Madhya Pradesh High Court
Smt. Richa Pandey vs The State Of Madhya Pradesh on 17 July, 2019
1
MCRC. Nos.19713/19 & 21084/19
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
Case Number & MCRC.No.19713/2019
Parties Name Anita Singh Tomar
Vs.
The State of M.P
&
MCRC. No. 21084/2019
Smt. Richa Pandey & Others
Vs.
The State of M.P. & Another
Date of order 17/07/2019
Bench Constituted Division Bench
Order delivered by Justice Sujoy Paul and
Justice B.K.Shrivastava J.J
Whether approved for No.
reporting
Name of counsels for parties For Applicant: Mr. Sankalp Kocher,
Advocate in MCRC. No.19713/19
For Applicant: Mr. Ravendra Shukla,
Advocate in MCRC. No.21084/19
For respondent-State: Mr. Harjas
Singh Chhabra, G.A.
Law laid down -
Significant paragraph -
numbers
ORDER
(17-07-2019) Per : Sujoy Paul J In these applications filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as 'Cr.P.C.'), the applicants have called in question the legality, validity and propriety of the impugned FIR dated 24-04-2019 recorded in Crime No.16/2019 registered in P.S. Economic Offence Wing, Bhopal. On the joint request of the parties, these matters were analogously heard and are decided by this common order.
Digitally signed by SAIFAN KHAN Date: 18/07/2019 17:29:57 2MCRC. Nos.19713/19 & 21084/19 MCRC. No.19713/19
2. The impugned FIR dated 24-04-2019 is registered against the applicant, the then Tehsildar Churhat, District Sidhi wherein mainly six allegations were levelled against her. The allegations are also made 46 accused persons. The case of applicant is that she in the course of her official duty, gave an inspection report in relation to Sidhi Highway because of which compensation to the tune of Rs.7 crore was quantified whereas the correct quantification comes to Rs.80 lacs. It is further alleged that mutation in favour of ineligible persons was carried out by the applicant/Tehsildar and mutation orders were accordingly passed. This act of illegal mutation was done in order to give benefit to the private individuals for getting compensation from Railways in an illegal manner. The mutation have taken place on the basis of unregistered documents, which is totally impermissible as per law.
3. Shri Sankalp Kocher, learned counsel for the applicant submits that the crux of allegations against the applicant is that she had misused her official power to pass illegal orders, hence FIR is registered against her and other office bearers and beneficiaries, who have taken advantage of purported transactions in question. Learned counsel urged that the applicant has been made a scapegoat because she took strict action against the Land Mafia and other miscreants, who had left no stone unturned to get the applicant transferred from Churhat, District Sidhi. The said persons were annoyed with the applicant because she initiated anti encroachment drive against such vested interests.
4. To bolster aforesaid submission, the stand of the applicant is that she joined at Churhat in the year 2017 and soon thereafter, she identified illegalities in the District Cooperative Central Bank. The Digitally signed by SAIFAN KHAN Date: 18/07/2019 17:29:57 3 MCRC. Nos.19713/19 & 21084/19 applicant accordingly by letter dated 22-12-2017 (Annexure A/2) requested for registration of FIR against one of the borrower of the said Bank namely Ms. Sadhna Pandey w/o Shri Sanjay Pandey. The applicant has filed a report against Sadhna Pandey on 07-03-2018 (Annexure A/3).
5. The applicant undertook the task of passing orders of mutation on the basis of applications filed by the land owner. During this, the applicant came to know upon reading a complaint dated 16-04-2018 submitted by one Shyam Lal Vishwakarma that certain incorrect informations have been furnished to the office of Tehsildar in order to mislead the Tehsildar. The applicant upon reading this complaint came to know that a complete ban exists on the registration of sale deeds in 18 villages. This order of Collector imposing such ban dated 27-11- 2017 is Annexure A/4. The contention of applicant is that upon receiving the said complaint, she immediately asked the Halka Patwari to submit the list of registries as well as mutation case numbers of Village Nakval, which was in due course submitted by Halka Patwari. Copy of complaint of Shyam Lal Vishwakarma is filed as Annexure A/5.
