Madhya Pradesh High Court
Kishore Samrite vs Shivraj Singh Chouhan on 13 October, 2010
Author: Rakesh Saksena
Bench: M.A. Siddiqui, Rakesh Saksena
1
AFR
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Revision No.1126/2010
Kishore Samrite, s/o Nanaji
Samrite, aged about 43 years,
Ex.MLA, Lanji, Distt. Balaghat, r/o
Lanji, Balaghat, Distt. Balaghat
(M.P.).
versus
1. Shri Shivraj Singh Chauhan, s/o
Shri Prem Singh Chauhan, r/o
Village Jait, Tehsil Budhni, Distt.
Sehore (M.P.).
2. Smt. Sadhna Singh, w/o Shri
Shivraj Singh Chauhan, r/o village
Jait, Tehsil Budhni, Distt. Sehore
(M.P.).
3. Shri Sunny Gaur, Director,
Jaypee Associates Ltd. J.P. Nagar
City, Rewa (M.P.).
4. Principal Secretary, Department
of Mines, Government of Madhya
Pradesh, Vallabh Bhawan, Bhopal
(M.P.).
5. The Regional Transport Officer
(RTO), Regional Transport Office,
Rewa, Distt. Rewa (M.P.).
6. Superintendent of Police
(Special Police Establishment),
Lokayukta, Bhopal ( M.P.).
7. State of Madhya Pradesh,
through D.S.P., Special Police
Establishment (Lokayukta), Division
Bhopal, district Bhopal (M.P.).
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For the Petitioner: Smt. Shobha Menon, Learned Sr. Counsel
with Shri Rahul Choubey, advocate.
For the Resp./State: Shri R.D. Jain, Learned Sr. Counsel and
Advoate General
with Shri Naman Nagarath, learned Additional
Advocate General, for the State.
For Lokayukta: Shri Aditya Adhikar, learned counsel.
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2
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PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE M.A. SIDDIQUI
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Date of hearing: 28/09/2010
Date of Judgment: 13/10/2010
ORDER
Per: Rakesh Saksena, J.
Aggrieved by the order dated 3.6.2010, passed by the Special Judge (Prevention of Corruption Act), Bhopal, in case of State of Madhya Pradesh Vs. Shri Shivraj Singh Chauhan and others, whereby application under Section 156 (3) of the Code of Criminal Procedure, filed by the petitioner, was dismissed, the petitioner has filed this revision.
2. Briefly stated facts of the case are that complainant Ramesh K. Sahu filed a complaint (Annexure A/11) against Shri Shivraj Singh Chauhan, Chief Minister of State of Madhya Pradesh, his wife and some other persons in the Court of Special Judge, Bhopal, alleging illegal and corrupt practices being adopted by them and other persons and amassing huge property by them. According to complainant, to bring facts to light, he submitted a report to the Superintendent of Police, Special Police Establishment (Lokayukta), Bhopal (for brevity 'SPE [Lokayukta]') requesting it to register a case, but SPE did not register the FIR. Therefore, he filed the aforesaid complaint before the Court of Special Judge, Bhopal. He also filed an application under Section 156(3) of the Code of Criminal Procedure requesting the Court that the facts narrated by him in the complaint and documents annexed to it established that a case of cognizable nature punishable under Sections 13(1)(d), 13(1)(e) and Section 32 of the Prevention of Corruption Act read with Section 120-B, 420, 467 and 471 of the Indian Penal Code was committed. The matter required detailed 3 investigation including seizure of documents from various offices, recording of statement, making Panchnamas and recovery of accumulated disproportionate assets etc. This entire process could be done only by police in exercise of its power of investigation. He, therefore, requested the Court to exercise its power under Section 156(3) of the Code of Criminal Procedure and direct the Superintendent of Police, SPE (Lokayukta), Bhopal to investigate the matter.
3. Learned Special Judge, by order dated 14.11.2007, in exercise of powers under Section 156(3) of the Code of Criminal Procedure, sent the complaint and annexed documents to SPE (Lokayukta), Bhopal, and ordered it to file a report after enquiry. In compliance of the aforesaid order, SPE (Lokayukta), Bhopal, registered the First Information Report No.41/2007 (Annexure A/12) under the aforesaid Sections.
4. Since no charge-sheet was filed, on 2.6.2010, the petitioner, a stranger to the pending criminal proceedings, filed an application under Section 156 (3) of the Code of Criminal Procedure, requesting that SPE (Lokayukta), Bhopal was not taking further steps and was not filing charge-sheet with a view to favour accused persons, therefore, State of M.P. through D.S.P., Special Police Establishment (Lokayukta), Bhopal, be directed to conclude the investigation within a reasonable time of three months and that an explanation be called from it about the progress of investigation.
