State of Haryana v. Harvinder Pal Alias Pinki and Anr

INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANAoAT CHANDIGARH ooo CRM-M-7559-2021 DateoofoDecision:ooo09.09.2025 STATEoOFoHARYANA ...oPetitioner Versus HARVINDERoPALo@oPINKIoo&oANOTHER ...Respondents CORAM:o HON'BLEoMR.oJUSTICEooJASJIToSINGHoBEDI Present: Mr.oVipuloSherwal,oAAG,oHaryanao forotheopetitioner. Mr.oSakshamoDudeja,oAdvocateo(LegaloAidoCounsel) fororespondentoNo.1. Ms.oDeepika,oAdvocateoforo Mr.oSandeepoGoyal,oAdvocateo fororespondentoNo.2. Mr.oH.S.oRandhawa,oAdvocateo(AmicusoCuriae). **** JASJIToSINGHoBEDI,oJ. TheoprayeroinotheopresentopetitionounderoSectiono482oCr.P.C.oois foroquashingoofotheoimpugnedoorderodatedo20.01.2020opassedobyotheoAddl. Sessions o Judge, oYamuna o Nagar o at o Jagadhri o in o case o FIR o No.11 o dated

10.12.2014oregisteredounderoSectionso7,o8o&o13oofotheoP.C.oActoatoPolice StationoStateoVigilanceoBureau,oPanchkulaowherebyodirectionsohaveobeen givenotootheoInvestigatingoOfficerothroughotheoPublicoProsecutorotoo"applyofor formalosanction"oagainstooS.I.oNareshoKumar.

¶2Theopresentocaseounderosectionso7,8oando13oofoPreventionoof CorruptionoAct,o1988o(hereinafteroreferredotooaso'theoAct'),owasoregisteredoon theoallegationsomadeobyocomplainant/respondentoNo.2-JaspaloSinghoalleging thatoheowasopickedoupofromohisoshopobyoSIoNareshoKumaroono28.10.2014oand broughtotooSpecialoStaff,oJagadhriowhereoheowasoconfinedotillo29.10.2014, though,onoocaseowasoregisteredoagainstohim.oHeowasoattributedoallegationsoof dealingowithostolenovehicles.oOno29.10.2014oSIoNareshoKumaroinquiredoifothe complainant/respondentoNo.2oknewoPinkioBindraoofoAmbala.oOnoreplyingoin theoaffirmative,oSIoNareshoKumaromadeohimospeakowithoPinkio@oHarvinder PalowhoocameotooSpecialoStaff,oJagadhri.oHarvinderoPaloaliasoPinkioBindra afterotalkingotooSIoNareshoKumaroaskedotheocomplainant/respondentoNo.2oto payoRs.10,00,000/-oforobeingoreleased.oAfteronegotiation,otheoamountowas settledoatoRs.4,00,000/-oandotheocomplainant/respondentoNo.2owasosetofreeoon theoassuranceoofoaccusedoHarvinderoPaloaliasoPinkioBindra.oThereafter, accusedoHarvinderoPalostartedopressurizingotheooocomplainant/respondentoNo.2 foropaymentotoobeomadeotooSIoNareshoKumar.ooTherefore,oono10.12.2014oon theowrittenocomplaintomadeobyotheocomplainant/respondentoNo.2otootheoState VigilanceoBureau,oaotrapowasolaidowhereinoaccusedoHarvinderoPaloaliasoPinki BindraowasocaughtoredohandedowhileoacceptingoRs.1,00,000/-otowardsopart payment o of o said o amount o from o the o complainant/respondent o No.2. o The statementoofocomplainant/respondentoNo.2owasogotorecordedounderoSection 164oCr.P.C.owhereinoheoreiteratedotheosaidoallegations.oDuringoinvestigationoof theocase,otheodisclosureostatementoofoaccusedoHarvinderoPaloaliasoPinkioBindra wasoalsoorecordedoandoafterocompletionoofotheoinvestigationoinotheocase, initiallyotheochargeosheetooounderosectionso7,8oando13oofoActowasofiledoagainst accusedoHarvinderoPaloaliasoPinkioBindraowithoSIoNareshoKumarobeing retainedoinocolumnono.2.o

