Madhya Pradesh High Court
Shri Kavindra Kiyawat vs The State Of Madhya Pradesh Thr. Special ... on 11 August, 2020
Equivalent citations: AIRONLINE 2020 MP 1645
Author: Sanjay Yadav
Bench: Sanjay Yadav, B.K. Shrivastava
THE HIGH COURT OF MADHYA PRADESH
Heard through Video Conferencing
Writ Petition No.27734/2019
Shri Kavindra Kiyawat
versus
State of Madhya Pradesh and others
Jabalpur, Dated : 11.08.2020
There being a difference of opinion, therefore, let this matter
be placed before Hon'ble the Chief Justice for appropriate orders.
(Sanjay Yadav) (B.K. Shrivastava)
JUDGE JUDGE
1
WP-27734-2019
THE HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
Heard through Video Conferencing
Writ Petition No.27734/2019
Shri Kavindra Kiyawat
versus
State of Madhya Pradesh and others
Shri Vinay Gandhi, learned counsel for the petitioner.
Shri Satyam Agrawal, learned counsel for the respondent
No.1/SPE(Lokayukt).
Shri R.K. Verma, learned Additional Advocate General and
Shri Ashish Anand Bernard, learned Deputy Advocate General for
respondents No.2 and 3/State of M.P. and its functionaries.
CORAM :
Hon'ble Shri Justice Sanjay Yadav, Judge
Hon'ble Shri Justice B.K. Shrivastava, Judge
Date of decision : 06.08.2020
............................................................................................................................................................................................................................................
ORDER
Per Sanjay Yadav, J :-
Petitioner vide present petition under Article 226 of the Constitution of India, seeks quashment of FIR No.282/2019 dated 24.11.2019 registered against the petitioner including 15 other 2 WP-27734-2019 persons by Special Police Establishment (Lokayukt), Bhopal for the offences under Section 7 of the Prevention of Corruption Act, 1988 (as amended vide Amendment Act No.16 of 2018) read with Section 120B of the Indian Penal Code.
2. Relevant facts borne out from the FIR are that the Lokayukt Organization received a complaint from one Shri Piyush Jain on 12.03.2015 and Shri Bharat Bamne on 06.07.2015, both residents of Indore, alleging large scale corruption by the officials of the Madhya Pradesh Public Works Department and various Collectors posted at Ujjain in connivance with the Directors of a private aviation company viz., Yash Air Limited in respect of maintenance, use and development of airstrip at Datana, Ujjain. These complaints were respectively registered as 4511/C/14 and 1153/C/15 and further led to preliminary enquiry vide P.E. No.120/15 registered on 22.07.2015. The preliminary enquiry report is the genesis for registration of impugned FIR.
3. Taking us through the FIR and relying on the documents obtained through RTI, it is submitted on behalf of the petitioner that he has been falsely implicated. It is urged that the agreement which is the basis for the allegations levelled against the petitioner was 3 WP-27734-2019 entered into between M/s Yash Air Limited and the Aviation Department, Govt. of Madhya Pradesh on 31.08.2006 for maintenance, use and development of airstrip in question, was for a period of 7 years and later, extended for 3 years and the allegation with regard to non-collection of lease rent which led to alleged loss to the Government, is for the period till 2013, whereas, the petitioner was posted as Collector, Ujjain from 07.08.2014 till 27.08.2016. It is urged that the allegations are not supported by any cogent material evidence as would prima facie bring home the guilt of the petitioner. It is urged that the petitioner is a decorated officer dedicated to his service and the facts mentioned in the FIR are entirely fabricated, have no footing in any material evidence and are contrary to the facts borne out from the documents obtained from the department through RTI. It is also urged that the lodging of FIR against the petitioner, who is a Govt. servant, is contrary to and is prohibited by Section 17A of the Prevention of Corruption Act, 1988 (as amended vide Amendment Act No.16 of 2018) [for brevity "1988 Act"]. Petitioner has placed reliance on the decisions in State of Haryana vs Bhajan Lal 1992 Suppl (1) SCC 335 and 4 WP-27734-2019 Yashwant Sinha vs CBI (2020) 2 SCC 338 to bring home the submissions.
4. Respondent No.1-SPE(Lokayukt) has filed detailed return;
whereby, besides raising the objection as to maintainability of the petition under Article 226 of the Constitution, the allegations and averments are elaborately answered. However, relying on the contents of the FIR, it is contended that the allegations are not only in respect of recovery of dues qua the use of said airstrip but also as to the expenditure incurred by the State for its maintenance and development and its non recovery. It is urged that the FIR pertains to commission of offence by the aviation company viz. M/s Yash Air Limited, Indore, whose name was later changed to M/s Centaur Aviation Academy Limited, in connivance with the Government officers as to non-compliance of mandatory condition of agreement which led the Government to maintain and develop by incurring expenditure, whereas, the aviation company was allowed to use the facility. It is urged that, at the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154 of the Code of Criminal Procedure, 1973, the officer-in-charge is under an 5 WP-27734-2019 obligation to register a case and then to proceed with the investigation. In the case at hand, it is urged that, the report since disclosed a cognizable offence, it is within the competence of the officer-in-charge to register an FIR and the correctness of it cannot be adjudged on the basis of some documents obtained by the petitioner through RTI. It is further contended that after registration of FIR on 24.11.2019 before embarking upon the investigation, further action thereon has been stayed by order dated 18.12.2019 by the Indore Bench of our High Court and an application for clarification of said order has also been dismissed on 05.02.2020. It is contended that looking into the magnitude of allegations and the officers who are made co-accused, the plea was made on behalf of respondent No.1 for its transfer from Indore Bench to the Principal Seat at Jabalpur. Accordingly, it has been transferred and is before the Principal Seat. Besides these submissions, it is also stated in Paragraph 24 of the return which is reproduced for ready reference:
"24. That, it is humbly submitted that, Petitioner is holding very important and high post in the government of State of Madhya Pradesh, and having influence on all the departments. It is apparent by the reply filed by the Respondent No.3 wherein it is stated that License fees has 6 WP-27734-2019 been deposited, no offence has been made against the petitioner. It is humbly submitted that FIR has been registered with Respondent No.1, Respondent No.3 has nothing to do with the commission of offence, and specific averment from the side of respondent No.3 that no offence has been made out, specifically with the fact that the amount of Rs.6 lacs had been deposited by the co-accused after registration of FIR itself show the influence of the petitioner, and hence this petition deserves to be dismissed with the liberty to answering respondent to investigate the matter with utmost honesty and sincerity."