5. Learned special Judge, by order dated 3.6.2010, placing reliance on the decisions of the Supreme Court in T.T. Antony vs. State of Karnataka-AIR 2001 SC 2637 and Union of India vs. Prakash Chand Hinduja-2003 Criminal Law Journal 3117 SC , dismissed the aforesaid application holding that the Court was not empowered to interfere in the investigation and to direct SPE (Lokayukta) to file charge-sheet within some prescribed period. Aggrieved by this order, petitioner has filed this revision. 4
6. Learned Advocate General Shri R.D. Jain, Senior Advocate, and Shri Aditya Adhikari, learned counsel for SPE (Lokayukta) raised a preliminary objection about the maintainability of this revision contending that the petitioner had no locus-standi to file any application under Section 156 (3) of the Code of Criminal Procedure before the Special Judge, as he was not a party to the proceeding; he was neither complainant nor an aggrieved person. The proceedings before the Special Court were instituted by complainant Ramesh K. Sahu, who did not make any grievance. Therefore, the application filed by the petitioner before the Special Judge was not maintainable. Learned counsel further submitted that once the application filed by complainant under Section 156(3) of the Code of Criminal Procedure was entertained by the Court and an order was passed, in response of which a first information report was registered and investigation was started, no further application under Section 156 of the Code of Criminal Procedure was maintainable. Apart from it, learned counsel contended that petitioner had also filed a Writ Petition No.4480/2010 before the High Court seeking the same relief, but when the question of his locus-standi was raised, he withdrew the said petition on 12.4.2010.
7. Smt. Shobha Menon, learned Senior Counsel for the petitioner, contended that the objection about the locus-standi of the petitioner raised by learned counsel for the State had no merit as the concept of locus-standi was unknown in the Criminal Jurisprudence and anybody could put the criminal machinery in motion except where the statute enacting or creating an offence indicated to the contrary. She contended that since no objection about the locus-standi of the petitioner was raised before the Special Judge, now it could not be raised, especially when learned Special Judge had entertained the application filed by petitioner and rejected it on the wrong notion of law. Learned counsel argued that in view of the law laid down by the Apex Court in 5 Sakiri Vasu vs. State of Uttar Pradesh and others-(2008) II SCC 409 the learned Special Judge committed error in holding that the Court was not empowered to issue any direction to SPE-Lokayukta in the investigation and to file the charge sheet within certain time limit.
8. We have heard learned counsel of both the sides at length.
9. Since the question of locus-standi of the petitioner and the maintainability of the application under Section 156(3) of the Code of Criminal Procedure, filed by him before the Special Judge, is the main ground of objection taken by the respondent/State, we will take it up first.
10. Learned Advocate General argued that since the case before the Special Court was instituted on a private complaint filed by the complainant Ramesh K. Sahu and on his application under Section 156(3) of the Code of Criminal Procedure FIR was registered against the accused persons, the petitioner being altogether a stranger had no locus-standi to file another application under Section 156(3) of the Code of Criminal Procedure in the said complaint and even otherwise second application under Section 156(3) of the Code of Criminal Procedure was not maintainable. The petitioner could not be said to be an aggrieved person. Therefore, neither application filed by him before the Special Court was maintainable nor the present revision is maintainable. In reply, learned counsel for the petitioner argued that the question of locus- standi cannot be raised in criminal law because an act or omission made punishable by any law for the time in force is not merely an offence committed in relation to the person, who suffered harm, but is also an offence against the society. The society for its orderly and peaceful development is interested in the punishment of the offender. Right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight jacket formula of locus-standi unknown to criminal jurisprudence, save and except 6 specific statutory exception. Learned counsel in support of her arguments cited R.S. Nayak v. A.R. Antulay-(1984) 2 SCC 500, Manohar Lal v. Vinesh Anand and others-AIR 2001 SC 1820, Dharmeshbhai v. Vasudevbhai and others-(2009) 6 SCC 576 and Zahira Habibulla H. Sheikh and another v. State of Gujrat and others-(2004) 4 SCC 158 .
