Madhya Pradesh High Court
Ajoy Acharya vs State Bureau Of Investigation on 26 September, 2011
Author: M.A.Siddiqui
Bench: M.A.Siddiqui
(1) W.P. No. 12930/2011
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SHRI JUSTICE M.A.SIDDIQUI
WRIT PETITION NO. 12930/2011
PETITIONER: Ajoy Acharya S/o late Shri M.C. Acharya, aged
about 60 years, R/o D-II/7, Cornwallis Road,
Subramaniam Bharti Marg, New Delhi.
Versus
RESPONDENT: State Bureau of Investigation Against Economic
Offences, Bhopal
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For the Petitioner : Shri Amit Prasad, Advocate.
For the Respondent : Shri S.K.Rai, Govt. Advocate.
Date of hearing : 13/09/2011
Date of order : 26/09/2011
(O R D E R )
Per: Rakesh Saksena; J,
Petitioner has filed this petition under Article 226 of the Constitution of India seeking a writ, order or direction to quash the charge sheet filed by the respondent, against him in the case "State of Madhya Pradesh Vs. Rajendra Singh and others"- Case No. 07/2007 pending in the Court of Special Judge, Bhopal and also to restrain the respondent from initiating any proceedings against him without obtaining sanction on the ground of discrimination.
2. In brief, the history of the case is that on 24.7.2004, State Bureau of Investigation Economic Offences, Bhopal Unit registered F.I.R No. 25/2004 under Sections 120-B, 409, 420, 467 and 468 of the Indian Penal Code and (2) W.P. No. 12930/2011 Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 against the petitioner, Sh. S.R. Mohanty and number of other accused persons on the ground that under a conspiracy a large amount of money of Madhya Pradesh State Industrial Development Corporation (for short `MPSIDC') was misappropriated by them in the garb of Inter Corporate Deposits in contravention of the decision of Cabinet Review Meeting which was adopted by MPSIDC Board in its Board meeting dated 31.1.1994. At the relevant time, petitioner by virtue of his being the Industries Commissioner with the Government of Madhya Pradesh was nominated as a Director of MPSIDC and Sh. S.R.Mohanty was the Managing Director of MPSIDC.
3. After investigation, charge sheet was filed against the petitioner and some other accused persons except Sh. S.R.Mohanty. As per prosecution, the sanction for prosecution under Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act, 1988 (for short `the Act') was not required in the case in view of the law laid down by the Apex Court in the cases of Prakash Singh Badal Vs. State of Punjab- (2007) 1 SCC 1 and R.S.Nayak Vs. A.R.Antulay-AIR 1984 SC 684, State of Kerala Vs. K.Karunakaran-2003 Cr.L.J. 2225 and the decision of M.P. High Court rendered in case of Managing Director, M.P. Leather Development Corporation-2000 Cr.L.J. 1767 (M.P.).
4. Petitioner moved an application before the Special Court seeking (3) W.P. No. 12930/2011 discharge from the offences on the ground of absence of sanction and also on the merits of the case, however, the same was rejected on 11.4.2008. Petitioner challenged the said order in the High Court by filing Criminal Revision No. 1422/2008. Said revision was also dismissed by the High Court on 29.8.2011 after consideration of the facts of the case and in the light of the law laid down by the Apex Court in cases of A.R.Antulay and Prakash Singh Badal (supra).
5. The reason for not filing charge sheet against accused Sh. S.R.Mohanty was that after registration of the F.I.R. by the respondent, Sh. S.R. Mohanty moved a petition in the High Court and the High Court on 19.1.2006 quashed the said F.I.R as far as it related to Sh. Mohanty. Respondent Bureau, then preferred S.L.P. against the said order and the Hon'ble Supreme Court on 3.2.2011, reversed the said order passed by the High Court and directed Investigation in respect of Sh. S.R. Mohanty to be completed in three months. The respondent in view of the order passed by the Supreme Court completed the investigation against Sh. S.R. Mohanty and proceeded to obtain sanction for his prosecution which is said to be pending.
