Madhya Pradesh High Court
Mohd. Riyazu Ddin vs The State Of Madhya Pradesh on 25 October, 2016
Author: Anjuli Palo
Bench: Anjuli Palo
WP-874-2016
(MOHD. RIYAZU DDIN Vs THE STATE OF MADHYA PRADESH)
25-10-2016
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
W.P. No. 874/2016
Mohd. Riyazu-uddin
Vs.
State of M.P. & Others
Present: HonâÂÂble Shri Rajendra Menon, Acting Chief
Justice
& Hon'ble Smt. Anjuli Palo, J.
_______________________________________________________
Shri R. S. Verma, learned counsel for the petitioner.
Shri K. S. Wadhwa, learned Additional Advocate General for
respondent No.1 and 2.
Shri V. K. Tankha, learned Senior Counsel with Shri Praveen
Dubey for respondent No.3.
___________________________________________________
ORDER
( 25.10.2016) Petitioner Mohd. Riyazu-ddin claiming to be a public spirited person, an Advocate practicing in Bhopal has filed this petition pro bono publicano and the relief claimed by him in the writ petition in para 11 reads as under :-
"11. Relief(s) prayed for :-
The Hon'ble Court be pleased to issue :-
(i) This Hon'ble Court may kindly be pleased to direct the respondent No.2 to implement the order dated 3.2.2011 passed in Criminal Appeal No.511 of 2006, in the interest of justice.
(ii) Any other relief which this Hon'ble Court may deem and fit, may kindly also be granted in the facts and circumstances including cost of the petition.
2. It is indicated in the writ petition that respondent No.3 while working as Managing Director of the M.P. State Industrial Development Corporation during the period from 20th January 2000 to 8th January 2004 has committed certain acts of commission and omission due to which a FIR was registered against him 24.7.2014 by the State Bureau of Investigation against economic offences and when investigation into the FIR was in progress, respondent No.3 challenged the same before this Court in a petition filed under Section 482 being M.Cr.C. No.8235/2005 and a Bench of this Court on 19.1.2006 quashed the FIR. Aggrieved by the aforesaid order passed, the investigating authority filed Criminal Appeal No.511/2006 and on 3.2.2011 the Hon'ble Supreme Court allowed the appeal, set aside the order passed by the High Court in the matter of quashing the FIR and passed following order :-
"We feel that the order of the High Court quashing the F.I.R. cannot be sustained but we decline to give reasons as the learned counsel for the parties apprehend that this may prejudice either of the parties during the course of the proceedings hereinafter. We however, direct that the matter be investigated afresh and Mr. S. K. Dubey, the learned Senior Counsel for the appellant State assures that the investigation will be completed within three months. We also state that the Investigating Officer will keep in mind that every mistake or error committed by an officer need not amount to a criminal act and that in the normal course of official duties mistakes may and do occur. We direct that this aspect will be examined by the Investigating Officer very carefully. We also direct that the respondent will be given all opportunity to project his views and will also be permitted to furnish such documents as are necessary during the course of the investigation."
(Emphasis Supplied)
3. In an innocuous way this writ petition has been filed and it is said that even though the order was passed by the Supreme Court in the year 2011, investigation has not been completed, and therefore, by making allegation against the investigating authorities it is alleged that investigation is not being completed respondent No.1 and 2 are trying to protect respondent No.3, petitioner claiming to be a public spirited person has filed petition in public interest. When the matter came up before us, a question was raised with regard to locus standi of the petitioner in filing the writ petition and serious objections were raised by learned counsel appearing for the State questioning the locus standi of the petitioner. However, on 12.7.2016 when the matter was being heard by the Coordinate Bench of this Court, wherein one of us (Rajendra Menon, J.) was a Member, we passed the following order on 12.7.2016 :-
"Parties through their counsel.