11. In R.S. Nayak (supra) Apex Court held that "it is a well recognized principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision." Apex Court in case of Manohar Lal v. Vinesh Anand and others-AIR 2001 SC 1820 reiterated that "to pursue an offender in the event of commission of an offence, is to sub-serve a social need. Society cannot afford to have a criminal escape his liability, since that would bring about a State of social pollution, which is neither desired nor warranted and this is irrespective of the concept of locus - the doctrine of locus-standi is totally foreign to criminal jurisprudence." In Dharmeshbhai v. Vasudevbhai and others-(2009) 6 SCC 576 the Supreme Court held that "it is well settled that any person may set the criminal law in motion subject of course to the statutory interdicts. When an offence is committed, a first information report can be lodged under Section 154 of the Code of Criminal Prodecurre (for short "the Code"). A complaint petition may 7 also be filed in terms of Section 200 thereof. However, in the event of some reasons or the other, the first information report is not recorded in terms of sub-section (1) of Section 156 of the Code, the Magistrate is empowered under sub-section (3) of Section 156 thereof to order an investigation into the allegations contained in the complaint petition. Thus, power to direct investigation may arise in two different situation- (1) when a first information report is refused to be lodged; or (2) when the statutory power of investigation for some reason or the other is not conducted."
12. Placing reliance on Zahira Habibulla H. Sheikh and another v. State of Gujrat and others-(2004) 4 SCC 158 learned counsel for the petitioner contended that when an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages the faith inbuilt in the judicial system ultimately destroying the very justice-delivery system of the country itself.
13. In State of Madhya Pradesh and others v. Shri Ram Singh-AIR 2000 SC 870 Apex Court observed that procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and decided cases under it.
14. There is no dispute about the ratio of the aforementioned decisions of the Apex Court that any person may set the criminal law in motion, but in our opinion, the fact situation in the case in hands is different. Criminal Proceeding in the case has already been instituted by the complainant Ramesh K. Sahu, and the petitioner who is a stranger to said proceedings has sought 8 intervention by filing an application under Section 156(3) of the Code of Criminal Procedure, which in our opinion cannot be permitted. He cannot be held to be an aggrieved person. There is vast difference between the terms "setting the criminal law in motion" and "intervention" in the pending proceedings. In these circumstances, decisions cited by the learned counsel which pertain to locus-standi of a person to set the criminal law in motion render no help to petitioner. Apex Court in number of cases held that every judgment must be read as applicable to particular facts proved, or assumed to be proved, since generality of expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. (See Bank of India v. Mohandas (2009) 5 SCC 313 and State of Bihar v. Suresh Prasad Sinha-AIR 2010 S.C. 93.
15. In K.Anbazhagan v. Superintendent of Police and others-AIR 2004 SC 524 Supreme Court while dealing with the petition filed under Section 406 of the Code of Criminal Procedure for transfer of case from one High Court to another High Court explained the meaning of word "party interested" with reference to the provisions of sub-section (2) of Section 406 of the Code of Criminal Procedure, when an objection about locus-standi of the petitioner was raised. According to counsel for respondent in that case, it was the "party interested" and not the 'person interested' and, therefore, only a "Attorney General" or a "party interested" had locus-standi to file application and the petitioner not being a party to the proceeding was not a "party interested" and had no locus-standi to file the transfer petition. The Apex Court held that the word "party interested" was not defined under Cr.P.C.. The word "party interested" is of wide import and, therefore, it has to be given a wider meaning. If it was the intendment of the Legislature to give restricted 9 meaning then they would have used the word to the effect, "party to the proceedings". The Legislature, keeping in view the larger public interest involved in a criminal justice system, purposely used the word of wider import in Section 406. It was held that the petitioner being a political opponent, was vitally interested in administration of justice in the State and was, therefore, a "party interested" within the meaning of sub-section (2) of Section 406 of Cr.P.C.. It was also observed that Mr.Subramanium Swami, who was the original complainant, also supported the the transfer petitions. In our opinion, the factual position in the case in hand is different. The Apex Court interpreted the scope of word "party interested" in reference to the provisions of Section 406 (2) OF Cr.P.C.. In the present case, the aggrieved person Ramesh K.Sahu, who filed the private complaint, did not raise any objection about the investigation. In our view if a stranger is allowed to intervene and file application in the criminal proceedings in which he is not a party, it may create complications and affect the interests of aggrieved person as well as accused. It will, in fact, render a criminal case to become a private combat between any number of persons. In Rajiv Ranjan Singh 'Lalan' v. Union of India, Apex Court while considering the scope of interference at the instance of strangers, observed that "25.............. It is already noticed that the petitioners had no direct connection with the case. They were absolutely strangers as regards the criminal cases against respondents 4 and 5 which were pending before the special judge. This unnecessary interference in the criminal case may cause, sometimes, damage to the prosecution case and at times may cause serious prejudice to the accused also. In any view of the matter, this sort of interference in the criminal prosecution would only deny a fair trial to accused."