6. The applicant placed heavy reliance on orders dated 19-04-2018 cumulatively filed as Annexure A/6 whereby in exercise of suo motu powers under Section 51 of the M.P. Land Revenue Code, 1959 ('Code'), the applicant recalled the previous orders of mutation. Shri Kocher urged that the aforesaid act of applicant clearly shows that she acted with bonafide and annulled the illegal orders as soon as she came to know about the Collector's order of ban on registry of sale deed dated 27-11-2017. It is averred that no benefit even for the namesake was extended in favour of anyone on the basis of any of the mutation orders. It is highlighted that because of restoration of revenue records, the Land Mafia was annoyed with the applicant and Digitally signed by SAIFAN KHAN Date: 18/07/2019 17:29:57 4 MCRC. Nos.19713/19 & 21084/19 under their pressure, the applicant was transferred from Sidhi to Sheopur by order dated 04-07-2018. Aggrieved, the applicant filed WP. No.15038/18 and this Court stayed the said transfer order. Then the applicant was placed under suspension against which she preferred an appeal before the Appellate Authority. In turn, the Appellate Authority revoked her suspension. She was again transferred to Dindori and was again placed under suspension because she did not join at the place of transfer. At this stage, the applicant filed WP. No.5661/19 and this Court by order dated 10-04-2019 (Annexure A/8) stayed the order of transfer and permitted her to continue at the present place of posting. A detailed complain of Shri Sanjay Pandey dated 15-05-2018 was relied upon to submit that his prayer was to register an FIR against the applicant. The Additional Collector by letter dated 24-05-2018 (Annexure A/10) sought clarification from the applicant regarding allegations made against her and in turn, the applicant submitted her detailed reply dated 25-05-2018. The applicant was placed under suspension by order dated 05-10-2018 and a departmental enquiry was initiated by issuing a charge sheet on 15- 10-2018 (Annexure A/13). The applicant submitted her detailed reply on the strength of which order of suspension was revoked. Shri Kocher submits that by one pretext or another, the applicant has not been allowed to join and as soon as the applicant submitted interim order passed by this Court dated 10-04-2019 before the respondents, the FIR was promptly lodged against her on 24-04-2019. This was done in order to deprive her from joining at Churhat and in order to frustrate the interim order passed by this Court. During the course of hearing, learned counsel for the applicant contended that on the enquiry on the complaint of said Sanjay Pandey, the office of Collector prepared a report dated 08-06-2018 (Annexure A/15). As per this report, the allegations were found to be false and misleading. Registration of impugned FIR amounts to abuse of process of law. If Digitally signed by SAIFAN KHAN Date: 18/07/2019 17:29:57 5 MCRC. Nos.19713/19 & 21084/19 FIR of this nature is allowed to stand against an officer, who has passed orders in discharge of her quasi judicial/judicial function, it would act as a deterrent for all law abiding officers, who are required to pass orders in discharge of their official duties. In the aforesaid factual backdrop, Shri Kocher contended that- (i) the applicant is a "Judge" as defined in Judges Protection Act, 1985 ('Act of 1985'). As per Section 3 of the said Act, the applicant cannot be prosecuted even if for the sake of arguments it is accepted that the applicant had passed erroneous orders of mutation. The said erroneous orders can be nullified in appeal or revision in normal course whereas in the instant case the applicant herself nullified those orders by exercising powers under Section 51 of the Code; (ii) the registration of FIR against the applicant amounts to malice in law. The respondents made serious efforts to dislodge/transfer the applicant from the present place of posting. Since such efforts could not succeed and interim protection have been granted, the respondents lodged FIR in order to place her under suspension; (iii) the whole attempt of registration of FIR is to wreck vengeance. It is a counterblast by Sanjay Pandey to get an FIR registered because the applicant had preferred a complaint against him.
7. In support of aforesaid contention, Shri Kocher placed reliance on 2001 (3) MPLJ 363 (Balram Har Prasad Choubey & Another vs. Aswani Kumar Yadav & Another), 1992 Supp (1) SCC 335 (State of Haryana & Others vs. Bhajan Lal & Others) and (2016) 12 SCC 87 (Devinder Singh & Others vs. State of Punjab).
