Prashant Kumar Agarwal, J. - (1.) BY way of this Criminal Misc. Petition under Section 482 Cr.P.C. the petitioners have challenged the order dated 30.10.2013 passed by the Special Judge (CBI Cases) No. 1, Jaipur in Complaint Case No. 1/2013 whereby the learned Court below by dismissing the complaint filed by the petitioners refused to send the same under Section 156 (3) Cr.P.C. for registration of FIR and investigation by CBI.
(2.) BRIEF relevant facts for the disposal of this petition are that the petitioners filed a complaint under Section 200 Cr.P.C. against the respondents before the Court below with the averments that a land measuring 2222.2 sq. yards is situated at Plot No. 26, Panchsheel Marg, New Delhi and the same was leased out on behalf of the President of India on 17.02.1964 by way of a lease -deed to Maharani Manvendra Kaur, Rajmata, Dholpur as per terms and conditions incorporated in the lease -deed for her personal occupation and use and possession of the said land was handed over to her and as per terms and conditions of the lease -deed the land was to remain as a Government property. Subsequently, a letter dated 09.03.1974 came to be issued in favour of respondent -Shri Hemant Singh by Government of India and as per this letter the aforesaid land was transferred in his favour on the same terms and conditions upon which the lease -deed dated 17.02.1964 was executed. As per averments made in the complaint a suit for partition Civil Suit No. 18/2005 was filed by respondent -Shri Dushyant Singh against respondent -Shri Hemant Singh and Smt. Vasundhara Raje in the Court of Additional District Judge (Fast Track) No. 2, Bharatpur and the aforesaid respondents in criminal conspiracy with other respondents and some unknown officials of the Central and State Government fraudulently, dishonestly and by misusing their official position and without any legal authority entered into compromise on 17.05.2007 and by committing fraud upon the aforesaid Court obtained a decree in respect of the land in dispute in their favour and later on the partition decree was got registered by paying only Rs. 10,000/ - as stamp duty, whereas looking to the market value of the property stamp duty to the tune of Rs. 105 crores was to be paid. It was further averred in the complaint that respondent -Smt. Vasundhara Raje, the then Chief Minister of the State of Rajasthan obtained pecuniary advantages and by misuing her official position as Chief Minister by entering into criminal conspiracy with other accused wrongfully, dishonestly and fraudulently grabbed the land in dispute and the aforesaid conduct of the accused -persons is offences punishable under Sections 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption, 1988 (hereinafter to be referred "the Act") read with Section 120 -B, 420, 166, 167, 169, 175, 217, 218, 409, 466, 467, 468, 469 & 471 IPC. The learned Court below after hearing the counsel for the petitioners vide impugned order dated 30.10.2013 dismissed the complaint by recording following reasons: "(1) As per allegations made in the complaint offences under Sections 120 -B, 420, 466, 467, 468, 469 and 471 IPC have been committed in respect of a document produced in a Civil Court in the form of a compromise deed and, therefore, cognizance can not be taken except upon a complaint made by that Court. The petitioners are not entitled to file complaint for the aforesaid offences. (2) As per Section 6A of the Delhi Special Police Establishment Act, investigation cannot be undertaken in respect of offences under the provisions of the Act except with the previous approval of the Central Government where such allegation relates to the employees of the Central Government of the level of Joint Secretary and above and in the present case no such approval has been obtained. (3) For offences punishable under Sections 7, 10, 11, 13 and 15 of the Act by a public servant cognizance cannot be taken by the Court unless prosecution sanction is granted under Section 19 of the Act by a competent authority and in this case no such sanction has been granted." It was observed by the learned Court below that in view of the above reasons, if the complaint filed by the petitioners is sent for investigation under Section 156 (3) Cr.P.C., it would tantamount to violation of the aforesaid legal provisions whereas the aforesaid provisions have been enacted to provide protection to a public servant for acts done by him in bonafide discharge of his duties as public servant. It is to be noted that it was also averred in the complaint that prior to the submission of the complaint in the Court below, petitioners sent a written report by speed post for registration of FIR for aforesaid offences to Director, CBI, New Delhi, but under the influence of the accused, necessary steps were not taken for registration of FIR and investigation.
(3.) IN support of the petition, first of all it was submitted by the learned Senior Counsel for the petitioners that complaint was filed by the petitioners with a prayer to send it under Section 156 (3) Cr.P.C. to CBI to register FIR and to undertake investigation thereupon and, therefore, at this stage of the proceedings prosecution sanction under Section 19(1) of the Act was not required as the same is required only at the stage of taking of cognizance for an offence committed by a public servant under the provisions of the Act. It was further submitted that Court takes cognizance of an offence when it applies his judicial mind to the allegations made in the complaint for the purpose of to proceed further in a particular way, but when the Court merely sends the complaint under Section 156(3) Cr.P.C. for registration of FIR and investigation, it is without taking cognizance and, therefore, it has wrongly been held by the learned Court below that without sanction the complaint is not maintainable. It was submitted that the law laid down by Hon'ble Supreme Court in the case of Anil Kumar & Ors. v. M.K. Aiyappa reported in : (2013) 10 SCC 705 is not applicable at the stage as it is well settled legal position that prosecution sanction is required only at the stage of taking of cognizance and not when complaint is sent for registration of FIR and investigation.;