16. It is undisputedly true that anyone can set the criminal law into motion 10 except where there is statutory bar. In the case in hand also the case before the Special Court was instituted on a private complaint by complainant Ramesh K.Sahu, and an order under Section 156(3) of the Code of Criminal Procedure was passed. In compliance of the said order, first information was registered, but the petitioner before us, was neither the complainant nor an aggrieved party in the criminal case pending before the Special Court. The Criminal Law Machinery has already been set in motion by the complainant. Permitting anybody, who is stranger to a criminal case to intervene and interfere in the proceedings, may adversely affect to the parties to the criminal proceedings. There was no bar for the petitioner to have filed a complaint or lodged a report with the police against the accused persons, if he felt that an offence was committed by the accused persons and he was aggrieved, but when already a complaint was filed and the police had already registered a FIR, it would be against the procedure provided under law to permit him to intervene like a public interest litigation in the investigation into the allegations. Apart from it once an application under Section 156 (3) of the Code of Criminal Procedure was filed before the Court by the complainant and on the order of Magistrate the first information report was registered, no further application under Section 156(3) of the Code of Criminal Procedure would be maintainable because the effect of an order being passed under Section 156(3) of the Code of Criminal Procedure would only be the registration of first information report and investigation into the allegations.
17. We are unable to accept the argument advanced by the learned counsel for the petitioner that since the question of locus-standi of the petitioner and maintainability of the application under Section 156 of the Code of Criminal Procedure was not raised before the court below, it could not be raised in this revision filed by the petitioner because, in our opinion, the court below acted 11 beyond jurisdiction in entertaining the application filed by the petitioner. In case of Dharmeshbhai (supra) the Apex Court held that when an order passed by the Magistrate, which was wholly without jurisdiction, was brought to the notice of the High Court, it could have interfered therewith even suo- motu.
18. The next question before us is whether Magistrate/Special Judge, in the exercise of jurisdiction under Section 156(3) of the Code of Criminal Procedure, could monitor the investigation and/or issue direction for proper investigation. In case of Sakiri Vasu (supra) Hon'ble Supreme Court observed:
"11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation."
"15. Section 156 (3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same."
"16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence, the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha (SCC:AIR para 19)."
"17. in our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it 12 includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156 (3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation."
"29. In Union of India v. Prakash P. Hinduja (SCC vide para 13) it has been observed by this Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) CrPC is satisfied that proper investigation has not been done, or is not being done by the officer in charge of the police station concerned, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate himself)."
19. In view of the fact that Supreme Court in the above case clarified that the ratio of the decision rendered in Prakash P. Hinduja (supra) would apply only when Magistrate is satisfied that on application under Section 156 (3) of the Code of Criminal Procedure proper investigation has been done, or is being done, and if proper investigation is not done he can direct the officer incharge of the police station to make proper investigation and can further monitor the same, we find that the learned special judge was not justified in holding that he was not empowered to give direction to DSP-SPE for proper investigation. We are unable to accept the submission made by learned Advocate General that since in decision rendered in Nirmal Singh Khalon v. State of Punjab-(2009) 1 SCC 441 my lords of the Supreme Court observed that the correctness of observation made in Sakiri Vasu (supra) was open to question, Magistrate had no jurisdiction to supervise or ensure fair investigation. In our opinion, ratio of Sakiri Vasu (supra) is binding on all subordinate courts and High Courts. Therefore, we hold that Special Judge or a Magistrate on being satisfied that there has been no proper investigation by 13 the concerned police is empowered to issue necessary directions to it to make proper investigation. However, this can be done, in our opinion, only when application under Section 156(3) of the Code of Criminal Procedure has been moved by the complainant or an aggrieved person.
20. For the reasons stated above, we accept the preliminary objection raised by the respondents/State and hold that the petitioner had no locus-standi to move application under Section 156 (3) of the Code of Criminal Procedure before the Special Court and that the said application was not maintainable in the case as the Special Court had already passed order on earlier application under Section 156 (3) of the Code of Criminal Procedure filed by the complainant Ramesh K. Sahu. However, in view of the ratio of Sakiri Vasu (supra) we set aside the impugned order passed by the learned Special Judge on 3.6.2010.
21. Since we have found that the petitioner has no locus-standi, we need not to answer other questions raised by the petitioner or the State in this revision.
22. Revision disposed off.
(RAKESH SAKSENA) (M.A. SIDDIQUI)
JUDGE JUDGE
Shukla
14
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Revision No.1126/2010
Kishore Samrite
versus
Shri Shivraj Singh Chauhan & Ors.
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
__/10/2010
Hon'ble Shri Justice M.A.Siddiqui
JUDGE
__/10/2010
POST FOR /10/2010
(Rakesh Saksena)
Judge
___/10/2010