5. The petitioner though has filed the rejoinder; however, the averment made in paragraph 24 of the return filed by respondent No.1 is not denied. It is further contended that the provisions contained under Section 17A of 1988 Act does not prohibit registration of FIR.
6. That, Department of Aviation through its Principal Secretary and General Administration Department, through its Principal Secretary are also impleaded, though apparently not necessary party, nor even a proper party in the matter as the present one, yet General Administration Department and Department of Aviation have respectively filed their return. The return filed by Respondent No.2 7 WP-27734-2019 i.e. Aviation Department is supported by an affidavit of an Additional Collector, Ujjain, whereas, the return filed by respondent No.3 i.e. General Administration Department is supported by an affidavit of Deputy Commissioner (Revenue) Indore, Division Indore. Respondent No.2, in its return, has mainly relied on the documents adverted to by the petitioner obtained through RTI.
Whereas, Respondent No.3 has relied on the Communication No. Mh&2@36@2019@6@,d dated 06.01.2020 (wrongly mentioned as 06.01.2019) by a Deputy Secretary (Karmik) addressed to the Director General, Special Police Establishment (Lokayukt) organization calling upon him to take steps to withdraw the FIR.
The said direction is as per order, and on the basis of the opinion of Law Department.
7. Learned counsel appearing for respondent No.1 has taken exception to such an act of the Deputy Secretary, GAD. It is urged that, the communication does not reveal the Authority as to on whose instance the communication is. It is urged that the communication is not even docketed to the said Authority who has issued the direction; instead it is marked to the officers who are made accused. Even the opinion of Law Department, it is urged, is 8 WP-27734-2019 contrary to law. It is urged that the communication relied upon by respondent No.3 affirms the contention in paragraph 24 of the return filed on behalf of Lokayukt organization. Be that as it may. In the case at hand, we are not called upon to adjudicate the internal affairs of the State which can very well be looked into by its Chief Secretary as to whether when the Departments of the State are not arrayed through the State of Madhya Pradesh, they would embark upon to plead in the manner they have and whether it is as per Rule of Business.
8. As regard to legal opinion qua Section 17A of 1988 Act, we will dwell upon the same later. For the present, what is required to be seen is whether on the face of the allegations in the impugned FIR, cognizable offence is made out justifying its registration.
9. For proper appreciation, the contents of FIR are reproduced for ready reference:
eSa lrh'k dqekj oekZ] mi iqfyl v/kh{kd] Fkkuk fo'ks"k iqfyl LFkkiuk] yksdk;qDr laxBu e-iz- Hkksiky esa Fkkuk izHkkjh ds in ij inLFk gw¡A vkt fnukad 24-11-2019 dks fo'ks"k iqfyl LFkkiuk] yksdk;qDr dk;kZy; mTtSu laHkkx mTtSu ls VkbZi'kqnk nsgkrh ukfylh vi-dza- 0@26@19 /kkjk&7 Hkz-fu-vf/k-1988 ¼la'kks- 2018½ ,oaa 120ch Hkknfo dh fujh{kd Jh clar JhokLro ds }kjk VkbZi'kqnk gLrk{kfjr vkj- eks- bljkj [kku ds gLrs vly uacj ij vijk/k 9 WP-27734-2019 iathc) djus gsrq Fkkuk izkIr gqbZ udy nsgkrh ukfylh gLo tSy gS %& eSa clar JhokLro] fo'ks"k iqfyl LFkkiuk] yksdk;qDr dk;kZy;
