Madhya Pradesh High Court
Phool Chand Kol vs The State Of Madhya Pradesh Thr on 6 December, 2017
Bench: Sanjay Yadav, S.K. Awasthi
1
W.P. No. 3420/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
PRESENT:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE S.K. AWASTHI
WRIT PETITION NO. 3420/2017
Phool Chand Kol
Vs.
State of M.P. & Another
For the petitioner : Shri M.P.S. Raghuvanshi,
Advocate
For the respondents : Smt. Nidhi Patankar,
Government Advocate
ORDER
(06.12.2017) Per Justice S.K. Awasthi :
The petitioner has filed this writ petition under Article 226 of the Constitution of India being aggrieved by the order dated 12.05.2017 passed by respondent No.1, whereby sanction to prosecute the petitioner under Section 197 of Cr.P.C has been granted. 2- The relevant facts of the case are that the petitioner was posted as Assistant Director, Fisheries in Shivpuri from year 2004 to 2011. Under a scheme of Government, the boats were to be purchased by the 2 W.P. No. 3420/2017 department and were required to be provided 100% subsidy to the Fishermen Societies in order to provide them self-employment and to encourage, improve and develop the fisheries activities in the State. In pursuance of above scheme, the office of Assistant Director, Fisheries was allotted budget for purchase of 61 boats through the Joint Director, Gwalior, and accordingly file was moved to the Collector for administrative sanction. On the said file, the Collector directed for constitution of purchase committee and five men committee was constituted which consists of Deputy Director Agriculture, Deputy Director Veterinary, Assistant Director Horticulture, Land Superintendent and Manager, M.P. Agro. Thereafter, a tender notice was issued under the direction and control of aforesaid purchase committee. In the year 2008-2009, the applications were received from various fishermen societies which were presented to the purchase committee which opened the same and considered the eligibility and issued purchase order to the M/s Fishermen, Itarsi & M/s Aquatech, Paras City, Bhopal. The purchase committee also verified the boats received on the purchase order and thereafter the same were provided to the beneficiaries for its operation.
Later on, a complaint was filed regarding the purchase of the aforesaid boats stating therein that less gauge iron sheets were used in the boats and on verification the thickness was found to be less then the required one. On the basis of aforesaid complaint, the Collector 3 W.P. No. 3420/2017 constituted a three member committee through Chief Executive Officer, Jila Panchayat. After getting verification, the aforesaid committee has submitted its report to the Collector. On the basis of which, the Collector directed for registration of FIR against the Director, M/s Fishermen, Itarsi and Director, M/s Aqua Tech, Bhopal, who had supplied the aforesaid boats. During the investigation, the petitioner was also implicated in the aforesaid crime on the ground that he was also sent the verification report of the boats supplied by the above firms, thus, a sanction for prosecuting the petitioner under Section 197 of Cr.P.C was requested to be granted by the department. 3- Learned counsel for the petitioner submits that the Fisheries Department has granted permission for prosecution of the petitioner, but the Law and Legislative Affairs Department has opined that there is no evidence against the petitioner and accordingly has rejected the case of the petitioner for grant of sanction for prosecution, thereafter in accordance with the circular issued in the year 2015, the respondents have placed the file before the concerned Minister who has granted permission to prosecute the petitioner. While granting the permission to prosecute the petitioner, special reasons should have been assigned which are not reflected from the impugned order. Thus, the impugned order is non-speaking in nature and same is unsustainable in law. There is no evidence available on record to connect the petitioner with the present crime and the provisions of Section 420 read with Section 34 4 W.P. No. 3420/2017 of IPC are not attracted in the matter. Hence, on these grounds, petitioner prays for setting aside the impugned order.
4- To the contrary, learned Government Advocate for the State opposed the prayer by contending that petitioner had sent the verification report of the boats supplied by the above firms, thus, the sanction for prosecuting the petitioner under Section 197 of Cr.P.C was requested to be granted by the department and the Government duly provided the sanction to prosecute the petitioner and thereafter charge-sheet was submitted by the investigating agency before competent Court. It is further submitted that the allegation regarding cheating has been made against the petitioner, therefore, he is not entitled for getting the protection under section 197 of Cr.P.C. It is further submitted that the petitioner has made physical verification of the boats and after his verification, the payment has been made to the concerned firms, while boats were not as per the requirement of the department as ascertained by the authorities. Initially, the Fisheries Department refused to grant permission for prosecuting the petitioner, thereafter when the file was moved to the Law and Legislative Affairs Department, the sanction was granted after considering the entire material available on record and assigned sufficient reasons for granting such permission. The opinion of two departments were contradictory with each other, therefore, the matter was sent to counsel of ministers committee and that was 5 W.P. No. 3420/2017 duly considered by the said competent committee and granted the sanction for prosecution against the petitioner by following due process of law, hence, the petition filed by the petitioner is misconceived and baseless, therefore, deserves to be dismissed. 5- We have heard learned counsel for the parties at length and perused the record.
6- It is not disputed that the petitioner was holding the post of Assistant Director, Fisheries Shivpuri during relevant period of time. When the department got sanction for purchase of 61 boats in order to provide the Fishermen Society self employment, the Collector constituted a committee for finalization and for specification of the articles, which had to be purchased. The said committee decided that boats must be of the length of 12 x 4 feet, 20 gauge of iron sheet and sifter should be built on teak boat. The petitioner was also the member of the committee, who finalized the specification of boats which had to be purchased. Thereafter, a short term tender was called for purchasing the boats. After receiving the proposals, purchasing committee opened the tender and after accepting the proposal given by M/s Fishermen Itarsi and M/s Aqua Tech, Bhopal, purchase order for 61 boats was issued.
