trial, resorts to. writ proceedings, raises several conntentions
including one on merit as vehemently persisted by Sri Jain to consider
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
H trail and relevancy. If proved to be true and relevant that they may
STATE OF BIHAR v. P.P. SHARMA [RAMASWAMY. J.J 49

serve as a defence for the respondents at the trial. The State quite
A
legitimately and in my view rightly did not choose to file the Counter
affidavit denying or contradicting the version of the respondents, in
those documents. The commission of offence cannot be decided on
affidavit evidence. The High Court has taken short course "in annihilat-
ing 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 B
on merits. Grossest error of law has been committed by the High
Court in making pre-trial of a criminal case in exercising its extra-
ordinary jurisdiction under Art. 226. After the charge-sheet was filed,
the F.l.R. no longer remains sheet achor. The charge-sheet and the
evidence placed in support_thereof from the base to take or refuse to
take cognizance by the competent Court. It is not the case that no
offence has been made out in the charge-sheets and the First Informa- c
tion Report. It is, therefore, not necessary to consider all the decisions
dealing with th\' 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.
D
The decision of this court, strongly relied on, namely State of
West Bengal v. Swaran Kumar, [1932] 3 SCR 121 is of no assistance to
the respondents. In that ca5e it was found that the First Information
Report did not disclose the facts constituting the offence.

Madhaorao J. Scindhia v. Sambhaji Rao, [ 1988] 1 SCC 692 also E
does not help the respondents. In that case the allegations constitute
civil wrong as the trustees created tenancy of Trust property to favour
the third party. A private complaint was laid for the offence under
s. 467 read withs. 34 ands. 120B LP .C. which the High Court refused
to quashed under s. 482. This court allowed the appeal and .quashed
the proceedings on the ground that even on its own contentions in the F
complaint, it would be a case of breach of trust or a civil wrong but no
ingredents 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 Court interfered and allowed
the appeal. This Court found thus:
G
"The court cannot be utilized for any oblique purpose and
where in the opinion of court chances of an ultimate con-
viction is bleak and, therefore, no useful purpose is likely
to be served by allowing a criminal prosecution to con-
.tinue, the c.ourt may while taking into consideration the
special facts of a case also quash the proceedings even H
50 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

though it may be at a preliminary stage."

A Therefore, the ratio therein is of no assistance to the facts in this case.
It cannot be considered that this court 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 conviction 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 Sirajiddin's case the Madras
,
B High Court and this Court, though noticed serious infirmity commit-
ted in the course of investigation by the investigating officer did not
quash the charge-sheet.

I am contrained to hold that the learned Judges have committed
gravest errors of Jaw in quashing the F.I.R. and Charge-sheets. Since
c the proceedings are yet to start I decline to go into the merits of the
respective contentions, though vehemently argued by Shri R.K. Jain,
on merits, and Kapil Sibal in rebuttal since expressing any view either
way would gravely prejudice the case of the accused or the prosecu-
tion. The appeals are allowed with no order as to costs.

D R.S.S. Appeals allowed.

'