mTtSu esa fujh{kd ds in ij inLFk gw¡A f'kdk;rdrkZ Jh ih;w"k tSu fuoklh bankSj }kjk fnukad 12-03-2015 dks ekuuh; yksdk;qDr egksn;] Hkksiky ds le{k f'kdk;r e; 'kiFki= o vfHkys[kksa ds izLrqr dh Fkh] tks eq[;ky; ij 4511@lh@14 ij ntZ gS ,oa fnukad 06-07-2015 dks f'kdk;rdrkZ Jh Hkjr ckeus fuoklh bankSj }kjk Jh ih;w"k tSu }kjk mYYksf[kr rF;ksa ds leku gh rF;ksa dk mYys[k djrs gq;s f'kdk;r izLrqr dh Fkh] tks fd f'kdk;r iath 1153@lh@15 ij ntZ gSA mDr nksuksa f'kdk;r ij ls eq[;ky; ij fo'ks"k iqfyl LFkkiuk] yksdk;qDr dk;kZy;] Hkksiky esa izkFkfed tkap dzekaad 120@15 fo:) e-iz- 'kklu foekuu foHkkx ,oa vU; 7 Hkksiky fnukad 22-07-2015 dks iathc) dj] bl bdkbZ dks fnukad 28-07-2015 dks izkIr gqbZ tks iqfyl v/kh{kd fo-LFkk] mTtSu ds vkns'k dzeakd@2400@iqv@foiqLFkk @jhMj@ 2015 mTtSu fnukad 29-07-2015 ds ek/;e ls eq>s fujh{kd clar JhokLro dks izkIr gqbZA esjs }kjk tkap ds nkSjku izkIr tkudkjh@nLrkostksa ,ao lk{khx.kksa ds dFkuksa ds vk/kkj ij ik;k x;k gS fd] e-iz- 'kklu foekuu foHkkx ds vkns'k dzekad ,Q9&6@2006 fnuakd 18-08-2006 dk i``"Bkdau dysDVj mTtSu ,oa dk;Zikyu ;a=h yksdfuekZ.k foHkkx] mTtSu ¼Hk@l½ e-iz- dks fd;k x;k Fkk] tks fd dysDVj] mTtSu ,oa dk;Zikyu ;a=h] yksd fuekZ.k foHkkx] mTtSu ¼Hk@l½ dks izkIr gks pqdk FkkA nrkuk gokbZ iVV~h ds fdjk;s ds :i esa Jh ;'kjkt VksaX;k Mk;jsDVj] lsVk¡j ,fo,'ku ,dsMeh fyfeVsM }kjk lfpo] e-iz- 'kklu foekuu foHkkx] ea=ky; oYyHk Hkou] Hkksiky dks psd ds ek/;e ls 37]500@& :i;s 25 izfr'kr ,Maokl jkf'k fnukad 21-07-2006 dks tek fd;s x;s Jh fnyhiflag jkoy] Mk;jsDVj] lsV¡kj ,fo,'ku ,dsMeh fyfeVsM }kjk lfpo] e-iz- 'kklu foekuu foHkkx] ea=ky;
10WP-27734-2019 oYyHk Hkou] Hkksiky dks psd ds ek/;e ls 1]12]500@& :i;s yk;lsal Qhl gsrq fnukad 22-02-2007 dks tek fd;s x;s bl izdkj dqy 1-50 yk[k :i;s fdjk;s ds :i esa tek fd;s x;s ,oa dk;Zikyu ;a=h] yksd fuekZ.k foHkkx] mTtSu dks psd ds ek/;e ls 33]800@& :i;s ,oa 49]000@& :i;s dqy 82]800@& :i;s fujh{k.k jkf'k fnukad 26-02-2007 ,oa Jh fnyhiflag jkoy] Mk;jsDVj] lsV¡kj ,fo,'ku ,dsMeh fyfeVsM }kjk dk;Zikyu ;a=h] yksd fuekZ.k foHkkx] mTtSu dks psd ds ek/;e ls 24]000@& :i;s ,oa 25]000@& :i;s dqy 49]000@&:i;s gokbZ iV~Vh ds esUVsusal gsrq fnukad 06-03-2007 dks tek djk;s x;s gS bl izdkj fujh{k.k ,oa esUVsusal gsrq dqy 1]31]800@& :i;s tek djk;s x;sA mDr tkudkjh dysDVj ftyk mTtSu ,oa dk;Zikyu ;a=h] Hkou ,oa lM+d] mTtSu dks Fkh] D;ksafd mUgsa Hkh mDr vkns'k dk i``"Bkadu fd;k x;k FkkA esllZ ;'k ,;j ds inkf/kdkfj;ksa }kjk mDr nrkuk gokbZ iVV~h dk la/kkj.k gsrq flQZ nks gh ckj jkf'k o"kZ 2007 esa gh tek djkbZ xbZA blds ckn e/;izns'k dh dschusV esa gq;s fu.kZ; ds vuqlkj izns'k dh fofHkUu gokbZ iVVh;ksa flaxjksy] cqjgkuiqj] nfr;k] dVuh] lruk] [k.Mok] ckyk?kkV] gks'kaxkckn] f'koiqjh] lkxj] e.Myk] mTtSu vkfn dk mUu;u djus ,oa fuekZ.k djus gsrq lacaf/kr ftyksa ls rduhfd izfrosnu pkgs x;s Fks ftlds rkjrE; esa fnukad 01-02- 2013 dks ,d rduhdh izfrosnu 266-40 yk[k :i;s dk mTtSu esa fLFkr nrkuk gokbZ iV~Vh ds mUu;u gsrq rS;kj dj] Jh th-ih- iVsy] rRdkyhu dk;Zikyu ;a=h] ¼Hk-@l-½ }kjk e-iz- 'kklu dks Hkstk x;k] ftl ij ls 266-40 yk[k dh jkf'k dh Lohd`fr dh tkdj] rduhdh Lohd`fr vkns'k v/kh{k.k ;a=h] yksdfuekZ.k foHkkx e.My] mTtSu }kjk tkjh fd;k x;k] bl ij ls rRdkyhu dk;Zikyu ;a=h Jh th-ih- iVsy }kjk dk;kZns'k Bsdsnkj fgEer flag varjflag dks fn;k x;k rRi'pkr~ eq[; vfHk;ark] yksd fuekZ.k foHkkx] mTtSu ls fnukad 23- 11 WP-27734-2019 01-2014 ls Bsdsnkj fgEer flag firk vrajflag dks mDr fufonk Lohd`fr nh xbZ rFk fufonk Lohd`fr mijkar dk;kZns'k fnukad 28-01- 2014 dks nsdj dk;Z izkjaHk fd;k x;kA ,e-ch- ij vafdrkuqlkj Bsdsnkj }kjk mDr dk;Z :i;s 292-39 Ykk[k esa fnukad 15-07-2014 dks iw.kZ fd;k x;kA dk;Z iw.kZrk izek.k i= lacaf/kr mi;a=h Jh vt; ;kno }kjk ,e-ch- ij vafdr fd;k x;kA e-iz- 'kklu }kjk fn;s x;s vkns'k ,oa fd;s x;s vuqca/k ds vuqlkj ;'k ,;j fyfeVsM] bankSj@lsaVkj ,sfo,'ku ,dsMeh] bankSj }kjk e-iz- 'kklu dks dsoy dqy 1-50 yk[k :i;s fdjk;s ds :i esa tek djk;s x;s tcfd mudk vuqca/k 10 o"kksaZ dk Fkk ,oa o"kZ 2013 rd mDr gokbZ iVVh ifjpkfyr Fkh ,oa o"kZ 2013 ds ckn gokbZ iVVh ij ifjpkyu can gks x;k Fkk bl izdkj bUgsa gokbZ iVVh dh ifjpkyu vof/k foxr 7 o"kksZa esa 10]50]000@& :i;s tek djkus Fks blds ,ot esa buds }kjk dsoy 1-50 yk[k :i;s gh fdjk;s ds tek djk;s x;s ftlls 'kklu dks 09 yk[k :i;s dh vkfFkZd gkfu gqbZ gSA ;g fd] nrkuk gokbZ iV~Vh ds la/kkj.k gsrq ;'k ,;j fyfeVsM] bankSj@lsaVkj ,sfo,'ku ,dsMeh] bankSj us dqy 1]31]800@& :i;s gokbZ iV~Vh ds la/kkj.k gsrq dk;Zikyu ;a=h] yksd fuekZ.k foHkkx] mTtSu ds ikl tek djk;s x;sA ;g fd] Jh f'ko 'ks[kj 'kqDyk] rRdkyhu ftyk/kh'k ftyk mTtSu] Jh vtkr 'k=q JhokLro] rRdkyhu ftyk/kh'k] ftyk mTtSu] Jherh Mkaa ,e- xhrk] rRdkyhu ftyk/kh'k] ftyk mTtSu] Jh ch-,e- 'kekZ] rRdkyhu ftyk/kh'k] ftyk mTtSu] Jh dohUnz fd;kor] rRdkyhu ftyk/kh'k] ftyk mTtSu rRdkyhu dysDVjx.k] ftyk mTtSu ,oa Jh ,l-,l-lywtk] rRdkyhu dk;Zikyu ;a=h] ¼Hk-@i-½ yksd fuekZ.k foHkkx] mTtSu] Jh ,-ds-VqVstk] rRdkyhu] dk;Zikyu ;a=h] ¼Hk-@i-½ yksd fuekZ.k foHkkx] mTtSu] Jh th-ih- iVsy rRdkyhu] dk;Zikyu ;a=h] ¼Hk-@i-½ yksd fuekZ.k foHkkx] mTtSu dks ;g lqfuf'pr djuk Fkk fd nrkuk gokbZ iVVh pyk;eku 12 WP-27734-2019 voLFkk esa jgs ,oa bldk mfpr j[kj[kko le;≤ ij gksrk jgs ,oa ;'k ,;j fyfeVsM] bankSj@lsaVkj ,sfo,'ku ,dsMeh] bankSj } kjk vuqca/k vuqlkj okf"kZd fdjk;s dh jkf'k ,oa mDr gokbZ iVVh ds esUVsausl dh jkf'k le;≤ ij 'kklu ds en esa tek djkbZ tkrh jgsA ;'k ,;j fyfeVsM] bankSj@lasVkj ,sfo,'ku ,dsMeh] bankSj ds lapkydx.k Jh v:.k xqVZw] Jh ;'kjkt VksX;k] Jh Hkjr VksaX;k ,oa Jh fnyhi jkoy ds }kjk nrkuk gokbZ iVVh dh fdjk;s dh jkf'k 1]50]000@& :i;s okf"kZd jkf'k tks fd] buds }kjk le;≤ ij tek djkbZ tkuh Fkh buds }kjk dsoy 1-50 yk[k :i;s gh tek djk;s x;s gS] ftlls 'kkludks 9]00]000@&:i;s dh vfFkZd {kfr buds }kjk igqapkbZ xbZA bl izdkj ftyk mTtSu esa rRle;kof/k esa inLFk rRdkyhu dysDVjx.kksa ,ao dk;Zikyu ;a=hx.kksa ¼Hk-i-½ yksd fuekZ.k foHkkx] mTtSu rFkk ;'k ,;j fyfeVsM] bankSj@lasVkj ,sfo,'ku ,dsMeh] bankSj ds lHkh lapkydx.kksa }kjk vkilh lkaBxkaB ,oa "kM;a= dj e-iz 'kklu dks 9]00]000@& :i;s dh vkfFkZd {kfr ,oa o"kZ 2013 ls mTtSu fLFkr nrkuk gokbZ iV~Vh dk ifjpkyu can gksus ds dkj.k vukosndx.kksa ds }kjk fd;s x;s bl vkijkf/kd d``R; ls e-iz- 'kklu dks vkfFkZd {kfr vukosndx.kksa }kjk igqpkbZ xbZ gSA mijksDr vukosndx.kksa 1& Jh f'ko 'ks[kj 'kqDyk] rRdkyhu ftyk/kh'k ftyk mTtSu 2& Jh vtkr 'k=q JhokLro] ,e-'kekZ] rRdkyhu ftyk/kh'k] ftyk mTtSu 3&Jhefr Mka- ,e-xhrk] rRdkyhu ftyk/kh'k] ftyk mTtSu 4&Jh ch-,e-'kekZ] rRdkyhu ftyk/kh'k] ftyk mTtSu 5&Jh dohUnz fd;kor] rRdkyhu ftyk/kh'k] ftyk mTtSu 6&Jh ,l-,l lywtk] rRdkyhu] dk;Zikyu ;a=h] ¼Hk- @i-½ yksd fuekZ.k foHkkx] mTtSu 7&Jh ,-ds-VqVstk] rRdkyhu] dk;Zikyu ;a=h] ¼Hk-@i-½] yksd fuekZ.k foHkkx] mTtSu 8& Jh th-ih- iVsy] rRdkyhu] dk;Zikyu ;a=h] ¼Hk-@ia-½ yksd fuekZ.k foHkkx] mTtSu ds }kjk vius in dk nq:i;ksx dj ;'k ,;j fyfeVsM] 13 WP-27734-2019 bankSj@lasaVkj ,sfo,'ku ,dsMeh] bankSj ds lHkh lapkyux.k 9& Jh v:.k xqVZw] lapkyd 10& Jh ;'kjkt VksX;k] lapkyd 11&Jh Hkjr VksaX;k] lapkyd 12& Jh f'kjh"k pqUuhyky nyky] lapkyd 13& Jh ohtsUnzdqekj tSu] lapkyd 14&Jh nq";aryky diwj] lapkyd 15& Jh f'kojeu] lapkyd 16& Jh fnyhi jkoy] lapkyd ,oa vU; ds fo:) izFke n`"V;k vijk/k /kkjk&7 Hkz-fu-vf/k- 1988 ¼la'kks/ku&2018½ ,oa /kkjk 120&ch Hkk-n-fo- ds varxZr ik;s tkus ls 'kwU; ij vijk/k dzekad 0@26@2019 /kkjk&7 Hkz-fu-vf/k- 1988 ¼la'kks/ku&2018½ ,oa /kkjk 120&ch Hkk-n-fo- iathc) dj foospuk esa fy;k x;kA
10. Close reading of the FIR would reveal that the complaint is not only in respect of recovery of lease rent but also of non-recovery of expenditure incurred by the State for maintenance and development carried out during subsistence of the agreement which was till August, 2016. During the said period, the petitioner was holding the charge of Collector, Ujjain. Thus, prima facie it cannot be said that no cognizable offence is made out. The investigation is yet to be completed. The explanation tendered by the petitioner on the basis of the documents obtained from the State Government through RTI and the stand taken by the Principal Secretaries of Aviation and General Administration Department, cannot be adjudicated at the stage when the investigation is not complete. In 14 WP-27734-2019 our considered opinion, the case does not fall under any of the seven exceptions in Bhajan Lal (supra).