7- After receiving the boats, the verification committee which was constituted by the Collector, verified the boats physically and gave the report that the boats are according to the specification as 6 W.P. No. 3420/2017 determined by the committee. Although, the petitioner was not nominated as a member of verification committee, in spite of that he took part in the process of physical verification of the boats and also signed the verification report. After approval of the verification committee, the payments had been done to the concerned firms, but after that it was found that those boats were not as per the requirements of department as ascertained by the authorities. In these circumstances, it cannot be said that there is no evidence is available on record to implicate the petitioner in the present crime. The sanction of prosecution for the petitioner was sought from the concerned department under Section 197 of Cr.P.C., but the Fisheries department refused to grant sanction for prosecution of the petitioner for the said offence, thereafter, file was moved to the Law and Legislative Affairs Department who after considering the material available on record was of the opinion that there are sufficient evidence available on record for granting sanction of prosecution against the petitioner. The State Government has issued circular No. F/15-01/2014/1-10 dated 05.09.2014, wherein it is determined that; regarding the proceeding for sanction of prosecution under Section 197 of Cr.P.C, if the opinion of two departments are contradictory with each other, then matter would be sent to the counsel of Ministers committee and the said committee can take the decision on the matter regarding the sanction of prosecution 7 W.P. No. 3420/2017 against the concerned employee. In light of said circular, the matter of petitioner was sent to the Council of Ministers committee and after considering the material on record, the said committee granted sanction for prosecution against the petitioner. 8- The State has also filed note-sheet of both the departments. From perusal of note-sheet, it is found that the Law and Legislative department has thoroughly examined the matter and made its opinion that prima- facie material is available for granting sanction of prosecution against the petitioner which was not considered by the Fisheries department. 9- From perusal of the proceedings, it reveals that the council of ministers perused the opinion given by the Fisheries department as well as the department of Law and Legislative Affairs which were to be contradictory with each other. After that the department of General Administration has made summary note with regard to the matter and considering the summary note, the committee was of the opinion that it is a fit case for grant of sanction to prosecute the petitioner for the offence under Sections 420/34 of IPC & Section 5/11 of the Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, 1982. In this situation, it cannot said that the Council of the Ministers committee has not applied its mind before granting the prosecution sanction.
10- In the case of Dr. Subramanian Swamy v. Dr. Manmohan Singh and Anr., AIR 2012 SC 1185, it is 8 W.P. No. 3420/2017 held :
"30. The CVC, after taking note of the judgment of the Punjab and Haryana High Court in Jagjit Singh v. State of Punjab (1996) Crl. Law Journal 2962, State of Bihar v. P. P. Sharma1991 Supp. 1 SCC 222 : (AIR 1991 SC 1260 : 1991 AIR SCW 1034), Superintendent of Police (CBI) v. Deepak Chowdhary, (1995) 6 SC 225 : (AIR 1996 SC 186 :
1995 AIR SCW 3905), framed guidelines which were circulated vide office order No.31/5/05 dated 12.5.2005. The relevant clauses of the guidelines are extracted below:
"2(i) Grant of sanction is an administrative act. The purpose is to protect the public servant from harassment by frivolous or vexatious prosecution and not to shield the corrupt. The question of giving opportunity to the public servant at that stage does not arise. The sanctioning authority has only to see whether the facts would prima-facie constitutes the offence.
(ii) The competent authority cannot embark upon an inquiry to judge the truth of the allegations on the basis of representation which may be filed by the accused person before the Sanctioning Authority, by asking the I.O. to offer his comments or to further investigate the matter in the light of representation made by the accused person or by otherwise holding a parallel investigation/enquiry by calling for the record/report of his department.
(vii) However, if in any case, the Sanctioning Authority after consideration of the entire material placed before it, entertains any doubt on any point the competent authority may specify the doubt with sufficient particulars and may request the Authority who has sought sanction to clear the doubt. But that would be only to clear the doubt in order that the authority may apply its mind proper, and not for the purpose of considering the representations of the accused which may be filed while the matter is pending sanction.
(viii) If the Sanctioning Authority seeks the comments of the IO while the matter is pending before it for sanction, it will almost be impossible for the Sanctioning Authority to adhere to the time 9 W.P. No. 3420/2017 limit allowed by the Supreme Court in Vineet Narain's case."
31. The aforementioned guidelines are in conformity with the law laid down by this Court that while considering the issue regarding grant or refusal of sanction, the only thing which the Competent Authority is required to see is whether the material placed by the complainant or the investigating agency prima facie discloses commission of an offence. The Competent Authority cannot undertake a detailed inquiry to decide whether or not the allegations made against the public servant are true." (Emphasis Supplied) 11- The above observation fully covers the point at issue in the instant case. Thus, it is not possible to hold that the requirement of sanction is contrary to law. 12- In view of the above discussions, we perceive no force in the writ petition. The petition being devoid of any substance, deserves to be and is hereby dismissed. No costs.
(Sanjay Yadav) (S.K. Awasthi)
Judge Judge
Aman