R P KAPUR Vs. DARYAO SINGH

JUDGEMENT

(1.) A case under S. 7 of the Essential Commodities Act 1955 was registered against one S. Kartar Singh and the Sate Orphanage Advisory Board on 18th August 1959, at Police Station Sadar Karnal. Its investigation was entrusted to Ch. Daryao Singh Deputy Superintendent of Police in the records from the office of the State Orphanage Madhuban, Karnal. Subsequently on 28th January 1960 another case (F. I. R. No. 26 of 1960) was registered at Sadar Police Station Karnal at the instance of the said Shri Daryao Singh alleging that funds belonging to the State Orphanage Madhuban Karnal had been embezzled by Shri M. R. Raizada Pt. Jiwan Shankar and Shri R. P. Kapur former Commissioner Ambala Decision and Vice Chairman of the State Orphanage Advisory Board leading to the offences under Ss. 408/409/120b of the Indian Penal Code. On the bases of this report the said Shri R. P. Akpur was arrested on 16th March 1960 by Shri Tarlok Singh Assistant Inspector General of Police who was entrusted with investigation of the case.

(2.) AFTER due investigation this later case was put in the Court of a Magistrate at Karnal. Before its trial could proceed it was transferred to the Court of the Additional District Magistrate (Judicial) Saharanpur by an order of the Supreme Court on the application of Shri R. P. Karpur. The out against any of the accused under Ss. 409 and 120-B Indian Penal Code and accordingly he discharged all of them by his order dated 15th July 1961.

(3.) THEREAFTER on the 25th August 1961, Shri R. P. Kapur instituted the present complaint in the Court of Magistrate at Karnal against the two accused, Ch. Daryao Singh Deputy Superintendent of Police and Shri Tarlok Singh A. I. G. alleging that these two police officers to whom the investigation of the two above-mentioned case (F. I. R. 138 of 1959 and 26 of 1960) was entrusted had committed offences under Ss. 193 211. and 500 Indian Penal Code. since both the accused are public servants and there was nothing in the complaint to disclose that any sanction for their prosecution had been obtained from the competent authority under S. 197 of the Criminal Procedure Code, the learned Magistrate by his order dated 15th September 1961 called upon the complainant to satisfy him that he was competent to take cognizance of the case without sanction for their prosecution having been accorded by competent authority under S. 197, Cr. P. C. For that purpose the proceedings were adjourned to 29th September 1961. Before that date the complainant Shri R. P. Akpur however applied to the Supreme Court under S. 527 Criminal Procedure Code for transfer of the case to a Court outside the State for Punjab. An ex parte order staying the proceedings was passed by their Lordships of the Supreme Court on 25th September 1961. Subsequently on 30th November 1961 when the matter came up before their Lordships after notice to the accused and the State of Punjab the stay order was vacated and the petition for transfer was disposed of with the following observations: "the learned Advocate-General of Punjab has suggested that in case Mr. Kapur applies for transfer of his case to the High Court he would not object to the transfer. His argument is that the point to consider at this stage is merely a point of law and the best thing to do is to obtain decision of the High Court. In case the application is made to the High Court the learned Advocated-General states that he will support the same and Mr. Kapur agrees to this. We have therefore allowed Mr. Kapur to withdraw this application to that he may make an appropriate application to the High Court. " As a result of this order Shri R. P. Kapur approached this Court for the transfer of the case from the Court of the Magistrate 1st Class Karnal to its own file inter alia on the plea that the difficult question of law regarding the necessity of sanction for prosecution of the accused had arisen. His prayer was partly accepted by my learned brother Mehar Singh J. on 28th February 1962 when his Lordship directed that the complaint field by Shri R. P. Kapur against the two police officer Ch. Daryao Singh and Shri Tarlok Singh be transferred to this Court for the limited purpose of dealing with the question whether cognizance of the complaint could not be taken in absence of sanction for prosecution under S. 197, Cr. P. C. The operative part of this order runs as follows: