Madhya Pradesh High Court
Nityanand Pandey vs Revenue Department on 2 December, 2016
WP-7121-2016
(NITYANAND PANDEY Vs REVENUE DEPARTMENT)
02-12-2016
HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
Before Division Bench: Hon'ble Shri Justice P.K.
Jaiswal and Hon'ble Shri Justice Virender Singh
W.P. No.7121/2016
Nityanand Pandey
Vs.
State of Madhya Pradesh & another
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Shri Sachin Bhatnagar, learned counsel for the petitioner.
Shri P. Bhargava, learned Dy. A.G. for the
respondent/State.
ORDER
(Passed on 02/12/2016) Per: Virender Singh, J.
The petitioner has preferred this petition against the order dated 20.09.2016 of granting sanction for prosecution u/s 19 of the PC Act, 1988 in Crime No.361/14 registered against him by the Special Police Establishment, bhopal alleging that the order is in violation of the Stage Government Policy as enumerated in MPCAD Circular No. F-15-01/2014/1-10 dated 05/09/2014.
Facts in brief are that the petitioner was posted as Tehsildar, Ujjain during the year 2006-2012. In the year 2014, the SPE, Lokayukt, Bhopal registered a case Crime No.361/2014, under Section 13 ID, 13 (2) of the PC Act, 1988 read with Section 420, 467, 468, 471 and 120 B of the IPC against the petitioner alleging that he had misused his official position by hatching a criminal conspiracy with land mafia, thereby illegally exercised his powers provided u/S 190 of MPLRC, 1959 for causing wrongful gain to the land mafia and wrongful loss to the State Government by passing the orders of mutation which has caused revenue loss to the State Government. After Investigation, his case was sent to his parent department for grant of prosecution sanction. After due consideration the department declined to grant sanction vide proceedings dated 02.05.2016. But, on 04.08.2016, portfolios of the Ministers were changed and soon after the new Minister took over the charge of his newly allotted portfolio, he decided to grant the prosecution sanction and endorsement to that effect has been made in the note-sheet dated 08.09.2000. In pursuance of this decision, order to grant sanction was issued on 20.09.2016, which is under challenge in the present petition.
Contention of the petitioner is that after taking decision for not granting the sanction, the matter was to be referred to the Department of Law and Legislative Affairs as provided in para 4 and 5 of the circular dated 05.09.2014. the new Minister had no option but to follow the procedure laid down in the circular. The new minister had no authority to review the earlier decision taken by his predecessor. He has changed the earlier decision without application of mind illegally and arbitrarily in violation of the due procedure as laid down in para 4 to 7 of the circular dated 05.09.2014. Bypassing the procedure has adversely prejudicated the case of the petitioner and it indicates the malafide intention of the respondent towards the petitioner.
Second contention of the petitioner is that while passing the order of mutation, he has performed his quasi-judicial function, which is covered under the definition of âCourtâ u/S 5(2), 3(1) and 4 of the Judges (Protection) Act, 1985.
It is further submitted that mutation dated 11.07.2011 was done in compliance to the decree dated 21.11.2009 passed by the first Civil Judge, Class-I in civil Suit No.28A/2009 after due consultation and opinion of the government advocate district- Ujjain. Therefore, charges cannot be framed against him in this regard.
