Madhya Pradesh High Court
Raman Dubey vs The State Of Madhya Pradesh on 22 July, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
THE HIGH COURT OF MADHYA PRADESH
W.P. No. 6771/2020
Raman Dubey vs. State of MP
Gwalior, Dated :22/07/2020
Shri Raghvendra Dixit Counsel for the Petitioner
Shri Sankalp Sharma, Counsel for the respondents.
Heard on the question of admission through Video Conferencing.
This petition under Article 226 of the Constitution of India has been filed challenging the order dated 24-2-2020 (Annexure P/1) and Preliminary Enquiry Report dated 20-2-2020 (Annexure P/2).
The facts necessary for the disposal of the present petition in short are that the petitioner is working on the post of Assistant Samiti Prabandhak in the establishment of respondent no.4/Primary Agriculture Credit Co-operative Society, Karahi, Tahsil Karera, Distt. Shivpuri.
Various complaints were received by the respondents with regard to discrepancies in Jai Kisan Rin Mafi Yojana. A preliminary enquiry was conducted by a team under the leadership of S.D.O., Karera, Distt. Shivpuri. The Committee by its report dated 20-2- 2020 (Annexure P/2) gave a finding that certain office bearers of respondent no.4, including the petitioner are responsible for the misappropriation of money. On the basis of the report dated 20-2- 2020, the respondent no.3 has passed the impugned order dated 24-2- 2020, thereby directing to lodge the F.I.R., to file a dispute under THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP Section 64 of M.P. Co-operative Societies Act and to file an application for attachment before award.
Challenging, the enquiry report, as well as the order dated 24- 2-2020, it is submitted by the Counsel for the petitioner that the M.P. Co-operative Societies Act is a complete code in itself. The revenue authorities have no say in the day to day affairs of the Co-operative Society, therefore, the preliminary enquiry conducted by the Committee is without jurisdiction. It is further submitted that no opportunity of hearing was given to the petitioner, therefore, also, the enquiry report is bad in law. It is further submitted that the direction to lodge the F.I.R., filing of dispute under Section 64 of M.P. Co- operative Societies Act, as well as to file an application for attachment before award is without jurisdiction. It is further submitted that a co-ordinate bench of this Court by order dated 19-3- 2020 passed in W.P. No. 6774/2020 in the case of Ravindra Bhargava Vs. State of M.P. has directed that no coercive action shall be taken against the petitioner therein under the guise of the order dated 24-2-2020.
Per contra, the petition is opposed by the Counsel for the State. It is submitted that prior to lodging of F.I.R., the accused no right of audience. Further, the preliminary enquiry report is merely preliminary in nature. By order dated 24-2-2020, the respondent no.
THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP 3 has directed to file a dispute under Section 64 of M.P. Co-operative Societies Act as well as to file an application for attachment before award and the petitioner would get an opportunity of hearing after the dispute under Section 64 and 68 of M.P. Co-operative Societies Act is filed.
Heard the learned Counsel for the Parties. So far as the interim order passed in W.P. No. 6774 of 2020 is concerned, it is well established principle of law that interim orders cannot be treated as a precedent.
The 1st contention of the petitioner is that the Revenue Authorities who are the State Functionaries have no right or jurisdiction to conduct a preliminary enquiry into the affairs of the Co-operative Society, therefore, the preliminary enquiry report dated 20-2-2020 is bad in law.
The contention raised by the petitioner appeared to be very attractive, but on deeper scrutiny, it is misconceived and is liable to be rejected.
The allegations are that various complaints were received with regard to implementation of Jai Kisan Rin Mafi Yojana as well as of misappropriation of money. It is fairly conceded by the Counsel for the petitioner, that Jai Kisan Rin Mafi Yojana is the Scheme of the State Govt., which was to be implemented by the respondent no.4 THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP Society. Thus, in order to verify that whether the Jai Kisan Rin Mafi Yojana is being implemented efficaciously or not and whether there is any misappropriation of money or not, the functionaries of the State always had a right to conduct a preliminary enquiry. The preliminary enquiry by a Committee headed by S.D.O., in the present matter cannot be said to be an encroachment on the rights/jurisdiction of the Society. Under these circumstances, this Court is of the considered opinion, that since, there were several complaints in respect of Jai Kisan Rin Mafi Yojana, which is a scheme of the State Govt, therefore, the functionaries of the State had a right to conduct a preliminary enquiry, and thus, the 1 st contention of the petitioner is hereby rejected.