8. Sounding a contra note, Shri Harjas Singh Chhabra, learned counsel for the respondents supported the impugned FIR. He submits that if on a plain reading of allegations mentioned in the FIR makes out a prima facie case, no interference is warranted by this Curt. At this stage, this Court is not obliged to act as an Investigating Agency Digitally signed by SAIFAN KHAN Date: 18/07/2019 17:29:57 6 MCRC. Nos.19713/19 & 21084/19 nor required to conduct a roving enquiry in the matter. He further submitted that considering the nature of allegations levelled against the applicant and material available on record, her act does not provide her protection under the Act of 1985. Reliance is placed on a Division Bench judgment passed in WP. No.5959/08 (Smt. Meena Mehra vs. Lokayukta Organization & Another) decided on 23-09- 2011. It is urged that the Division Bench has considered the scope of Section 3(1) of Act of 1985 in a case of this nature where the petitioner therein, a Tehsildar (Nazool) was claiming same protection. It is urged that this Court came to hold that no such protection is available for such acts of Tehsildar.
9. Shri Chhabra also placed reliance on (2011) 5 SCC 708 (Sushil Suri vs. C.B.I.), (2018) 3 SCC 104 (Dineshbhai Chandubhai Patel vs. State of Gujarat & Others) and (2018) 5 SCC 718 (State of Tamil Nadu vs. S. Martin & Others). Furthermore, Shri Chhabra urged that the case diary revealed that there are definite allegations against the applicant, which prima facie shows that she had committed an offence. Apart from this, orders in purported exercise of Section 51 of the Code were also passed in order to cover the illegalities committed by the applicant. It was clearly an afterthought on her behalf. The applicant passed the orders in exercise of suo motu power contrary to law. As per Section 51 of the Code before recalling the mutation orders, the applicant was required to take approval from higher statutory authorities and put the other side to notice. Thus, mandatory requirements were not followed because the applicant realized that her misdeed is under scanner and in order to show her bonafides and relieve herself from such deeds, she passed the orders under Section 51 of the Code in a manner, which is totally unknown to law. In nutshell, Shri Chhabra urged that this is not a fit case for interference at this stage. He denied the allegations relating to "malice in law".
Digitally signed by SAIFAN KHAN Date: 18/07/2019 17:29:57 7MCRC. Nos.19713/19 & 21084/19 MCRC. No.21084/19
10. This application filed under Section 482 of Cr.P.C. is also directed against the same FIR dated 24-04-2019 (Annexure A/1). The applicants of this case are alleged beneficiaries of the act of applicant of the previous case.
11. Shri Ravendra Shukla, learned counsel for the applicant submits that the document dated 27-11-2017 (Annexure A/4) is a document relating to proposed acquisition. The name of present applicants do not figure in the list (Annexure A/4). The present applicants have not claimed or received the compensation. Shri Shukla borrowed the other arguments of Shri Kocher and urged that if any illegal order was passed in mutation proceeding by learned Tehsildar, the said orders were passed in exercise of judicial power by learned Tehsildar. If orders were illegal appropriate proceedings could have been taken by the person aggrieved/department before the next higher judicial forum. For passing erroneous orders, which allegedly gave benefit to present applicants, neither Tehsildar nor applicants can be subjected to a criminal case.
12. Parties confined their arguments to the extent indicated above.
13. We have heard the parties at length and perused the record and case diary.
MCRC-19713-2019
14. The applicant in the first case placed reliance on Section 3 of Act of 1985, the relevant portion of which reads under:
"3. Additional Protection to Judges. - (1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when or in the course of, acting or purporting to act in the discharge of this official Digitally signed by SAIFAN KHAN Date: 18/07/2019 17:29:57 8 MCRC. Nos.19713/19 & 21084/19 duty or function."
