MOHAMMAD ZIA UL HAQUE Vs. STATE

JUDGEMENT

(1.) This Rule arises on an application under Ss. 397, 401 read with S. 482 of the Code and under Article 227 of the Constitution of India and is directed against order No.32 dated 23.2.80 passed by Shri S. K. Basu, Judge, 4th Additional Special Court, Calcutta. By the said order, the learned Judge rejected the application filed by the petitioner for quashing the proceeding. The application for quashing was filed on three grounds. In the first place, it was stated that Shri K. D. Chakraborty Inspector of Police, C.B.I., S.P., Calcutta is the complainant in this case. He is also the investigating officer. It was contended that it is cardinal principle of nature justice that the person complaining must not be the investigating agency. In the instant case, the said principle of natural justice having been violated, there has been miscarriage of justice and has vitiated the entire proceeding and for the matter of that, the entire proceeding should be quashed.

(2.) The second ground was to the effect that the language of the petition of complainant and the language of the sanction order granted against the accused by the competent authority are verbatim which shows that the sanctioning authority did not apply his mind in granting sanction and the same has been procured by the investigating officer and the draft of the sanction was that of the investigating officer. Thus, there being no valid sanction the Court has got no jurisdiction to take cognizance and as such the proceeding should be quashed. The third ground for quashing, as stated in the petition, was that on a look at the petition of complaint it is evident that there is no prima facie case against the accused and therefore, on that ground also the accused should be discharged and the proceeding should be quashed. The learned Judge negatived all the contentions raised by the accused and rejected the application. Being aggrieved, the accused No.1 has come up to this Court.

(3.) We shall dispose of the first objection last. With regard to the second objection, the learned Judge finds that the petition of complaint was lodged after the sanction for prosecution was accorded by the competent authority. Therefore, it is quite likely that some of the phrases of the sanction order might be borrowed in the petition of complaint by the complainant. Simply for that, it cannot be said that there was non application of mind on the part of the authority according sanction. We do not find any reason to differ from the reasoning offered by the learned Judge and do not think that simply because the words and phrases used in the sanction order and in the petition of complaint are almost similar, it can be said that the sanctioning authority did not apply its mind and as such, the Court ought to have held that the sanction was not a valid one and as such, ought not to have taken cognizance.