BHANWAR SINGH SHEKHAWAT Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This criminal miscellaneous petition u/Sec. 482 Cr.P.C. is directed against order dated 3.10.2007 passed by the Special Judge, Anti Corruption, Jodhpur whereby the complaint filed by the respondents alleging commission of offences u/Secs. 420, 467, 468, 471 and 120 IPC read with section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 (in short, "the Act") has been referred for investigation to the Additional Superintendent of Police, Anti Corruption bureau (ACB), Jodhpur u/Sec. 156(3) of Cr.P.C. Learned counsel for the petitioner contended that Section 156 relates to investigation into cognizance offences and the Magistrate empowered u/Sec. 190 can only direct investigation u/Sec. 156(3) Cr.P.C. on being satisfied that the complaint filed prima facie discloses commission of a cognizable offence. It is submitted that a Court of Special Judge cannot be termed to be a Magistrate so as to exercise the power u/Sec. 156(3) Cr.P.C. In this regard, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "Moly & Anr. vs. State of Kerala, 2004 4 SCC 584".

(2.) Learned counsel urged that the offence u/Sec. 13(1)(d)(ii) is not a cognizance offence and therefore, the Special Judge had no jurisdiction to refer the matter for investigation u/Sec. 156(3) to the Additional Superintendent of Police, A.C.B.

(3.) It is next contended that the investigation ordered by the Special Judge is of no consequence inasmuch as, the Special Judge can take cognizance of the offence only if a sanction is granted by the appropriate authority u/Sec. 19 of the Act. It is submitted that in the instant case, the Court has initiated the proceedings at the instance of a private party by way of complaint filed which is politically motivated. Learned counsel urged that before registering the crime, there must be suitable preliminary inquiry by a responsible officer and the crime should be registered only if the preliminary inquiry prima facie reveals the commission of the offence by the public servant. In support of his contention, learned counsel has relied upon a decision of the Kerala High Court in the matter of "Biju C. Vallavanadan vs. State of Kerala, 2004 4 CriCC 651".