¶3Subsequently,oaoformalocancellationoreportounderoSectiono173(8) Cr.P.C.oogivingoaocleanocheatotooSIoNareshoKumarowasofiled.oNoticeoofothe aforesaidocancellationoreportowasogivenotootheocomplainant/respondentoNo.2 whooinitiallyofiledoaoprotestopetitionoono12.07.2017oandowhileotheosameowas under o consideration, o the ocomplainant/respondent o No.2 oalso o filed o an applicationounderoSectiono193oCr.P.C.oforotakingocognizanceoagainstoSIoNaresh Kumar.o

¶4OnotheobasisoofotheofindingsoarrivedoatoinotheoreportounderoSection 173(8)oCr.P.C.oexoneratingoS.I.oNareshoKumaroandotheoapplicationounder Sectiono193oCr.P.C.ofiledobyotheodeofactoocomplainant/respondentoNo.2-Jaspal Singh,otheoCourtoofoAddl.oSessionsoJudge,oYamunaoNagaroatoJagadhriotook cognizanceoagainstotheoaccusedovideoorderodatedo20.01.2020.oTheooperative partoofotheoorderoisoreproducedoasounder:- "19.oTheoaforesaidocircumstancesoonorecordoproveothatothereois sufficientomaterialoavailableoonotheofileoforotakingocognizance against o SI o Naresh o Kumar. o In o view o of o the o aforesaid circumstances,otheocancellationoreport/reportounderoSection 173(8) oCr.P.C.o filed oby otheopoliceoand oforwarded oby othe prosecutionoexoneratingoSIoNareshoKumarostandsorejectedoand application o under o Section o 193 o Cr.P.C. o filed o by o the complainant/JaspaloSinghostandsodisposedoof.

20.oHowever,oasoperosectiono19oofotheoPreventionoofoCorruption Act,otheoCourtoisoprecludedofromotakingocognizanceoagainstoan accusedowhooisoaopublicoservant,owithoutoaovalidosanctionoofothe competentoauthority.oAccordingly,otheoinvestigatingoofficer,oDSP SureshoKumar,othroughotheoPublicoProsecutoroisodirectedoto apply o for o formal o sanction o against o SI o Naresh o Kumar o for commissionoofooffenceopunishableounderosectionso7,o8oando13oof theoPreventionoofoCorruptionoAct,o1988owithinoaoweekofrom todayounderointimationotoothisoCourt.oTheolearnedoPublic Prosecutoroisodirectedotooinformoinvestigatingoofficer,oDSP SureshoKumar."

¶5TheoaforementionedoorderohasobeenochallengedobyotheoStateonot onotheomeritsoofotheocaseobutoonlyoonotheogroundsothatodirectionsotootheoPublic Prosecutorotoo'applyoforoformalosanction'oagainstoS.I.oNareshoKumarocouldonot haveobeenoissuedobyotheoCourt.

¶6TheolearnedocounseloforotheoStateocontendsothatotheodirections issuedoinoparao20oofotheoimpugnedoorderocouldonotohaveobeenoissuedobyothe concernedoCourtoasoitolayoinotheoexclusiveodomainoofotheoappropriate sanctioningoauthorityoitselfotooeitherograntosanctionoororejectotheosame. Therefore,otheoimpugnedoorderodatedo20.01.2020oisoliableotoobeosetoaside. RelianceoisoplacedoonotheojudgmentsoinooDeepakoSandhuoVersusoPunjabo& HaryanaoHighoCourtoChandigarhothroughoitsoRegistraroGeneraloandoothers, CWP-32881-2024,odecidedoono04.02.2025o and oDr.oJaswantoSinghoVersus StateoofoPunjabo&oanother,o2006(4)oR.C.R.o(Criminal)o525.o