It is next contended by the Counsel for the petitioner, that the respondent no.3, should not have directed for filing of dispute under Section 64 of M.P. Co-operative Societies Act and the preliminary enquiry report is bad on account of violation of principle of Natural Justice.
The Counsel for the petitioner could not point out any provision of law, which mandates the grant of opportunity of hearing in the preliminary enquiry. The preliminary enquiry is nothing but a fact finding enquiry, so as to find out whether there is any substance in the complaints or not? The findings given by the Committee are THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP not the evidence and no one can be punished or condemned on the basis of preliminary enquiry report. Any finding of guilt recorded by the Committee in preliminary enquiry is not final in nature and the enquiry report is neither a Judgment nor an opinion of an expert. It is merely a fact finding Committee, so that the authorities may apply their minds with regard to the further course of action. The rights and liabilities of the parties are never decided in a preliminary enquiry.
The Supreme Court in the case of Ram Krishna Dalmia v. Justice S.R. Tendolkar, reported in 1959 SCR 279=AIR 1958 SC 538 has held as under :
8..............the only power that the Commission has is to inquire and make a report and embody therein its recommendations. The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must, on the authorities, be drawn, between a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken. Therefore, as the Commission we are concerned with is merely to investigate and record its findings and recommendations without having any power to enforce them, the inquiry or report cannot be looked upon as a judicial inquiry in the sense of its being an exercise of judicial function properly so called and consequently the question of usurpation by Parliament or the Government of the powers of the judicial organs of the Union of India cannot arise on the facts of this case............
THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP The Supreme Court in the case of Subramanian Swamy v. Arun Shourie, reported in (2014) 12 SCC 344 has held as under :
33.3. The Court agreed with the following observations of the Nagpur High Court in M.V. Rajwade: (Baliram Waman Hiray case, SCC p. 450, para 34) "34. ... 'The Commission in question was obviously appointed by the State Government "for the information of its own mind", in order that it should not act, in exercise of its executive power, "otherwise than in accordance with the dictates of justice and equity" in ordering a departmental enquiry against its officers. It was, therefore, a fact-finding body meant only to instruct the mind of the Government without producing any document of a judicial nature. The two cases are parallel, and the decision must be as in Madhava Singh, that the Commission was not a court.
The term "court" has not been defined in the Contempt of Courts Act, 1952. Its definition in the Evidence Act, 1872, is not exhaustive and is intended only for purposes of the Act. The Contempt of Courts Act, 1952 however, does contemplate a "court of justice" which as defined in Section 20, Penal Code, 1860 denotes "a Judge who is empowered by law to act judicially". The word "Judge" is defined in Section 19 as denoting every person--
"Who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive...."
The minimum test of a "court of justice", in the above definition, is, therefore, the legal power to give a judgment which, if confirmed by some other authority, would be THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP definitive. Such is the case with the Commission appointed under the Public Servants (Inquiries) Act, 1850, whose recommendations constitute a definitive judgment when confirmed by the Government. This, however, is not the case with a Commission appointed under the Commissions of Inquiry Act, 1952, whose findings are not contemplated by law as liable at any stage to confirmation by any authority so as to assume the character of a final decision.'"
