Madhya Pradesh High Court
Sudhi Ranjan Mohanty vs Union Of India on 24 November, 2016
MCRC-20259-2016
(SUDHI RANJAN MOHANTY Vs UNION OF INDIA)
24-11-2016
Shri Vivek Tankha, learned Senior Counsel assisted by
Shri Praveen Dubey, learned counsel for the petitioner.
Shri J.K. Jain, learned Assistant Solicitor General for
the respondent No.1/Union of India, on advance notice.
Shri K.S. Wadhwa, learned Additional Advocate General for the respondents No. 2 and 3/State, on advance notice.
Heard on admission.
Issue notice to the respondents. Learned counsel appearing on behalf of the respondents have already taken notice, hence, no PF is necessary.
List the case on 19.12.2016, as agreed by learned counsel for the contesting parties. On or before the aforesaid date, reply may be filed.
Also heard on I.A. No.23002/2016, an application for grant of interim relief.
Earlier there was an interim relief in favour of the petitioner in the public interest litigation W.P. No.874/2016. The Division Bench passed following order on 17.10.2016 in the aforesaid public interest litigation :
Shri R.S. Verma, Advocate for the petitioner.
Shri K.S. Wadhwa, learned Additional Advocate General for the respondents/State.
Shri V.K. Tankha, learned Senior Advocate with Shri Praveen Dubey, Advocate for the respondent No.3.
During the course of hearing of this writ petition and after hearing Shri Tankha, learned Senior Counsel appearing for respondent No.3 in detail, we find that on 03.02.2011 Hon'ble Supreme Court in Criminal Appeal No.511/2006 passed the following directions:-
"We feel that the order of the High Court quashing the F.I.R. Cannot be sustained but we decline to give reasons as the learned counsel for the parties apprehend that this may prejudice either of the parties during the course of the proceedings hereinafter. We, however, direct that the matter be investigated afresh and Mr. S.K. Dubey, the learned senior counsel for the appellant State assures that the investigation will be completed within three months.
We also state that the Investigating Officer will keep in mind that every mistake or error committed by an officer need not amount to a criminal act and that in the normal course of official duties mistakes may and do occur. We direct that this aspect will be examined by the Investigating Officer very carefully. We also direct that the respondent will be given all opportunity to project his views and will also be permitted to furnish such documents as are necessary during the course of the investigation."
(emphasis supplied) The aforesaid direction of the Hon'ble Supreme Court is to investigate the matter afresh and to examine and to give respondent No.3 all opportunity to project his views and also to furnish documents which are necessary during the course of investigation. Certain observations are also made by the Supreme Court in the order with regard to the mistake committed by an officer in the normal course of official duties, which may not be a criminal offence.
The grievance of the petitioner is that the order passed by the Supreme Court is not being followed and during the course of hearing on 12.07.2016, even though we questioned the locus standi of petitioner in filing the writ petition we made the following observations in the order passed by us on 12.07.2016 while issuing notice. The observation made by us reads as under:-
"Accordingly State Government to show cause as to why the matter is kept pending and why sanction for prosecution has not been accorded till date."
Shri Tankha, learned counsel appearing for respondent No.3 made a submission to say that influenced by this order and without complying with the observations and mandate of the Supreme Court and without doing anything to conduct the fresh investigation, on the basis of the investigation which was already conducted prior to 03.02.2011, the matter has been forwarded to the competent authority for sanction for investigation. He produces before us a tabulated chart to demonstrate that no fresh investigation or inquiry has been conducted as directed by the Supreme Court and without complying with the mandate of the Supreme Court, in its letter and spirit, merely a formality has been completed.
Even though Shri K.S. Wadhwa, learned counsel appearing for the State Government referred to Annexure R-2/1 to say that investigation was completed and sanction was sought for on 16.05.2011, we find that there is no document or material are available on record to show as to what was done by the investigating officer or the investigating authority after the orders were passed by the Supreme Court on 03.02.2011. Whether the statement of respondent No.3 was recorded after 03.02.2011? Whether he was granted any opportunity to give his say or produce documents after 03.02.2011 and what is the nature of inquiry conducted after 03.02.2011?