¶7The o learned o counsel o for o the o respondent o No.1, o respondent No.2/complainantoJaspaloSinghoandotheoAmicusoCuriae,oonotheootherohand, furtherocontendothatotheodirectionsoissuedoinoparao20oareonototootheoeffectothat formalosanctiono'mustobeogranted'obyotheoappropriateoauthorityobutothe directionsoareoonlyotootheoeffectothatoDSPoSureshoKumarothroughotheoPublic Prosecutoroisodirectedotoo'applyoforograntoofosanction'.oItoisoaolimited mandamusotootheoauthoritiesotooapplyoforosanctionoandothereoisonoomandamus directingotheoappropriateoauthorityotoo"grantosanction".oThisodistinctionois crucialoandotherefore,otheoimpugnedoorderocannotobeofaulted.oRelianceois placedoonotheojudgmentsoinoTheoStateoofoPunjaboVersusoPartapoSingh,o2024 AIRoSupremeoCourto3299o and oArunoAggarwaloVersusoStateoofoMadhya Pradesho&oothers,o2011oAIRoSupremeoCourto3056.

¶8Iohaveoheardotheolearnedocounseloforotheoparties.

¶9Beforeoproceedingofurther,oitowouldobeoappositeotooreferotoothe judgmentsoreliedouponobyotheoStateoandotheosameoareodiscussedohereinbelow:- InoDeepakoSandhuo(supra),othisoCourtoheldoasounder:- "4.oWhatofollowsofromotheoaforesaidolawolaidodownobyoApex Courtoisothatoasoregardsotheoissueoofograntoororefuseotoogrant sanctionoforoprosecution,otheodomainoofodiscretionoavailableoto theocompetentoauthorityocannotobeoforeclosedobyoissuingowritoof mandamusoorodirectionobyoaosuperiorocourt,oespeciallyoinothe limitedodiscretionaryoandoplenaryojurisdictionounderoArticleo226 ofotheoConstitutionoofoIndia,owhichohasoitsoownorestrictionsoand self o imposed o inhibitions. o The o discretionary o power o of o the competentoauthorityotoodecideoforooroagainstograntoofosanctionofor prosecutionocannotobeousurpedoorotakenoawayowhileoexercising poweroofojudicialoreview."o (Emphasisosupplied) o In oDr.oJaswantoSingho (supra),othisoCourtoheldothatotheoCourt couldonototakeocognizanceoforowantoofosanctionoevenoifoitoformedoaoviewothat thereowasoe iden!eoa$ainstotheoa!!used.o (0.oo ,heojud$mentsoreliedoupono1yotheorespondentsoandotheoAmi!us %uriaeoareodis!ussedoherein1elow:A 5notiheoStateoo+oPunjabo-supra.,otheoHonH1leoSupremeo%ourtoheld asounder:A "2. Brief facts of the case are that on 25.04.2016, an FIR u/s 7/13

(2) of the P.C Act was lodged against Respondent; Dr. Partap Singh Verka and another co;accused i.e. 'Vikas', at Police Station Vigilance Bureau, Amritsar. It was disclosed in the FIR that the present respondent was working as a doctor in Guru Nanak Hospital at the relevant point of time when complainant;Gurwinder Singh sought treatment for his brother who was in jail. The complainant alleged that on 20.04.2016 the Respondent took a bribe of Rs.10,000 from the complainant through the accused;Vikas for admitting the complainant's brother in his hospital, as he was otherwise reluctant to treat a prisoner. Again on 24.04.2016, the respondent demanded another Rs.10,000/; to keep the patient in the hospital for further treatment and asked the complainant to give that amount to the other accused i.e. 'Vikas' in two installments of Rs.5,000 each. The complainant, however, contacted the Vigilance Bureau instead and the officials of Vigilance laid a trap to catch the culprits. On 25.04.2016, the accused;Vikas (ward attendant) was caught red;handed in the parking lot of the hospital receiving Rs.5000 from the complainant. On the same day, the respondent was also arrested from his office.