34. We agree with the view in Baliram Waman Hiray and approve the decision of the Nagpur High Court in M.V. Rajwade. We are also in agreement with the submission of Shri Mohan Parasaran, learned Solicitor General that a Commission appointed under the 1952 Act is in the nature of a statutory Commission and merely because a Commission of Inquiry is headed by a sitting Judge of the Supreme Court, it does not become an extended arm of this Court. The Commission constituted under the 1952 Act is a fact-finding body to enable the appropriate Government to decide as to the course of action to be followed. Such Commission is not required to adjudicate upon the rights of the parties and has no adjudicatory functions. The Government is not bound to accept its recommendations or act upon its findings. The mere fact that the procedure adopted by the Commission is of a legal character and it has the power to administer oath will not clothe it with the status of court. That being so, in our view, the Commission appointed under the 1952 Act is not a "court" for the purposes of the Contempt of Courts Act even though it is headed by a sitting Supreme Court Judge. Moreover, Section 10-A of the 1952 Act leaves no matter of doubt that the High Court has been conferred with the power to take cognizance of the complaint in respect of the acts calculated to bring the Commission or any member thereof into disrepute. Section 10-A of the 1952 Act THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP provides the power of constructive contempt to the Commission by making a reference to the High Court with a right of appeal to this Court. Our answer to the first question is, therefore, in the negative.
The Supreme Court in the case of Madhukar Sadbha Shivarkar v. State of Maharashtra, reported in (2015) 6 SCC 557 has held as under :
31. The apprehension in the mind of the appellants that their statutory, fundamental and constitutional rights guaranteed under the provisions of the Act and Articles 14, 19 and 21 read with Article 300-A of the Constitution of India are infringed at this stage is premature and misconceived. Therefore, the question of issuing notices to them by the State Government before passing the orders in appointing the Deputy Commissioner as an enquiry officer to conduct administrative enquiry in relation to the landholdings of the land of the Company, the shareholders and the appellants herein to find out whether the land revenue records of the land of the villages referred to supra are destroyed and fabricated on that basis the declarants have declared that they do not own surplus land, the State Government has not passed effective orders at this stage to take away the valuable rights of the appellants as claimed by them and therefore, the question of giving opportunity to them at this stage and conducting enquiry before passing the orders is wholly untenable in law, as the orders are only administrative in nature by appointing an officer to enquire into the alleged fraud on the officers, who have decided the declarations of the shareholders and sub-lessees favourably on the basis of fabricated revenue records by destroying original records of the land of villages referred to supra, with the deliberate intention to come out from the clutches of the Act. Therefore, the rights THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP of the appellants are not affected on the date of passing of the orders by the State Government.
Therefore, the contentions urged by the learned Senior Counsel on behalf of the appellants referred to supra are wholly untenable and the same are liable to be rejected and accordingly rejected.
Since, no order has been passed on the basis of the preliminary enquiry report thereby taking away the valuable rights of the petitioner, therefore, the report of preliminary enquiry cannot be quashed even on the ground of violation of principle of Natural Justice. Further in the present case, the respondent no.3 has directed the competent authority to file a dispute under Section 64 of M.P. Co-operative Societies Act. After the dispute is filed, then all the persons would get an opportunity to file their reply and to participate in the proceedings. Thus, it is clear that no one would be condemned without affording an opportunity of hearing. Further, the liability of each and every person would be determined in the proceedings under Section 64 of M.P. Co-operative Societies Act. Thus, the 2nd contention raised by the Counsel for the petitioner is rejected as misconceived.
It is next contented by the Counsel for the petitioner, that the respondent no.3, should not have directed the authorities to file an application for attachment before award. The Counsel for the petitioner could not point out as to how, such a direction is bad in THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP law. Section 68 of M.P. Co-operative Societies Act, deals with attachment before award. After an application is filed under Section 68 of M.P. Co-operative Societies Act, all the persons would get an opportunity to file their reply and to oppose the prayer for attachment before award and the competent authority shall be under obligation to decide the application in accordance with law. How a direction to file an application for attachment before award can be said to be bad in law? No one can be prevented from filing an application(s) which is/are maintainable under the law. Accordingly, this contention of the petitioner is also rejected being devoid of merits.
It is next contended by the Counsel for the petitioner that the respondent no. 3 cannot direct for registration of F.I.R., because the M.P. Co-operative Societies Act is a complete code in itself.
The submission made by the Counsel for the petitioner is no more res integra.