[Emphasis Supplied]
15. A careful reading of this provision makes it clear that this protective umbrella is in relation to entertaining or continuing any civil or criminal proceedings arising out of discharge of his/her official duty or function. The applicant has approached this Court at the stage of registration of FIR and assailed the said FIR. Indisputably, at present, no Court has entertained or continued any civil or criminal proceedings against this applicant in relation to discharge of her official duty or function. The aforesaid statutory provision, in our opinion, is plain and unambiguous. The provision does not protect the applicant against lodging of FIR or initiation of investigation thereupon. This is trite that when a statutory provision is clear and unambiguous, it has to be given effect to, irrespective of its consequences {See: Nelson Motis vs. Union of India, reported in (1992) 4 SCC 711}. The Division Bench of this Court in the case of Smt. Meena Mehra (supra) opined as under:
"14. There is yet another aspect of the matter. Section 3(1) of the JP Act neither creates any legal bar against investigation into the allegations levelled against a Judge nor contemplates sanction of any authority therefor. In the cases of Aswani Kumar Yadav (2001 (2) MPHT 330), Om Prakash (2004 RN 31) and S.S. Trivedi (2007 (5) MPHT 138), proceedings were quashed at the post-cognizance stage on the ground that Revenue Officer concerned was entitled to protection under S.3(1)(supra) against prosecution in respect of the offences said to have been committed by him in the discharge of his duty. But, as pointed out already, the offending acts in question were allegedly committed by the petitioners in the course of service and not in discharge of his/her duty and without any justification. These precedents are, therefore, distinguishable on facts. Furthermore, as clarified in sub-section (2) of S.3 thereof, sub-Section (1) does not, in any way, take away or abridge the power of the State Government to initiate such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge.
For a ready reference, sub-section (2) may be reproduced below -
"Nothing in sub-sec.(1) shall debar or affect in any manner the power of the Central Government or the State Government or the Digitally signed by SAIFAN KHAN Date: 18/07/2019 17:29:57 9 MCRC. Nos.19713/19 & 21084/19 Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge."
15. Thus, on a careful analysis of the protective provisions of Section 3 of the JP Act, we are of the view that they do not operate as legal bar to investigation into the allegation against any one of the petitioners."
16. Accordingly, we are unable to hold that at this stage Section 3 of the Act of 1985 can be pressed into service. So far judgment of this Court in Balram Harprasad Choubey (supra) is concerned, suffice it to say that in the said case ,question of protection arose at the stage of filing of an application under Section 319 of Cr.P.C. Since, criminal case was admittedly pending in which said application was filed, this Court extended the protection of Section 3 of the Act of 1985. At this stage, Section 3 has no application.
17. The another limb of argument of applicant was that lodging of FIR amounts to malice in law. This argument was developed on the premise that respondents made repeated efforts to transfer and suspend the applicant with a view to deprive her from performance of duties at Churhat, but judicial intervention by this Court made it difficult. To circumvent this situation, the FIR is lodged. On a closure scrutiny of factual matrix of this case shows that said argument is devoid of substance. The impugned FIR has not been lodged by the same department which had passed transfer and suspension orders against the applicant. The applicant could not established any live link between suspension and transfer orders and with the FIR. No nexus could be established between the act of petitioner's parent department and the department which lodged the FIR. In absence of satisfying the "nexus test" the judgment of Devinder Singh (supra) and N.K. Ganguly (supra) are of no assistance to the applicant. It cannot be said that if an officer has signed the judicial orders by putting back date on them after the date of her relieving, in order to validate the mutation orders which otherwise could not have been passed, such act is in discharge of her Digitally signed by SAIFAN KHAN Date: 18/07/2019 17:29:57 10 MCRC. Nos.19713/19 & 21084/19 official duty. The competence of EOW to lodged FIR could not be doubted in the teeth of findings given by Division Bench in case of Smt. Meena Mehra (supra), the relevant portion of which reads as under:
"16. All the relevant aspects relating to competence of the Lokayukt Organization to investigate into the allegations have already been dealt with in U.K. Samal v. The Lokayukt Organization I.L.R. [2011] M.P. 1702. Accordingly, the objection as to competence of the investigation agency to continue with the investigation has no merit or substance. Further, as explained in another Division Bench of this Court in Deo Vrat Mishra v. State of M.P. 2011 (2) M.P.L.J. 365, the form of complaint made to the Lokayukt Organization also does not assume any significance."
18. The principle laid down in aforesaid para which pertains to competence of Lokayukta Organization holds fields in a case of this nature where the FIR is lodged by EOW.
