Madhya Pradesh High Court
Avadesh Singh Tomar vs The State Of Madhya Pradesh on 11 October, 2017
W.P. No.6687/2017 1
(Avadesh Singh Tomar & Anr. Vs. State of M.P. & Ors.)
11.10.2017.
Shri Anil Mishra, learned counsel for the petitioners.
Shri Vivek Jain, learned Govt. Advocate for the State.
Shri Ajit Sudele, learned counsel for respondents No.6 &
8. Petitioners have filed this petition challenging the action of the respondents whereby the provisions contained in Section 93 of the Code of Criminal Procedure is being knowingly and deliberately misused to the detriment of general public. Petitioners have sought relief that respondents No.3 to 8 be directed not to seek search warrants under Section 93 of the Code of Criminal Procedure for the purpose of search and seizure under the investigation of offences registered under the Prevention of Corruption Act, 1988 and various other Acts. A direction has also been sought against competent civil Court notified under the PC Act, 1988 not to issue search warrant to the respondents under Section 93 of Cr.P.C. to make search and seizure during the investigation of offences registered under the PC Act and various Acts by the Investigating Agency. It is further prayed that respondents be directed to strictly comply with the provisions as contained in Section 165 and 166 of the Code of Criminal Procedure and other relevant sections enacted for the purpose of search and seizure under investigation of offences registered under the PC Act, 1988 and other various Acts.
Learned counsel for the petitioners submits that Public Interest Litigation which was registered as W.P.No.2352/15 (PIL) (Awdhesh Singh Tomar and Another Vs. State of M.P. & Ors.) was filed praying for similar reliefs and has been disposed of in terms of the judgment of Supreme Court in the case of V.S.Kuttan Pillai Vs. Ramakrishnan and another as reported W.P. No.6687/2017 2 in AIR 1980 SC 185 and that has no bearing on the facts of the present case.
On the other hand, learned Govt. Advocate Shri Vivek jain submits that petitioners have no locus. Petitioners' contention that search warrants did not comply with the provisions of proforma No.10 under Section 93 of Cr.P.C. is factually incorrect. In fact, Annexure P/4 gives a specific description of the place for which search warrant has been issued and further submits that no mandamus can be granted and present petition has been filed in abuse of process.
Learned counsel for respondents No.6 to 8 Shri Ajit Sudele submits that no search warrant has been placed on record to have been issued against the petitioners, and therefore, they have no locus.
Learned counsel for the petitioners submits that each and every citizen has a right to approach the Court against the irregularities committed by the subordinate judiciary and he is not seeking any writ of mandamus, but such directions can always be issued to the subordinate judiciary in exercise of supervisory authority of this Court. Though learned counsel for the petitioners submits that he shall supply a copy of the judgment to support his contention that each and every citizen has a right to approach the Court against the irregularities committed by the subordinate judiciary, but no such judgment has been handed over to this Court.
As far as reliefs which have been claimed by the petitioners are concerned, writ petition has been already decided by the Division Bench of this Court vide order dated 24 th April, 2015. This High Court has specifically mentioned in para 12 that general search warrant could be issued by the Court competent by invoking the powers under Section 93 (1)(c) of Cr.P.C. There W.P. No.6687/2017 3 is no rider or exception that prior to taking action as per the provisions given under Section 165 of Cr.P.C., search warrant cannot be issued by the competent Court by invoking powers under Section 93(1)(c) of Cr.P.C. In view of such judgment of Division Bench of this Court against which R.P.No.464/15 was filed and same has been dismissed vide order dated 3.7.2017, this Court is of the opinion that since the issue has already been settled by the Division Bench, this Court has no authority to overwrite the binding judgment of Division Bench, merely because the persons who had approached the Division Bench in Public Interest Litigation have changed the garb and are now appearing in their individual capacity canvassing the same cause of action. In fact, present petition is a gross abuse of process of the Court by filing a petition on the same subject matter claiming same reliefs which were the subject matter of public interest litigation and which have been conclusively decided by the Division Bench of this Court and against which review petition too has been dismissed. Thus, the petition does not call for re- appreciation of the facts and law which has already been appreciated by the Division Bench of this Court, and therefore, petition fails and is dismissed.
(Vivek Agarwal) Judge ms/-