It would be opt to mention that after getting unsuccessful in all 17 petitions filed under Section 482 of Cr.P.C. for quashing of FIRs registered against him, the petitioner has preferred the present petition. To regulate the procedure regarding grant of sanction the State Government has issued circular No. F-15-01/2014/1-10 dated 05/09/2014, relevant paras of this circular reads as under:
â4½ ;fn iz'kkldh; foHkkx izdj.k dks vfHk;kstu Lohd`fr ds ;ksX; ugha ikrk gS] rks og vius ldkj.k fu"d"kZ lfgr izdj.k dks 30 fnu ds Hkhrj fof/kd vfHker gsrq fof/k vkSj fo/kk;h dk;Z foHkkx dks izsf"kr djsxkA 5½ fof/k vkSj fo/kk;h dk;Z foHkkx izdj.k dk ijh{k.k dj] iz'kkldh; foHkkx ls izdj.k dh izkfIr ls 15 fnol dh vof/k esa] iz'kkldh; foHkkx dks vius fyf[kr ldkj.k vfHker ls voxr djk,xkA 6½ ;fn fof/k vkSj fo/kk;h dk;Z foHkkx dk vfHker ;g gS fd vfHk;kstu Lohd`fr ls og lger gS] rks iz'kkldh; foHkkx vfHk;kstu Lohd`fr ds vkosnu i= dks vLohdkj dj] rn~uqlkj vUos"k.k vfHkdj.k@O;fDrxr ifjoknh dks lwfpr djsxkA vkns'k dh izfr fof/k ,oa fo/kk;h dk;Z foHkkx dks Hkh izsf"kr dh tk,xhA 7½ ;fn fof/k foHkkx dh n`f"V esa vfHk;kstu Lohd`fr nh tkuk pkfg;s vkSj iqufoZpkj djus ij iz'kkldh; foHkkx fof/k foHkkx dh jk; ls lger gksrk gS] rks fQj iz'kkldh; foHkkx 15 fnol ds vanj vfHk;kstu Lohd`fr tkjh dj] vkns'k dh izfr fof/k foHkkx dks i`"Bkafdr djsxkA 8½ iqufoZpkj i'pkr~ Hkh iz'kkldh;
foHkkx ds fu"d"kZ ,oa fof/k vkSj fo/kk;h dk;Z foHkkx ds vfHker fHkUu gksus dh n'kk esa] iz'kkldh; foHkkx izdj.k la{ksfidk dh 20 izfr;ksa ds lkFk 15 fnol ds vUnj lkekU; iz'kklu foHkkx ds ek/;e ls eaf=&ifj"kn~ lfefr ds fopkjkFkZ HkstsxkA iz'kkldh; foHkkx eaf=&ifj"kn~ lfefr ds fu.kZ; ds vuqlkj vkns'k tkjh djus dh dk;Zokgh djsxkAâ The petitioner has filed photocopies of few internal note-sheets of his parent department i.e. the Revenue Department relating to grant of sanction of prosecution against him, which shows that erstwhile minister of the revenue department, marked his disagreement in granting the prosecution sanction against the petitioner. Thereafter, after change of portfolios, the new minister of the department decided to grant prosecution sanction vide note-sheet dated 08.09.2016 and in pursuance of this decision the impugned order has been issued by the department.
The contention of the petitioner is that after taking decision of not to grant sanction, the matter has to be sent to the law-department for their opinion but instead the new minister granted the prosecution sanction, which is, illegal, arbitrary and unlawful. Trite it is to mentioned that as per the settled norms and procedure of working of the Government, before arriving at any conclusion or before taking any decision, certain debates, discussions and deliberations take place at various lavels of the administrative hierarchy. Before passing final order, views may be different and sometimes even may be conflicting, but, this does not matter rather, it reflects a good practice and a healthy procedure. During the process of taking decision to grant sanction or not, it is not material as to what kind of cerebral thought is pondered by one or the others. Support cannot be taken from such internal but not final opinions, Courts are not concerned with such internal debates or discussions of the department. Ultimately, it is the final order which matters and which can be seen or act upon or can be taken into consideration as final decision of the competent authority. Undisputedly, the final decision of the competent authority was to grant sanction, which is in consonance of the Article 166 of the Constitution and also the Conduct of Business Rules of the Govt. of M.P. Further, when the competent authority was of the view to grant sanction then it was not compulsive/mandatory for it to follow the procedure as enunciated in Para 4 to 8 of the said circular or to send the file to the law department.