Prima facie, the tabulated chart produced by Shri Tankha would go to show that everything was done prior to 03.02.2011 including recording of statement of respondent No.3, which, according to Shri Tankha was undertaken on 21.11.2005. If what has been stated by Shri Tankha is correct, prima facie, it can be held that the mandate of the Supreme Court has not been followed and it seems that influenced by observations made by us on 12.07.2016, just to file reply before this Court, the matter has been referred to the competent authority. It seems that the observation made by us on 12.07.2016 was without taking note of various aspects of the matter which were relevant and which are pointed out on behalf of respondent No.3 today.
That being so, we direct stay of all the proceedings in the matter initiated after 12.07.2016 in the light of observations made by us, as prima facie we find that mandate of the Supreme Court's has not been complied with. The Investigating Officer to demonstrate before us by filing affidavit and documents of the competent investigating officer and show as to how and in what manner the order passed by the Supreme Court on 03.02.2011 is implemented and followed in its letter and spirit. Till then, all further proceedings in the matter shall remain in abeyance.
Even though this is a public interest litigation and locus standi of the petitioner has been questioned, but as certain observations made by us on 12.07.2016 is causing prejudice to the respondent No.3, which cannot be permitted, in the interest of justice, we are constrained to pass the aforesaid order.
List the matter on 21.10.2016."
Thereafter, the aforesaid Writ Petition (PIL) was dismissed vide order dated 25.10.2016 with the following observations:
"9. At the instance of any third person, we are not inclined to go into all these aspects. We may hasten to add that the investigating authority has brought on record material to show that sometimes in the year 2011 the respondent No.3 filed an application before the Supreme Court vide Annexure AR/3 and it was his complaint in the said application, copy of which is available on record, that the investigating authority is not conducting the investigation properly and in violation to the mandate of Supreme Court is proceedings in the matter. We find that the said writ petition was withdrawn by the counsel representing respondent No3. Taking note of all these circumstances, we are of the considered view that, it is not a fit case where at the instance of third person, we should go into various disputed questions between the investigating authority and the respondent No.3 and grant relief to respondent No.3. Respondent No.3 is free to take recourse to such remedy as may be available to him for redressal of his grievances in the matter."
By the aforesaid order, the Division Bench of this Court granted liberty to the petitioner to take recourse of any legal remedy available to the petitioner for redressal of his grievances in the matter. Thereafter, this petition under Section 482 Cr.P.C. has been filed.
During the course of argument, learned Additional Advocate General has admitted the fact that in the subsequent investigation conducted by the agency, after the direction of the Hon'ble Supreme Court issued in SLP, earlier investigation conducted by the agency was also taken into consideration. Learned Additional Advocate General has submitted that the investigating agency was at liberty to take the earlier investigation into consideration because the Hon'ble Apex Court did not quash the earlier investigation and only direction has been made by the Hon'ble Apex Court that the matter be investigated afresh. Learned counsel relied on the judgment of the Apex Court passed in the matter of Vinay Tyagi vs Irshad Ali @ Deepak & Ors, (2013) 5 SCC
762. Learned Senior Counsel appearing on behalf of the petitioner has refuted the aforesaid contention and submitted that the direction of the Hon'ble Apex Court was to conduct denovo inquiry because the word used by the Hon'ble Apex Court is 'matter be investigated afresh.' Learned Senior Counsel relied on the judgment of the Apex Court relied on by the learned Additional Advocate General as well as the judgment passed by the Apex Court in the matter of K. Chandrasekhar, Mariam ... vs The State of Kerala & Others, (1998) 5 SCC 223.
We have perused the order of Hon'ble Apex Court dated February 03, 2011 passed in Criminal Appeal No. 511 of 2006. The Hon'ble Apex Court issued following direction:
"... We, however, direct that the matter be investigated afresh..."
In this view of the matter, in our opinion, all further proceedings in the matter shall be kept in abeyance until further orders.
List the matter on 19.12.2016.
(S.K. GANGELE) (SUBODH ABHYANKAR)
JUDGE JUDGE
vkt