6. According to petitioner, on 12.7.2011, when questions were raised in the State Assembly with respect to the status of prosecution in MPSIDC case and in relation to status of the sanction for prosecution, it was stated by the Chief Minister that on 16.5.2011 sanction for prosecution had been (4) W.P. No. 12930/2011 applied in case of Sh. S.R. Mohanty to the Law Department of M.P. Govt. and the Law Department had sent the request for grant of sanction to the Govt. of India. In case, sanction was accorded, charge sheet against Sh. Mohanti would be filed in the Court.
7. Petitioner, therefore, has challenged his prosecution in this Court alleging discrimination against him. It has been stated by the petitioner that he has been denied a protection which has been given to Sh. S.R.Mohanty despite the fact that the petitioner had no role in day to day operation and management of MPSIDC as compared to the role of Sh. S.R. Mohanty as Managing Director. According to him, preferential treatment was being given to Sh. S.R.Mohanty and petitioner was being denied equal protection of law. Because of his prosecution, he was denied vigilance clearance before his retirement resulting in withholding of pensionary benefits to him and thereby causing substantial failure of justice. Learned counsel for the petitioner contended had the petitioner been treated at par with Sh. S.R.Mohanty, who was similarly placed in terms of continuing in Govt. services, no charge sheet would have been filed against him. The denial of protection to petitioner was improper, unjust and bad in law and violative of petitioner's fundamental right as guaranteed under Article 14 of the Constitution of India. Learned counsel contended that the State cannot discriminate between the petitioner and Sh. S.R.Mohanty to apply for sanction for prosecution of Sh. S.R. Mohanty and deny the protection of (5) W.P. No. 12930/2011 sanction to petitioner while both the persons are similarly placed. Both are accused in the same case, as such, denying equal protection of law amounts to violation of petitioner's right of equality guaranteed under Article 14 of the Constitution of India, therefore, charge sheet pending before the Special judge, Bhopal in the absence of sanction for prosecution against the petitioner, deserves to be quashed.
8. Per contra, the respondent in its return stated that since Sh. S.R.Mohanty had moved a petition in the High Court challenging registration of F.I.R. against him and the said F.I.R. had been quashed only in respect of Sh. S.R. Mohanty on 19.1.2006, investigation against Sh. S.R. Mohanty was discontinued. Respondent Bureau preferred SLP against the order passed by the High Court, whereby the Supreme Court on 3.2.2011 held the order passed by the High Court not sustainable. As per order passed by the Supreme Court, investigation in respect of Sh S.R. Mohanty was then completed within three months and the proceeding to obtain sanction for prosecution of Sh. S.R. Mohanty was underway.
9. In para-4 of the return, respondent stated that the sanction for prosecution of Sh. S.R.Mohanty was being obtained in the light of the letter dated 15.9.2008 issued by the Secretary to the Govt. of M.P. Law and Legislative Affairs Department, wherein it has been stated that it was imperative for the investigating agencies to seek sanction of the competent authority under Section 19(1) of the Act for prosecution, so long as the (6) W.P. No. 12930/2011 officer continued to be a member of civil service and the protection under the aforesaid Section could not said to have been taken away only on the consideration that at the time the Officer held charge of another post on transfer or promotion, then one alleged to have been abused. Copy of the letter dated 15.9.2008 issued by the Secretary to the Govt. of M.P., Law and Legislative Affairs Department is Annexure R-1. It has also been stated by the respondent that the Law and Legislative Affairs Department issued the above-mentioned directive in reference to the letter No. D-2/44/2008/6/one dated 11.8.2008 issued by the General Administration Department, Govt. of M.P., copy of which is as Annexure R-2 and also letter No. 107/13/07 A.V.D.I issued by the Govt. of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, copy whereof is annexed as Annexure R-3.
10. In para-5 of the return respondent stated that the petitioner was charge sheeted by the Bureau on 24.9.2007, whereas the aforesaid directives by the Law and Legislative Affairs Department were issued on 15.9.2008, i.e. much later to the date of filing of charge sheet against the present petitioner.
11. In view of the above, learned Govt. Advocate submitted that the averments made by the petitioner regarding preferential treatment being given to Sh. S.R.Mohanty were unjust and baseless and there was no discrimination between the petitioner and Sh. S.R.Mohanty as alleged in (7) W.P. No. 12930/2011 the petition. Investigation against Sh. S.R.Mohanty was being carried out as per order dated 3.2.2011 passed by the Hon'ble Supreme Court and before filing charge sheet in the Special Court, the Bureau of Investigation sought for sanction to prosecute him as per directives of the Law Department which came into effect, after filing charge sheet against the petitioner. As such, no unequal treatment or protection was being given to accused Sh. S.R. Mohanty.