Thus, this contention bears no fruits. It is vehemently argued by the learned counsel for the petitioner that the orders of mutations have been passed by the petitioner in furtherance of power devolved under the Land Revenue Code and the disputed orders are passed using quasi-judicial powers, therefore, the act of the petitioner is protected under the Judges (Protection) Act, 1985. According to the learned Senior Counsel, the applicant being a Revenue Officer holds status of a Judge as defnied in Section 3 of the Judges (Protection) Act, 1985.
Section 3 of the Judges (Protection) Act, 1985 reads as under:-
â3.Addition Protection to Judges-
1. Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-
section (2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.
1. Nothing in sub-section (1) shall debar or affect in any manner, the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal or departmental proceedings or otherwise) against any person who is or was a Judge.â Simple reading of this Section leaves no doubt that there is no embargo or rider on the powers of Centeral Government or State Governments to take any action by way of criminal proceedings against any person who is or was a Judge.
Getting direct evidence regarding intention is not so easy but the same can be inferred from the conduct of the petitioner. The answer can be traced in a decision of the Hon'ble Apex Court in R.R. Parekh vs. Hign Court of Gujarat and Another, reported in AIR 2016 S.C. 3356. The Hon'ble Court has held in Para no.15 of the judgment that :-
âThe issue of whether a judicial officer has been actuated by an oblique motive or corrupt practice has to be determined upon a careful appraisal of the material on the record. Direct evidence of corruption may not always be forthcoming in every case involving a misconduct of this nature. A wanton breach of the governing principles of law or procedure may well be indicative in a given case of a motivated, if not reckless disregard of legal principle. In the absence of a cogent explanation to the contrary, it is for the disciplinary authority to determine whether a pattern has emerged on the basis of which an inference that the judicial officer was actuated by extraneous considerations can be drawn. Cases involving misdemeanours of a judicial officer have to be dealt with sensitivity and care. A robust common sense must guide the disciplinary authority. At one end of the spectrum are those cases where direct evidence of a misdemeanour is available. Evidence in regard to the existence of an incriminating trail must be carefully scrutinized to determine whether an act of misconduct is established on the basis of legally acceptable evidence. Yet in other cases, direct evidence of a decision being actuated by a corrupt motive may not be available. The issue which arises in such cases is whether there are circumstances from which an inference that extraneous considerations have actuated a judicial officer can legitimately be drawn. Such an inference cannot obviously be drawn merely from a hypothesis that a decision is erroneous. A wrong decision can yet be a bona fide Error of judgment. Inadvertence is consistent with an honest error of judgment. A charge of misconduct against a judicial officer must be distinguished from a purely erroneous decision whether on law or on fact. The legality of a judicial determination is subject to such remedies as are provided in law for testing the correctness of the determination. It is not the correctness of the verdict but the conduct of the officer which is in question. The disciplinary authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power. The circumstances let into evidence to establish misconduct have to be sifted and evaluated with caution. The threat of disciplinary proceedings must not demotivate the honest and independent officer. Yet on the other hand, there is a vital element of accountability to society involved in dealing with cases of misconduct. There is on the one hand a genuine public interest in protecting fearless and honest officers of the district judiciary from motivated criticism and attack. Equally there is a genuine public interest in holding a person who is guilty of wrong doing responsible for his or his actions. Neither aspect of public interest can be ignored. Both are vital to the preservation of the integrity of the administration of justice.â (Emphasis Supplied) In the present case, repeated orders have been passed by the petitioner in the same manner and in all 18 cases were found in which he has mutated the name of the parties in the same manner which caused loss to the State exchequer. Therefore, in our considered opinion, he cannot claim protection under the Judges (Protection) Act. It is already decided in the order dated 07.01.2015, passed in MCRC No.7970/2014 that prima facie case is made out against the applicants and from the orders it is reflected that he constituted a conspiracy to cause wrongful loss to the State exchequer. As far as mutation order dated 11.07.2011 is concerned, that is a matter of fact and it can be decided by the trial Court on merit.
In the result for the foregoing reasons, all the contentions urged by the petitioner in support of his challenge, found no ground, therefore, petition being bereft of merit is hereby dismissed.
(P.K. JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE
amit