The Supreme Court in the case of State of M.P. Vs. Rameshwar reported in (2009) 11 SCC 424 has held as under :
48. Mr Tankha's submissions, which were echoed by Mr Jain, that the M.P. Cooperative Societies Act, 1960 was a complete code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted in view of the fact that there is no bar under the M.P. Cooperative Societies Act, 1960, to take resort to the provisions of the general criminal THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP law, particularly when charges under the Prevention of Corruption Act, 1988, are involved.
Thus in absence of any bar, it cannot be said that the prosecuting agency has no power to criminally prosecute a wrong doer in the light of the provisions of Section 64,74 to 76 of M.P. Co- operative Societies Act. Thus, this contention of the petitioner is also rejected being devoid of merits.
It is next contended by the Counsel for the petitioner, that since, the petitioner was not heard, therefore, the respondent no.3 could not have issued a direction to lodge the F.I.R. The Counsel for the petitioner could not point out any provision of law, which gives a right of audience to the suspect prior to lodging of F.I.R. The Supreme Court in the case of Anju Choudhary Vs. State of U.P. reported in (2013) 6 SCC 384 has held as under :
31. The rule of audi alteram partem is subject to exceptions. Such exceptions may be provided by law or by such necessary implications where no other interpretation is possible. Thus rule of natural justice has an application, both under the civil and criminal jurisprudence. The laws like detention and others, specifically provide for post-detention hearing and it is a settled principle of law that application of this doctrine can be excluded by exercise of legislative powers which shall withstand judicial scrutiny. The purpose of the Criminal Procedure Code and the Penal Code, 1860 is to effectively execute administration of the criminal justice system and protect society from perpetrators of crime. It has a twin purpose;
THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP firstly to adequately punish the offender in accordance with law and secondly, to ensure prevention of crime. On examination, the scheme of the Criminal Procedure Code does not provide for any right of hearing at the time of registration of the first information report. As already noticed, the registration forthwith of a cognizable offence is the statutory duty of a police officer-in-charge of the police station. The very purpose of fair and just investigation shall stand frustrated if pre- registration hearing is required to be granted to a suspect. It is not that the liberty of an individual is being taken away or is being adversely affected, except by the due process of law. Where the officer-in-charge of a police station is informed of a heinous or cognizable offence, it will completely destroy the purpose of proper and fair investigation if the suspect is required to be granted a hearing at that stage and is not subjected to custody in accordance with law. There would be predominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audi alteram partem pre- registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law. It cannot be said to be a violation of the principles of natural justice for two different reasons: firstly, the Code does not provide for any such right at that stage, secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage. This Court in Union of India v. W.N. Chadha clearly spelled out this principle in para 98 of the judgment that reads as under: (SCC p. 293) "98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary."
32. In Samaj Parivartan Samudaya v. State of Karnataka, a three-Judge Bench of this Court while dealing with the right of hearing to a person termed as "suspect" or "likely offender" in the report of the CEC observed that there was no right of hearing. Though the suspects were already interveners in the writ petition, they were heard. Stating the law in regard to the right of hearing, the Court held as under: (SCC p. 426, para 50) "50. There is no provision in CrPC where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. CBI, as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the court directs initiation of investigation by a specialised agency or transfer investigation to such agency from another agency that the court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the court. This question is of no relevance to the present case as we have already heard the interveners."
In absence of any provision of hearing to the suspect before THE HIGH COURT OF MADHYA PRADESH W.P. No. 6771/2020 Raman Dubey vs. State of MP lodging of the F.I.R., this contention of the Counsel for the petitioner is also rejected as misconceived.
No other argument is advanced by the Counsel for the Petitioner.
Accordingly, this petition fails and is hereby Dismissed in limine.
(G.S. Ahluwalia) Judge MAHENDRA Digitally signed by MAHENDRA KUMAR BARIK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA KUMAR PRADESH BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, 2.5.4.20=f592da990684fe30f8e1e29a4a1a9e3451 ee450d883083a8e4cc8020eee6f7cb, BARIK cn=MAHENDRA KUMAR BARIK Date: 2020.07.23 10:39:33 +05'30'