11. Dwelling on the scope and applicability of the guidelines laid down in Bhajan Lal (supra) it is held in B.S. Joshi vs State of Haryana (2003) 4 SCC 675 :
"5. After reproducing the seven categories of cases as given in para 102 of Bhajan Lal's case, the High Court has held that the parameters, principles and guidelines for quashing of complaints, first information report and criminal proceedings have been settled in terms thereof and has concluded therefrom that the instant case does not fall in any of the said categories. It is quite clear that the High Court has lost sight of the earlier part of para 102 which made it abundantly clear that the said categories of cases were being given by way of illustration. Neither the categories of cases given were exhaustive nor it could be so. Before giving those categories, it was said in Bhajan Lal's case that :
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure 15 WP-27734-2019 the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised."
6. In Pepsi Food Ltd. vs Special Judicial Magistrate (1998) 5 SCC 749, this Court with reference to Bhajan Lal's case observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers."
12. In M. Narayandas vs State of Karnataka JT 2003 (Supp. 1) SC 412, it is held :
"5. Before dealing with the High Court judgment, which has been impugned, it is first necessary to set out well settled law. The law has been very succinctly set out in the case of State of Haryana v. Bhajan Lal, reported in [1992] Supp. 1 SCC 335. In this case the High Court had quashed an FIR. While setting aside the High Court judgment this Court held as follows :16
WP-27734-2019 "31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer can not embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub- section (3) of Section 154 of the Code.
32. Be it noted that in Section 154 (1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(l)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non-17
WP-27734-2019 qualification of the word "information" in Section 154 (1) unlike in Section 4 l(l)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that 'every complaint' preferred to an officer in charge of a police station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.
33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the 18 WP-27734-2019 substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.
(emphasis supplied) xxxxxx
40. The core of the above sections namely 156, 157 and 159 of the Code is that if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be proceeded with by his subordinate, that in a case where the police officer sees no sufficient ground for investigation, he can dispense with the investigation altogether; that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the court cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the concerned Magistrate can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code.
(emphasis supplied) xxxxxx
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any 19 WP-27734-2019 court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code of the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance 20 WP-27734-2019 on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the count will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
It must also be mentioned that it is settled law that the power to quash must be exercised very sparingly and with circumspection. It must be exercised in the rarest of rare cases. It is also settled law that the Court would not be justified in embarking upon an Inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR. The Court also cannot inquire whether the allegations in the complaint are likely to be established or not."
13. In State of Tamil Nadu vs S. Martin (2018) 5 SCC 718, dwelling on the scope of assessment to be made by the High Court under Section 482 CrPC at a stage when investigation in a cognizable offence was yet to be completed, it is held :
7. In our view, the assessment made by the High Court at a stage when the investigation was yet to be completed, is completely incorrect and uncalled for. Presence of two crucial facts was enough to let the investigation go on, namely, recovery of huge amount of cash of Rs.7.2 crores 21 WP-27734-2019 from the house of one of the accused and that such recovery was accepted by the accused. The explanation given by them about the alleged transaction of agreement of sale and receipt of cash in pursuance thereof does not prima facie appear to be correct. The agreement is stated to have been entered on 02.03.2012 while the stamp paper in question was issued by the relevant department on 09.03.2012 to the vendor which was later sold to lady named Vimla on 13.3.2012. Whether the possession of huge cash amounting to Rs. 7.2 crores can be explained by the accused and whether such explanation be accepted or not, are all matters which will be gone into at the relevant stage in the proceedings. The investigation in any case ought not to have been set at naught but it ought to have been permitted to be taken to its logical conclusion.
(Emphasis supplied)
14. In view whereof, we are not inclined to cause any indulgence with the FIR which on the face of its contents prima facie makes out a cognizable offence.
15. The FIR is challenged on yet another ground that it is not tenable and is barred by Section 17A of 1988 Act.
16. Section 17A was inserted by Act 16 of 2018 w.e.f. 26.07.2018.
The provision is reproduced for ready reference:
22WP-27734-2019 "17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.- No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval -
(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:
Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:
Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month."23
WP-27734-2019
17. Plain reading of the provision indicates that it only prohibits conducting of any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under 1988 Act if such offence is relatable to any recommendation made or decision taken by such public servant under 1988 Act in discharge of his official functions or duties without the previous approval of the Union/State Government or the appointing authority, as the case may be. The provision of Section 17A does not prohibit lodging of an FIR and in case such information discloses a cognizable offence, it is imperative for a police officer under Section 154(1) of CrPC to register a crime (please see paragraph 31 and 32 of Bhajan Lal (supra)).
18. Thus, lodging of an FIR and registration of crime thereon is different than conducting an enquiry or inquiry or investigation. The contrary opinion given by the Law Department of State forming the basis for the Communication No.Mh&2@36@2019@6@,d dated 06.01.2020 by the Deputy Secretary, GAD (supra) is non est in the eyes of law. In the case at hand, pertinent it is to note that the preliminary enquiry was conducted much before 26.07.2018 when Section 17A was inserted vide Amendment Act No.16 of 2018. It is 24 WP-27734-2019 also not the case of the petitioner that the preliminary enquiry conducted by the Lokayukt organization is hit by Section 17A of 1988 Act. The observation in Paragraphs 1161 to 1191 of the decision in Yashwant Sinha (supra), reliance whereon is placed by learned counsel for the petitioner against registration of crime, -
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1116. In the year 2018, the Prevention of Corruption (Amendment) Act, 2018 (hereinafter referred to as "the 2018 Act", for short) was brought into force on 26-7-2018. Thereunder, Section 17-A, a new section was inserted, which reads as follows:
"17-A. Enquiry or inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.--(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval--
(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;
(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:
Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:
Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month."
(emphasis supplied)
117. In terms of Section 17-A, no police officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his office at the time when the offence was alleged to have been committed. In respect of the public servant, who is involved in this case, it is clause (c), which is applicable. Unless, therefore, there is previous approval, there could be neither inquiry or enquiry or investigation. It is in this context apposite to notice that the complaint, which has been filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first respondent CBI, is done after Section 17-A was inserted. The complaint is dated 4-10-2018. Para 5 sets out the relief which is sought in the complaint which is to register an FIR under various provisions. Paras 6 and 7 of the complaint are relevant in the context of Section 17-A, which read as follows:
"6. We are also aware that recently, Section 17-A of the Act has been brought in by way of an amendment to introduce the requirement of prior permission of the Government for investigation or inquiry under the Prevention of Corruption Act.