¶3In May 2016, both the accused were released on bail. A charge; sheet dated 22.12.2016 was later filed only against the other accused;Vikas. The present respondent was not named in the charge;sheet as an accused

¶4However, during the course of the trial, the complainant; Gurwinder Singh deposed as PW;1 on 12.05.2017 and in his examination;in;chief, he said that it was the present Respondent who had demanded the bribe and it was on his behalf that the other accused, Vikas had received the bribe amount. The trial Court deferred the hearing on the request of the Public Prosecutor of the State who then wanted to move an application under Sectiono319oof the CrPC for summoning the respondent as an accused. Consequently, an application was moved by the State on 18.05.2017 under Sectiono319oCrPC, which was allowed on 20.05.2017 and Dr. Partap Singh Verka was summoned to face the trial.

¶5The accused Respondent challenged this order of the Trial Court before the High Court which has set aside the order of the Trial Court, as sanction under Sectiono19oof the P.C Act had not been taken. ***** ***** *****

¶11It is a well settled position of law that courts cannot take cognizance against any public servant for offences committed under Sectionso7,o11,o13o&o15oof the P.C. Act, even on an application under sectiono319oof the CrPC, without first following the requirements of Sectiono19oof the P.C Act. Here, the correct procedure should have b een for the prosecution to obtain sanction under Section o 19 o of the P.C Act from the appropriate Government, before formally moving a n application before the Court under Section o 319 o of CrPC. In fact , the Trial Court too should have insisted on the prior sanction, which it did not. In absence of the sanction the entire procedure remains flawed. We are completely in agreement by the decision of the High Court and therefore are not inclined to interfere with the impugned order passed by the High Court and accordingly this appeal is hereby dismissed. (Emphasis supplied) 5no1runo1ggar*alo"supra&,otheoHonH1leoSupremeo%ourtoheldoas under:A ;3. The brief factual matrix relating to this appeal is as follows: The respondent No. 2, Shri. Raghav Chandra, who is a Commissioner of M.P. Housing Board, Bhopal along with respondent No. 3, Shri. Shahjad Khan, posted as the then Collector, Katni, Jabalpur and respondent No. 4, Shri. Ram Meshram, posted as the Land Acquisition Officer, M.P. Housing Board, Bhopal, whilst, discharging their functions, had allegedly entered into conspiracy and made a secret plot with Shri. B.D. Gautam, the Director of Olphert Company and, subsequently, purchased the land belonging to Olphert Company at higher rates for the M.P. Housing Board, thereby, caused a financial loss of over Rs. 4 Crores to the Government. The appellant reported this alleged transaction of purchase of land by the M.P. Housing Board, alleging financial loss to the Government, to the Lokayukta, Bhopal. Subsequently, the Special Police Establishment (Lokayukta), Jabalpur (hereinafter referred to as "the Lokayukta Police") registered an FIR No. 165 of 2002 against accused respondent Nos. 2 to 4, as the alleged act or conduct of the accused respondents, all working as Government Servants, amounts to an offence under Section 13 (1;d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the PCA") and Sectiono120Boof the Indian Penal Code (hereinafter referred to as "the Indian Penal Code"). Accordingly a Criminal Case No. 165 of 2002 was registered against respondent Nos. 2 to 4 in the Court of learned Special Judge. However, the sanction of the Government was necessary as mandated by Section 19 of the PCA in order to prosecute the said accused respondents. Acting upon the complaint of the appellant, the Lokayukta Police, after conducting the investigation, had exonerated respondent Nos. 2 to 4 of all the charges leveled against them and submitted final closure report, under Sectiono169oof the Criminal Procedure Code (hereinafter referred to as "the Criminal Procedure Code"), to the learned Special Judge, Katni as no case had been made out to prosecute respondents. Thereafter, the learned Special Judge, Katni after hearing the respondents, appreciating the evidence on record and perusing the case diary, had rejected the closure report vide his Order dated 26.4.2005. The operative portion of the order dated

26.4.2005 passed by the learned Special Judge is extracted below : "31. In this way from above record produced, evenoprima facie,oit is evident that the accused had made secrete plot (durabhi sandhi) with Shri B.D. Gautam the Director of Olphert Company with conspiracy and purchased land of Olphert Company on higher rate and caused financial loss over four crores to the Government which there are sufficient grounds for taking cognizance against the accused persons.