19. A careful reading of FIR shows that there are serious factual allegations against the applicant. It is alleged that despite a clear ban issued by Collector in the year 2017, mutation orders were passed on the basis of agreement to sale. The applicant's contention is that only after passing the said mutation orders she came to know about the said order of ban passed by Collector. This disputed question of fact is a matter of investigation and cannot be gone into at this stage. The allegations against the applicant is that she had passed certain mutation orders in back date after her relieving w.e.f. 04.07.2018. This kind of orders were passed in 28 cases. This was done in order to give benefit to certain persons who are applicants in connected case. The land situated in certain villages were sought to be acquired by department of railway and in lieu of such acquisition, the affected persons were expecting employment. The allegation is that in order to grant personal benefit to those affected persons, mutation orders in an illegal manner have been passed. It is also alleged that applicant made efforts to get certain lands registered in favour of her relatives and for this purpose, forged documents were prepared. Vehicles No. MP-04-CL-8786 and MP-04-CG-9695 were purchased by applicant in the name of some Digitally signed by SAIFAN KHAN Date: 18/07/2019 17:29:57 11 MCRC. Nos.19713/19 & 21084/19 other person, which are being used by her son- Sangram Singh Tomer. If allegations mentioned in the FIR are prima facie treated as correct on its face value, the question of interference does not arise. At this stage, the correctness of allegations cannot be examined by this Court by conducting roving inquiry or a mini trial. In Dinesh Bhai Chandu Bhai Patel (supra) it was made clear by Supreme Court that at the stage of challenge to a FIR, in a proceeding under Section 482 of Cr.P.C., High Court cannot appreciate evidence nor can it draw its own inference from contents of FIR and material relied on. Moreso, when material relied on is disputed. In such a situation, it is within the province of investigation authority to probe and then of the Court to examine questions when charge-sheet is filed alongwith such material as to how far and to what extent reliance can be placed on such material. It was poignantly held that once the Court finds that FIR does disclose prima facie commission of any cognizable offence, it should stay its hands and allow investigating machinery to step into to initiate the probe to unearth the crime in accordance with law. In the case of S. Martin (supra) the Apex Court reiterated the principle laid down in the case of Dinesh Bhai Chandu Bhai Patel (supra). At the cost of repetition, we are unable to hold that allegations mentioned in the impugned FIR, on their face value, do not disclose cognizable offence.
20. We will be failing in our duty if we ignore the argument of Shri Kochar based on the judgment of Bhajanlal (supra). The argument is founded upon the contention that the FIR is based on Sanjay Pandey's complaint and, therefore, it amounts of wrecking vengeance. For this purpose, reliance was placed on Annexure-A/15 dated 08th June, 2018. It was urged that this report shows that allegations made by Shri Sanjay Pandey were found to be incorrect. A careful reading of this document shows that it is in relation to some complaint of Shri Pandey dated 06.12.2017. The said complaint of Shri Pandey is not filed by the applicant. The applicant could not establish even a thread relation between complaint of Shri Pandey and the impugned FIR. The disputed questions cannot be gone into and examined by this Court in exercise of power under Section Digitally signed by SAIFAN KHAN Date: 18/07/2019 17:29:57 12 MCRC. Nos.19713/19 & 21084/19 482 of Cr.P.C. Thus, this contention must also fails.
21. In view of foregoing analysis, we are unable to persuade ourselves with the contentions of the applicant. Applicant could not make out a case for interference on the FIR at this stage. The application deserves to be disallowed.
MCRC-21084-2019
22. As noticed above, as per the FIR, the present applicants are beneficiaries of illegal mutations done by the applicant of previous case. As per the FIR, the said mutations were made with the connivance of applicants of both the cases. Allegations of conspiracy etc. were also made. In view of settled legal position, at present, this Court cannot examine the disputed questions of facts. As per the story narrated in the FIR, we are unable to hold that no case is made out against the present applicants even if allegations mentioned in the FIR are accepted on their face value. In the case of Sushil Suri (supra) it was held that even if full amount in question has been paid to the Bank and there was no financial loss to the Bank, criminal proceedings may continue against the accused persons. Thus, whether present applicants have actually derived any benefit from illegal mutations or they intended to do so etc., is a question needs to examined during investigation/trial . We do not find any reason for interference at this stage and, therefore, the fate of this application must be the same.
23. As a result, both the MCRC-19713-19 & MCRC-21084-2019 are dismissed.
(Sujoy Paul) (B.K. Shrivastava)
Judge Judge
Mohsin/s@if
Digitally signed by SAIFAN KHAN
Date: 18/07/2019 17:29:57