7. We are also aware that this will place you in the peculiar situation, of having to ask the accused himself, for permission to investigate a case against him. We realise that your hands are tied in this matter, but we request you to at least take the first step, of seeking permission of the Government under Section 17-A of the Prevention of Corruption Act for investigating this offence and under which, "the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month"."
(emphasis supplied)
118. Therefore, the petitioners have filed the complaint fully knowing that Section 17-A constituted a bar to any inquiry or enquiry or investigation unless there was previous approval. In fact, a request is made to at least take the first step of seeking permission under Section 17-A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed on 24-10-2018 and the complaint is based on non-registration of the FIR. There is no challenge to Section 17-A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17-A continues to be on the statute book and it constitutes a bar to any inquiry or enquiry or investigation. The petitioners themselves, in the complaint, request to seek approval in terms of Section 17-A but when it comes to the relief sought in the writ petition, there was no relief claimed in this behalf.
119. Even proceeding on the basis that on petitioners' complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17-A. I am, therefore, of the view that though otherwise the petitioners in Writ Petition (Criminal) No. 298 of 2018 may have made out a case, having regard to the law actually laid down in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , and more importantly, Section 17-A of the Prevention of Corruption Act, in a review petition, the petitioners cannot succeed. However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent in Writ Petition (Criminal) No. 298 of 2018 from taking action on Ext. P-1, complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17-A of the Prevention of Corruption Act.
25WP-27734-2019
- in our humble opinion, is to be understood in the context of observation in Paragraphs 107 and 108, wherein their Lordships were pleased to hold :
107. However, the directions contained in paragraph 120 of the Constitution Bench decision in Lalita Kumari (supra) must be further appreciated. In this case, the petitioners in Writ Petition (Criminal) No. 298 of 2018, have indeed moved an elaborate written complaint before the first respondent-CBI. The complaint that is made, attempts to make out the commission of a cognizable offences under the Prevention of Corruption Act.
Paragraph 120.1 of Lalita Kumari (supra), declares registration of FIR is mandatory if information discloses commission of a cognizable offence. The Constitution Bench debarred any preliminary inquiry in such a situation. It is apposite that paragraph 120.5 is noticed at this stage. This Court held that the scope of the preliminary inquiry is not to verify the veracity or otherwise of the information received but it is only to ascertain whether the information reveals any cognizable offence. Coming back to paragraph 120.2, it is laid down by this Court that if the information does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to 26 WP-27734-2019 ascertain whether cognizable offence is disclosed or not. It is beyond dispute that the offences which are mentioned in the complaint filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018 are cognizable offences. Again, coming back to paragraph 120.3 in Lalita Kumari (supra) read with paragraphs 120.2 and 120.5, if the inquiry discloses commission of a cognizable offence, the FIR must be registered. Where, however, the preliminary inquiry ends in closing the complaint, the first informant must be informed in writing forthwith and not later than a week. That apart, reasons, in brief, must also be disclosed.
108. Paragraph 120.6 deals with the type of cases in which preliminary inquiry may be made. Corruption cases are one of the categories of cases where a preliminary inquiry may be conducted. Also, cases where there is abnormal delay or laches in initiating criminal prosecution, for example over three months delay in reporting the matter without satisfactorily explaining the reasons for the delay. As can be noticed from paragraph 120.6, medical negligence cases, matrimonial disputes, commercial offences are also cases in which a preliminary inquiry may be made. In order to appreciate the scope of paragraph 120.6, it is necessary to advert to paragraphs 115 to 119, which read as follows:
"Exceptions
115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, 27 WP-27734-2019 yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.
116. In the context of medical negligence cases, in Jacob Mathew vs State of Punjab, (2005) 6 SCC 1, it was held by this Court as under:
"51. We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasise the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefer recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of 28 WP-27734-2019 rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582 test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld."
117. In the context of offences relating to corruption, this Court in P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 expressed the need for a preliminary inquiry before proceeding against public servants.
118. Similarly, in Tapan Kumar Singh [CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305] , this Court has validated a preliminary inquiry prior to registering an FIR only on the ground that at the time the first information is received, the same does not disclose a cognizable offence.
119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions 29 WP-27734-2019 the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR."
19. In view whereof, the petitioner is not benefited by the observation in paragraphs 116 to 119 of the decision in Yashwant Sinha (supra), on the contrary observations in paragraphs 107 and 108 lend support to our view that, in the case as the present one, filing of FIR and the registration of crime thereon is not barred by Section 17A of 1988 Act (as amended vide Act No.16 of 2018).
20. Having thus considered, we do not perceive any merit in the challenge put forth by the petitioner to registration of crime vide FIR No.282/2019 dated 24.11.2019.
21. However, before parting, we make it clear that we have not expressed any opinion nor have prejudged on merits of the matter, which is the subject matter of investigation.
30WP-27734-2019
22. Consequently, petition fails and is dismissed. No costs.
(Sanjay Yadav) (B.K. Shrivastava)
JUDGE JUDGE
vinod
-1-
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR Case No. W.P. No.27734/2019 Parties Name Kavindra Kiyawat Vs State of M.P. & Others Date of Order Bench Constituted Hon'ble Shri Justice Sanjay Yadav and Hon'ble Shri Justice B.K. Shrivastava Order passed by Justice B.K. Shrivastava Whether approved for reporting Name of counsel for parties For Petitioner : Vinay Gandhi, Advocate For Respondent No.1: Shri Satyam Agrawal, Advocate.
Respondents No.2 and 3:- Shri R.K. Verma, Additional Advocate General with Shri Aashish Anand Bernand, Deputy Advocate General.
Law laid down Significant paragraph number (O R D E R) 11.08.2020 As per: B.K. Shrivastava, J.
23. It is my honour to get the opportunity to read the order written by my learned brother Hon'ble Shri Justice Sanjay Yadav.
The aforesaid order runs upto para 22, therefore, I start my order from para No. 23.
-2-24. The facts of the case have been mentioned by my learned brother Judge, therefore, repetition is not necessary. The main question involved in this petition filed under Section 482 of Cr.P.C is related to the registration of FIR against the present petitioner. As per petitioner FIR should not be registered against him because he was not posted during the period, in which the said crime was alleged to be committed.