¶32Accused person Shri Raghav Chandra is posted as Commissioner of M.P. Housing Board and Shri Ram Meshram is posted as Land Acquiring Officer in M.P. Housing Board and Shri Shahjaad Khan while remaining posted as Collector, all above accused persons working as Government servant, while discharging their Government duties, committed above crime under section 19 of Anti Corruption Act 1988, it is necessary to obtain sanction to prosecute Government Servant under section 13 of Anti;Corruption Act. Therefore matter may be taken up seeking necessary sanction to prosecute the accused persons Raghav Chandra, Shri Ram Meshram and Shahjaad Khan to prosecute them under Section 13 (1;d), 13 (2) Anti Corruption Act and under Sectiono120BoIndian Penal Code and for necessary further action, case be registered in the criminal case diary."

¶4Aggrieved by the above observation, respondent Nos. 2 to 4 preferred Criminal Revision Petitions under Sectiono482oof the Criminal Procedure Code before the High Court. The High Court allowed the revision petitions and quashed the Order dated 26.4.2005 of the learned Special Judge on the ground that the Order of the learned Special Judge is illegal and without jurisdiction, in view of the decision of this Court inoAbhinandan Jha v. Dinesh Mishra, AIR 1968 Supreme Court 117,oas the Magistrate cannot impinge upon the jurisdiction of the police by directing them to change their opinion when the closure report had been submitted by the police under Sectiono169oof the Criminal Procedure Code The reliance is also placed on the observation made by this Court in the case ofoMansukh Lal Vithaldas Chauhan v. State of Gujarat, 1997(4) RCR (Criminal) 236owherein it is observed that : "19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority of the facts of the case as also the material and evidence collected during investigation it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. It is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution." **** **** ****

¶6The issue involved in the present appeal for our consideration is: Whether the High Court is justified in treating the operative portion of the Order of the learned Special Judge as a direction issued to the sanctioning authority to sanction the prosecution of the accused respondent Nos. 2 to 4. **** **** ****

10.oWe have heard the learned counsel for the parties before us. The short point in issue before us is based on the nature of the Order passed by the learned Special Judge whether it amounts to a direction issued by the Court to the concerned authority or mere observation of the Court. 11. We will first discuss the nature and scope of the expression 'direction' issued by the Court. This Court inoRameshwar Bhartia v. The State of Assam, 1953 SCR 126owhilst distinguishing the expression 'Sanction' from the 'Direction', for the purpose of initiating the prosecution has held : "15. But where a prosecution is directed, it means that the authority who gives the direction is satisfied in his own mind that the case must be initiated. Sanction is in the nature of a permission, while aodirection is in the nature of a command."o (Emphasis supplied).

¶20To sum up, the direction issued by the Court is in the nature of a command or authoritative instruction which contemplates the performance of certain duty or act by a person upon whom it has been issued. The direction should be specific, simple, clear and just and proper depending upon the facts and circumstances of the case but it should not be vague or sweeping. **** **** ****

¶31In view of above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment.