12. Learned counsel for the petitioner submitted that in Criminal Revision No. 1422/2008, it was argued by learned counsel for the State that the ratio in the cases of A.R.Antulay and Prakash Singh Badal applied in the case of petitioner, but contrary to it, opposite contention was raised to form the defence in the present case. According to him, the contention of prosecution regarding applicability of the Office Memorandum was correct, but the prosecution was bound on the date of arguments in Criminal Revision No. 1422/2008 by the terms of the Office Memorandum and could not have argued contrary to the terms of the said memorandum. The use of the office memorandum was an afterthought defence. In these circumstances, the law of estoppal squarely applied upon the prosecution.
13. Learned counsel for the petitioner reiterated that it was argued by him in Criminal Revision No. 1422/2008 that the petitioner was entitled to protection under Section 19(1) (a) of the Act and that the law laid down by the Apex Court in the cases of A.R.Antulay and Prakash Singh Badal (8) W.P. No. 12930/2011 was not applicable to petitioner because of his being a Member of Indian Administrative Service i.e. being a " continuous Govt. servant".
14. Whatever was argued on merits of the case and about the applicability of the law laid down by the Apex Court in the aforesaid decisions had been considered by this Court in Criminal Revision No. 1422/2008, which has been disposed of on 29.8.2011, we, therefore, feel no need to answer the same questions which have already been answered in the said revision.
15. There is no dispute that the case of prosecution against petitioner as well as against Sh. S.R.Mohanty, on merits, stood on the same footing. Petitioner, at the relevant time, was the Director of MPSIDC, whereas Sh. S.R. Mohanty was the Managing Director of MPSIDC. Neither petitioner nor Sh. S.R. Mohanty continued to hold the same office which was alleged to have been misused when charge sheet was filed against the petitioner. In these circumstances, both would have been prosecuted together, but as indicated in the return filed by the respondent, Sh. S.R. Mohanty moved a petition in the High Court seeking quashment of the F.I.R against him and the High Court quashed the said F.I.R in respect of him on 19.1.2006. Respondent preferred S.L.P against the said order wherein the Supreme Court on 3.2.2011 held that order not sustainable and directed respondent to complete investigation against Sh. S.R. Mohanty within three months. In the meanwhile, in view of the memorandum number 107/13/2007-AVDI (9) W.P. No. 12930/2011 dated 27th June 2008, issued by Department of Personnel and Training (Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training) Govt. of India, Ministry of General Administration, M.P. and Department of Law and Legislative Affairs, M.P. Govt. issued instructions to Director General of Police, EOW and also to Special Police Establishment, Bhopal by orders dated 11th August, 2008 and 15.9.2008, respectively, clarifying that while holding different posts on transfer or promotion, a civil servant cannot be treated as holding different `offices' within the meaning of relevant Sections of the `Act'. The only office held by him would be that of the member of the service to which he belonged as a civil servant, irrespective of the post held on transfer/promotion etc. Therefore, the requirements of seeking sanction of the competent authority under Section 19 of the Act continued to be applicable so long as the officer continued to be a member of civil service and the protection under Section 19(1) of the Act could not said to have been taken away only on the consideration that at the time the officer held charge of another post on transfer or promotion, then one alleged to have been abused.
16. Learned Govt. Advocate for the State submitted that in the aforesaid circumstances, investigation against Shri Mohanty could be started only after 3.2.2011, whereas charge sheet against the petitioner was filed in the Special Court on 24.9.2007, without obtaining sanction for prosecution in view of the law laid down by the Apex Court in cases of A.R.Antulay and (10) W.P. No. 12930/2011 Prakash Singh Badal (supra). By that time, the directives issued by Law and Legislative Department and the memorandum issued by the Department of Personnel and Training (DOPT) were not in existence. After receiving the aforesaid directives, respondent proceeded to obtain sanction for prosecution of Shri Mohanty. As such, it cannot be said that the respondent committed discrimination in not obtaining sanction for prosecuting the petitioner.