25. Section 482 of the Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court, namely -
(i) to give effect to an order under Cr. P. C.;
(ii) to prevent an abuse of the process of Court; and
(iii) to otherwise secure the ends of justice.
It is trite that although the power possessed by the High Court under the said provision is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists. Nevertheless, it is neither feasible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Courts. Court would be justified in invoking its inherent jurisdiction to quash criminal proceedings where the allegations made in the Complaint or Charge-sheet, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged.
26. In State of Haryana and Ors. v. Bhajan Lal and Ors. MANU/SC/0115/1992 : (1992) Supp (1) SCC 335, Apex Court has set out the categories of cases in which the inherent power Under Section 482 of Code of Criminal Procedure can be exercised. Court said that the extraordinary power Under Article 226 of the Constitution or inherent power Under Section 482 Code of Criminal Procedure could be exercised either to prevent abuse of the process of any court or -3- otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised . Para 102 of the judgment reads as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power Under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the Accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the Accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of -4- which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the Accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Accused and with a view to spite him due to private and personal grudge."
(underline by me)
27. In Anand Kumar Mohatta and Ors. Vs. State (Govt. of NCT of Delhi) Department of Home and Ors., AIR 2019 SC 210 = 2018 (4) MLJ (Crl) 732 = MANU/SC/1281/2018 , while allowing the appeal the apex court held that High court can exercise jurisdiction Under Section 482 of Code of Criminal Procedure even to prevent the abuse of process of court or miscarriage of justice when the discharge application is pending with the trial court. The Court said :-
"17. There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can exercise jurisdiction Under Section 482 of Code of Criminal Procedure even when the discharge application is pending with the trial court [G. Sagar Suri and Anr. v. State of U.P and Ors. MANU/SC/0045/2000 : (2000) 2 SCC 636]. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge -5- sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."
28. In State of Karnataka v. L. Muniswamy and Ors. MANU/SC/0143/1977 : 1977 (2) SCC 699 the apex Court said :-
"7. ...In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice...."
29. In Munshiram Vs. Respondent: State of Rajasthan and Ors., AIR 2018 SC 1923, = 2018 CriLJ 2412 = 2018(2) Crimes 58 (SC ) = (2018) 5 SCC 678 the Apex court said that it is no more res integra that Section 482 of Code of Criminal Procedure has to be utilized cautiously while quashing the FIR. Court again said that in a catena of cases this Court has quashed FIR only after it comes to a conclusion that continuing investigation in such cases would only amount to abuse of the process.
30. It is also established law that, if the information given to the police discloses the commission of cognizable offence, Police is bound to register the FIR, but if the information does not disclose any cognizable offence then FIR need not to be registered immediately and perhaps the Police can conduct a sort of preliminary verification or inquiry for the limited purpose to ascertain as to whether the cognizable -6- offence has been committed or not ? It is also established that if the information given clearly mentions the commission of cognizable offence, then there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as whether the information is falsely given, whether the information is genuine and whether the information is credible etc. At the stage of registration of FIR, what is to be seen merely whether the information given ex-facio discloses the commission of cognizable offence. (See Lalita Kumari Vs. State of U.P. (2014) 2 SCC 1 and Jackup Mathew Vs. State of Punjab (2005) 6 SCC 1).
31. Therefore, it is clear from the aforesaid law that, at the time of registration the First Information Report, question to be considered is whether any "cognizable offence" is disclosed or not ? And the second question also to be considered is that "against whom the FIR should be registered". In the case of Bhajanlal (supra) the word "Make out a case against the accused" has been used. It means if at the time of registration of FIR the positive information is available against the accused who committed the crime, then FIR should be registered against the named accused. It is also true that if the FIR does not disclose the name of accused who committed the crime, then the FIR may be registered against the "unknown person". Therefore, if at the time of registration of FIR no material is available against any person then his name should not be mentioned as an accused in the FIR. It is also established law that if during the investigation the investigation agency comes to the conclusion that any other person not named in FIR has committed the crime, then he may be included as an accused and the chargesheet may be filed against him. During the investigation the police collects various information and upon the basis of that information the Police/investigation agency may come to the conclusion -7- that somebody has committed the crime, then he may be included as an accused. There is no any restriction to include any other accused. Even the Court also has the power under Section 319 of Cr.P.C to add an accused, who appears to be involved in the crime.
32. After investigation the investigation agency may file the challan or may file the closure report. If the closure report is filed, then concerned Court having three options. One is to accept the closure report, second is to take the cognizance of the offence and third is to direct the investigation agency for further investigation on some other points. Therefore, wide powers are available to investigation agency and to the Court. But, at the time of registration of crime it should be seen that the name of unnecessary accused should not be included otherwise it creates a stigma on the career of the accused because mentioning his name in the FIR as an accused. Prescribed form of FIR shows that the column No.7 is prescribed for mentioning the name of the accused known or unknown. In this case in the FIR Ex.A/1 the name of present petitioner is also mentioned at Sr. No.5 in the capacity of the then Collector Ujjain. Therefore, it is required that some material should be available against the present petitioner at the time of registration of FIR.
33. It appears from the record that a person named Piyush Jain filed a complaint before the Lokayukt on 09.03.2015/12.03.2015, which was registered as complaint No.4511/C/14 in the complaint register. Another person Bharat Bamne also filed a complaint on 06.07.2015, which was register as complaint No.1153/C/15. Upon the basis of aforesaid two complaints a primary inquiry No.120/15 was registered and the matter was forwarded to Lokayukt, Ujjain on 22.07.2015. Thereafter by order No.2400/2015 dated 29.07.2015, Superintendent of Police, Special Police Establishment, Ujjain made over the preliminary -8- inquiry to the Inspector Basant Shrivastava, who conducted the inquiry during the period of 29.07.2015 to 24.11.2019. Thereafter on 24.11.2019 crime No.282/2019 under Section 7 of Prevention of Corruption Act and Section 120-B of IPC was registered by Lokayukt Establishment against 16 persons including the present petitioner. The column No.12 contains the detaila of FIR. It appears that the aforesaid FIR has been registered upon the basis of preliminary inquiry report submitted by Basant Shrivastava Inspector, Special Police, Establishment Ujjain.
