Madhya Pradesh High Court
Prakash Narayan Chaudhari vs The State Of Madhya Pradesh on 14 July, 2021
Author: Vishal Dhagat
Bench: Vishal Dhagat
1 WP-12196-2021
The High Court Of Madhya Pradesh
WP-12196-2021
(PRAKASH NARAYAN CHAUDHARI Vs THE STATE OF MADHYA PRADESH AND OTHERS)
1
Jabalpur, Dated : 14-07-2021
Heard through Video Conferencing.
Shri V. D. S. Chouhan, learned counsel for petitioner.
Shri Pushpendra Verma, learned PL for respondent/State.
Petitioner has filed this petition calling in question order dated 15.6.2021, Annexure P/1, passed by respondent no.3 Chief Executive Officer, Jila Panchayat, Betul. By said order recovery proceeding under Section 92 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as Adhiniyam, 1993) was initiated against petitioner and proposal was made for lodging of F.I.R at Police Station.
Learned counsel for petitioner submitted that order dated 15.6.2021 is arbitrary, illegal and contrary to Rules. Proposal for registration of F.I.R was made without their being any order under Sections 89 and 92 of Adhiniyam, 1993. Respondents cannot register F.I.R due to initiation of recovery proceedings under Section 92 of Adhiniyam, 1993. In view of aforesaid circumstances, learned counsel for petitioner made a prayer for staying of order dated 15.6.2021.
Section 92 of M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993, is quoted below:-
"92. Power to recover records, articles and money. - (1) Where the prescribed authority is of the opinion that any person has unauthorizedly in his custody any record or article or money belonging to the Panchayat, [or Gram Nirman Samiti and Gram Vikas Samiti] [or Committee of Gram Sabha] he may, by a written order, require that the record or article or money be delivered or paid forthwith to the Panchayat [or Gram Nirman Samiti and Gram Vikas Samiti] [or Signature Not Committee of Gram Sabha], in the presence of such officer as may be SAN Verified Digitally signed by MONSI M SIMON Date: 2021.07.19 11:22:38 IST 2 WP-12196-2021 appointed by the prescribed authority in this behalf.
(2) If any person fails or refuses to deliver the record or article or pay the money as directed under sub-section (1), the prescribed authority may cause him to be apprehended anti may send him with a warrant in such form as may be prescribed, to be confined in a Civil Jail for a period not longer than thirty days.
(3) The prescribed authority may-
(a) for recovering any such money direct that such money be recovered as an arrear of land revenue; and
(b) for recovering any such record or articles issue a search warrant and exercise all such powers with respect thereto as may lawfully be exercised by a Magistrate under the provisions of Chapter VII of the Code of Criminal Procedure, 1973 (No. 2 of 1974).
(4) No action under sub-section (1) or (2) or (3) shall be taken unless a reasonable opportunity has been given to the person concerned to show cause why such action should not be taken against him.
[4-A. The case pertaining to recovery of any record or article or money initiated by the prescribed authority shall be disposed of within six months from the date of initiation.] (5) A person against whom an action is taken under this section shall be disqualified to be member of any Panchayat [or Gram Nirman Samiti and Gram Vikas Samiti] [or Committee of Gram Sabha] for a period of [six] years commencing from the initiation of such action." As per the said provision, recovery is to be made in respect of record, article or money belonging to Panchayat which is in custody of member, office bearer of office or servant of Panchayat. Action can be taken against aforesaid officials if person fails to deliver record, article or money as provided under Sub-section (1) and he may be sent to civil jail for period not longer than 30 days. Before passing an order under Section 92(1), 92(2) and 92(3) of Adhiniyam, 1993, opportunity of hearing is to be given to concerned Signature SAN Not Verified Digitally signed by MONSI M SIMON Date: 2021.07.19 11:22:38 IST 3 WP-12196-2021 person to show cause why such action should not be taken against him. No criminality is attached to Section 92 of Adhiniyam, 1993. An employee or official may have any article, money or record in his custody without any mens rea. In such cases order has to be passed for recovery of of record, article or money, but if there is a mens rea on part of concerned official or person, then criminal offence may also be made out against the employee.
Section 154 of Code of Criminal Procedure, 1973 is quoted below:-
"154. Information in cognizable cases.- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence."
In view of aforesaid provisions of law, if competent authority is of opinion that FIR is required to be filed in the case on basis of preliminary enquiry then competent authority can proceed to lodge an F.I.R. Purpose of Section 92 of Adhiniyam, 1993 is only for recovery of article or money and Signature SAN Not Verified Digitally signed by MONSI M SIMON Date: 2021.07.19 11:22:38 IST 4 WP-12196-2021 not to penalize him for his deeds and for dereliction of duty or misconduct. Lodging of F.I.R is completely a different proceeding and there is no bar in lodging of F.I.R until and unless a departmental enquiry is held. Police has to do independent investigation. Guilt of accused is to be proved by prosecution in Court on basis of examination of witnesses and evidence. Conclusion of proceeding under Sections 89 or 92 of Adhiniyam, 1993 cannot be precondition for lodging an F.I.R if authority, on basis of prima- facie material opines to lodge an F.I.R.
In view of same, writ petition filed by petitioner is dismissed.
(VISHAL DHAGAT)
JUDGE
mms
Signature
SAN Not
Verified
Digitally signed by
MONSI M SIMON
Date: 2021.07.19
11:22:38 IST