17. As far as the stand taken by learned counsel for the respondent in Criminal Revision No. 1422/2008, wherein the petitioner challenged his prosecution in the absence of sanction, that the ratio of the decisions of the Apex Court rendered in the cases of A.R.Antulay and Prakash Singh Badal was applicable in the case, in our opinion, did not estop him contending that feeling bound by the directives issued by the Ministry and Law and Legislative Department respondent proceeded to obtain sanction from the Govt./competent authority. Learned counsel for the respondent was free to submit about the legal interpretation of the decisions rendered by the Apex Court. Apart from it, since the directives for obtaining sanction for prosecution in terms of memorandum issued by DOPT on 27th June, 2008 were issued by the Law and Legislative Affairs Department of the Govt. of M.P. on 15.9.2008, it cannot be held that respondent discriminated petitioner by proceeding to obtain sanction for prosecution of Sh. S.R.Mohanty. Since, respondent could not have proceeded against (11) W.P. No. 12930/2011 Sh.S.R.Mohanty and filed charge sheet against him in view of the order passed by the High Court quashing the F.I.R against him, it cannot be held that respondent adopted different standards for prosecution of two accused persons in the same case.
18. Placing reliance on Bansi Lal Vs. State of Madhya Pradesh and another-(1982) 3 SCC 370, Akhil Ali Jehangir Ali Sayyed Vs. State of Maharashtra- (2003) 2 SCC 708, Soma Chakravarty Vs. State through CBI- (2007) 5 SCC 403 and C.B.I. Vs. Mustafa Ahmed Dossa- (2011) 4 SCC 418, learned counsel for the petitioner submitted that trial of two accused persons arising out of the same incident cannot proceed under different procedures. Court would not deny the same benefit to other accused which has been granted to one accused.
19. In case of Bansi Lal and Akhil Ali Jehangir (supra), the Apex Court extended reliefs to accused persons which were granted to other co- accused who were similarly placed in the same case. In case of Soma Chakravarty (supra), the Apex Court observed that if exoneration in departmental proceeding was the basis for not framing a charge against an accused person who was similarly situated, the question which required further consideration was whether another accused present before the Court was similarly situated and/or whether exonerated officer also faced the same charge. In the case in hand F.I.R. against Sh. Mohanti was quashed by the High Court but the position was restored by the Supreme (12) W.P. No. 12930/2011 Court at a later stage. In case of Mustafa Ahmed Dossa (supra), the Apex Court observed that the trial of two accused arising out of the same incident cannot proceed under different procedures.
20. All the above cited cases pertained to the parity of treatment amongst the accused persons of the same incident in the trial, whereas in the instant case on the basis of evidence collected during investigation charge sheet was filed against the petitioner without obtaining sanction of his prosecution in the light of the ratio of the Apex Court decisions rendered in the cases of A.R.Antulay and Prakash Singh Badal. This Court in Criminal Revision No. 1422/2008 preferred by the petitioner challenging his prosecution in the absence of sanction held that the interpretation and the clarification given by DOPT vide memorandum dated 27.6.2008 could not be accepted in view of the observations made by the Apex Court in case of Prakash Singh Badal (supra) in paras-23-24 of the decision. Thus, in our opinion, prosecution of the petitioner was valid. In view of the subsequent development when the Law and Legislative Affairs Department of the Govt. issued directives, if at a later stage, respondent proceeded for obtaining sanction for prosecution against co-accused, it cannot be held that different standards were adopted by the prosecution by giving unequal treatment to the petitioner. An accused against whom there is prima facie evidence for filing charge sheet, cannot be exonerated or his prosecution be quashed merely on the ground that because of some (13) W.P. No. 12930/2011 supervening circumstances another accused could not be proceeded against similarly.
21. For the reasons stated hereinabove, we are of the view that in view of the peculiar facts and circumstances of the case, it cannot be held that the petitioner has been discriminated or denied equality before the law. It is also significant to note that the trial Court has wide powers under Section 319 of the Code of Criminal Procedure in an enquiry or trial of an offence to see from the evidence if any person not being accused has committed any offence for which such person could be tried together with the accused.
22. We find no merit in this petition. Accordingly, it fails and is hereby dismissed.
(RAKESH SAKSENA) (M.A.SIDDIQUI)
JUDGE JUDGE
AD/