¶32In the facts and circumstances of the present case,owe are of the opinion that the refusal of the learned Special Judge, vide its Order dated 26.4.2005, to accept the final closure report submitted by Lokayukta Police is the only ratio decidendi of the Order. The other part of the Order which deals with the initiation of Challan proceedings cannot be treated as the direction issued by the learned Special Judge. The relevant portion of the Order of the learned Special Judge dealing with Challan Proceeding reads as "Therefore matter may be taken up seeking necessary sanction to prosecute the accused persons Raghav Chandra, Shri Ram Meshram and Shahjaad Khan to prosecute them under Section 13 (1;d), 13 (2) Anti Corruption Act and under Sectiono120BoIndian Penal Code and for necessary further action, case be registered in the criminal case diary." The wordings of this Order clearly suggest that it is not in the nature of the command or authoritative instruction. This Order is also not specific or clear in order to direct or address any authority or body to perform any act or duty. Therefore, by no stretch of imagination, this Order can be considered or treated as the direction issued by the learned Special Judge. The wholistic reading of this Order leads to only one conclusion, that is, it is in the nature of 'Obiter Dictum' or mere passing remark made by the learned Special Judge, which only amounts to expression of his personal view. Therefore, this portion of the Order dealing with Challan proceeding, is neither relevant, pertinent nor essential, while deciding the actual issues which were before the learned Special Judge and hence, cannot be treated as the part of the Judgment of the learned Special Judge.

¶33In the light of the above discussion,owe are of the opinion that, the portion of the Order of the learned Special Judge which deals with the Challan proceedings is a mere observation or remark made by way of aside. In view of this, the High Court had grossly erred in considering and treating this mere observation of the learned Special Judge as the direction of the Court. Therefore, there was no occasion for the High Court to interfere with the Order of the learned Special Judge.

¶34In the result, the appeals are allowed. The impugned Order and Judgment of the High Court in Criminal Revision No. 821 of 2005, Criminal Revision Petition No. 966 of 2005 and Criminal Case No. 3403 of 2005 dated 22.4.2009 is set aside. We restore the Order of the learned Special Judge dated 26.4.2005.

35.oWeodirectotheorespondentsotoocomplyowithotheoorderopassedobyothe TrialoCourtowithinotwoomonthsofromothisodate." (Emphasisosupplied)

¶11oAoperusaloofotheojudgmentoin oDeepakoSandhuo(supra)owould revealothatotheoDivisionoBenchoofothisoCourtoheldothatoaomandamusocouldonot beoissuedotootheosanctionoauthorityotoograntosanction.o o AsoregardsotheojudgmentoinoDr.oJaswantoSingho(supra)oallothis CourtoheldowasothatotheoCourtocouldonototakeocognizanceoforowantoofosanction evenoifoitoformedoviewothereowasoanoevidenceoagainstotheoaccused.o

¶12Onotheootherohand,otheojudgmentsoinotheocaseoofoStateoofoPunjab (supra)oandoArunoAggarwalo(supra),oitohasocategoricallyobeenoheldothatowhere theoCourtointendsotootakeocognizanceoofoanooffenceothenoitocanodirectothe appropriateoauthorityotoo'applyoforosanction'.oHowever,oquiteorightly,ono directionsocanobeoissuedotootheoappropriateoauthorityotoo'grantosanction'.o

¶13Comingobackotootheocaseoinohand,oaoperusaloofoparao20oof impugnedoorderowouldorevealothatotheoCourtoofoAddl.oSessionsoJudgeoonly directedotheoInvestigatingoOfficerothroughotheoPublicoProsecutorotoo"applyofor formalosanction"oagainstoSIoNareshoKumaroforocommissionoofotheooffence punishableounderotheovariousoprovisionsoofotheoPreventionoofoCorruptionoAct. Noosuchodirectionsohaveobeenoissuedotootheoappropriateoauthorityotoo'grant sanction'oandothereoliesotheocrucialodifference.oTherefore,onoofaultocanobeofound withotheoimpugnedoorder.

¶14Inoviewoofotheoaboveodiscussion,oIofindonoomeritoinotheopresent petition.oTherefore,otheosameostandsodismissed.

¶15Asomanyoaso5o½oyearsohaveoelapsedosinceotheopassingoofothe impugnedoorder.oTherefore,otheodirectionsoissuedoinoparao20oofotheoimpugned orderobeocompliedowithowithinoaoperiodoofo2oweeksofromotheodateoofoaoreceipt ofotheocertifiedocopyoofothisojudgment. (JASJIToSINGHoBEDI)

09.09.2025 JUDGE JITESHo Whetherospeaking/reasoned:-ooYes/No Whetheroreportable:- oooooooooYes/No