34. The complaint submitted by Piyush Jain was against 8 non- applicants/accused. The complaint filed by Bharat Bamne was against 7 non-applicants/accused. It appears from both the complaints that the name of present petitioner was not included in both the complaints. Only one person holding the post of Collector is included in both the complaints, therefore, it appears that initially both complaints were not filed against the petitioner.
35. Preliminary inquiry report dated 14.11.2019 submitted by Basant Shrivastava, Inspector shows that in the last para it is mentioned that the Collectors posted during the year 2007 to 2013 are responsible along with other officials of PWD etc. The language mentioned by the Inspector in hindi as "इस पककर जजलक उजजन मम 2007 सस 2013 तक पदसथ ततककललन कलसकटरगण जजनमसa ......" names of Collectors are mentioned in the aforesaid para, in which the petitioner is shown at Sr. No.5. The aforesaid report submitted by Inspector was forwarded by the Superintendent of Police, Special Police Establishment Lokayukt, Ujjain on 14.11.2019 to Inspector General of Lokaykut, Bhopal, vide letter No.3260, dated 14.11.2019. The Superintendent of Police also mentioned the aforesaid fact by saying "इस पककर जजलक उजजन मम 2007 सस 2013 तक पदसथ ततककललन कलसकटरगण -9- जजनमसa ......" at Sr. No.5 the Superintendent of Police also mentioned the name of present petitioner.
36. In the report submitted by the Inquiry Officer and the letter of Superintendent of Police Lokayukt, Ujjain shows that the accused persons caused the damage of Rs.9 Lacs because the rent of Rs.1.5 Lacs was deposited only during the aforesaid period 2007 to 2013.
37. It appears from the record that by order dated 07.08.2014 (Annexure A/5), the petitioner was posted as Collector, Ujjain and he joined on 12.08.2014 and by order dated 27.08.2016 (Annexure A/6) the petitioner again transferred from Ujjain and he relieved on 29.07.2016. Therefore, it is not disputed that the petitioner was posted as "Collector Ujjain" during the period 12.08.2014 to 29.07.2016. While the report shows that the rent was required to be deposited during the period of 2007 to 2013. During that period the applicant was not posted as Collector Ujjain. Therefore, prima facie, it can be said that the material against the present petitioner was not available with the Investigation Agency at the time of registration of crime. It is different thing that if during investigation the investigation agency found any involvement of the present petitioner, the agency may include the name of present petitioner as an accused, but at the time of registration of crime mentioning the name of present petitioner as an accused was not justified.
38. During arguments, it is also alleged by the respondent No.1 that FIR reveals that the complaint is not only in respect of recovery of lease rent, but also of non recovery of expenditure incurred by the State for maintenance and development carried out during the subsistence of the agreement, which was in force till August, 2016. But, it appears from the document that the work was sanctioned by the order of Chief Minister dated 17.05.2012 (Annexure R/2/11, Page No.63). As per the -10- aforesaid direction the meeting was organized on 10.04.2003 (Annexure R/2/11, Page No.64). As per the decision taken by the Committee the proposal for maintenance and the enhancement of facilities was sent and the estimate was made for Rs.266.40 Lacs, which was sent for administrative sanction (Annexure R/2/11, Page No.65 and 66). The administrative sanction for Rs.266.40 Lacs was also issued vide Annexure R/2/11, Page No.67 on 17.05.2013, therefore, from the date of meeting of Chief Minister 17.05.2012 till the date of administrative sanction dated 17.05.2013 and the work completion date 15.07.2014 the petitioner was also not posted as Collector, Ujjain because he joined his duty on 12.08.2014. Therefore, because the sanction was already granted by the State Government as per prescribed procedure, therefore, the petitioner cannot be held liable for any expenditure.
39. At present the investigation is in preliminary stage. After inquiry the crime was registered on 24.11.2019 and the High Court granted the stay upon the investigation on 18.12.2019, therefore, during the period 24.11.2019 to 18.12.2019 the investigation was on preliminary stage. If the material is not available against the present petitioner then his name should not be mentioned in the FIR and the FIR is liable to be quashed in reference to the present petitioner only.
40. Section 17(A) was inserted by the Act of 16 of 2018 w.e.f 26.07.2018. The provision has been quoted by my learned brother Judge in his judgment. I am completely agree with the observation made by my brother Judge that the petitioner is not entitled to get the benefit of aforesaid section because the inquiry was already pending when the section was inserted in the Act.
41. It appears that on 06.12.2019 the petitioner submitted a representation to the Chief Minister, Lokayukt, Chief Secretary and Principle Secretary GAD etc and the State Government issued an order -11- Annexure R/1 bearing No.D-2/36/2019/6/1/06.01.2020, in which the request for withdrawal of FIR was made upon the basis of opinion given by the Law Department of M.P. Because the preliminary inquiry was already pending and the section 17(A) was inserted later on, therefore, the aforesaid letter of GAD have no any meaning at this stage.
42. It is also submitted by the petitioner that the entire amount of rent was already deposited. The petitioner mentioned the details of the payment in his reply. The respondent No.2 also admitted that the entire amount has been paid and there is not due against the Aviation Company. It is also submitted that the maintenance and the enhancement of work was done as per the Government order and not by the order of accused persons. It is also alleged that the amount was deposited after registration of FIR, but in reply it is submitted by the petitioner that the earnest money was already with the Government and the aforesaid earnest money was adjusted vide letter No.1779, dated 17.05.1979 (Annexure A/19). After adjusting the amount of Rs.6,05,756/- the remaining amount of Rs.1,64,526/- was immediately deposited vide demand draft and the information was also given vide letter dated 15.06.2019. The aforesaid facts are the defence of the accused. The defence of any accused cannot be seen at the stage of registration of FIR. The investigation agency is expected to verify all possible defence of the accused to ascertain the fact whether any amount was actually due or not ? If the alleged amount has already been deposited, then definitely no offence would be made out.
43. Therefore, in my view FIR against the present petitioner has been registered without any basis. He was not posted during the alleged period as Collector, Ujjain. Therefore, FIR No.282/2019 registered on -12- 24.11.2019 is partially quashed in reference to the name of present petitioner Shri Kavindra Kiyawat.
(Sanjay Yadav) (B.K. Shrivastava)
Judge Judge
Vin**
Digitally signed by
VINOD VISHWAKARMA
Date: 2020.08.11
15:44:04 +05'30'