Having heard learned counsel for the parties and on consideration of the reply submitted by respondent No.2 it transpires that after investigation by respondent No.2 in the matter of prosecution of respondent No.3, the prosecuting authority has forwarded the case to the State Government for sanction and in the absence of sanction, respondent No.2 expressed that inability to proceed further in the matter. The reply filed by the State Government only questions the locus standi of the petitioner to file this petition. Even if the petitioner does not have any locus standi in public interest, this Court can take cognizance of the matter as the question pertains to sanction for prosecution of a senior official of the State Government.
Accordingly State Government to show cause as to why the matter is kept pending and why sanction for prosecution has not been accorded till date. Let an affidavit of the competent authority of the State Government be filed within four weeks. In the meanwhile, notice be also issued to respondent No.3 by the office as he still not represented in the matter.
List after four weeks"
4. Apart from questioning the locus standi of the petitioner on 12.7.2016, this Court was informed that the matter is pending with the competent authority and the competent authority is not taking any action. As the complete record and facts were not available this Court on 12.7.2016 asked the State Government to show cause as to why the matter has been kept pending and sanction for prosecution has not been accorded till date, on the same day notice was also issued to respondent No.3. Thereafter, when the matter was came up on 17.10.2016, Shri V. K. Tankha, learned Senior Counsel for respondent No.3 made a serious complaint before us to say that influenced by the order and observation made by us on 12.7.2016 in a hurried manner the State Government has referred the matter for sanction to the competent authority of the Central Government and without complying with the observations and mandate of the Supreme Court in the matter of conducting fresh investigation, in a hurried manner papers are forwarded to the competent authority for sanction and serious complaint was made to us that on 17.10.2016 to say nothing was done and based on whatever investigation was done prior to 3rd February 2011, sanction is being sought for and the sanction would be obtained very soon and respondent No.3 prosecuted without granting him an opportunity and without conducting a fresh investigation as mandated by the Supreme Court in the order passed on 3.2.2011.
5. We heard all concern and perused the documents including the return filed by respondent No.2 represented by Shri K. S. Wadhwa and we found that the return filed by the investigating agency did not indicate as to what was done by the investigating officer for conducting fresh investigation after the orders were passed by the Hon'ble Supreme Court on 3.2.2011 and finding that the order passed by us on 12.7.2016 may cause some prejudice to respondent No.3, we passed an order on 17.10.2016 staying implementation of order passed on 12.7.2016, but at the same time directed Shri K. S. Wadhwa to file additional return indicating as to how and in what manner the investigating agency had conducted fresh investigation after the orders were passed by Hon'ble Supreme Court on 3.2.2011 in Cr.A. No.511/2006 and accordingly, Shri K. S. Wadhwa has filed a detailed additional return along with affidavit of the investigating officer and has brought on record various facts by way of additional affidavit and document Annexure AR/1 to indicate as to how investigation and enquiry progressed after the orders were passed by the Supreme Court on 3.2.2011.
6. In rebuttal to the same, respondent No.3 has filed a detailed additional return running to more than 428 pages and has tried to demonstrate before us that the enquiry and investigation has not been done in accordance to the mandate of the Supreme Court's order and therefore, the entire investigation conducted should be quashed and mandamus issued to conduct fresh investigation as prayed for by the petitioner and as directed by the Hon'ble Supreme Court.
7. During the course of hearing Shri V. K. Tankha, learned Senior Counsel by taking us through the return and by referring to various orders and letters, particularly an order passed by the Central Government, opinion and report given by the Law Department, opinion given by the State of M.P. and opinion of Central Government tried to demonstrate before us that the inquiry into the matter as mandated by the Supreme Court has not been complied with and in support relied upon the following four judgments : Vinay Tyagi Vs. Irshad Ali @ Deepak & Ors. - Cr.A. Nos.2040-2041/2012 ; K. Chandrasekhar Vs. State of Kerala; Ramchandran Vs. R. Udhayakumar & Ors - Cr.A. No.871/2008 & State of Punjab Vs. Central Bureau of Investigation - SLP (Cr.) No.792/2008, to say as to what is the meaning of word "fresh investigation" and tried to demonstrate before us that Investigating Authorities have not conducted the enquiry in accordance to the mandate of Supreme Court. Therefore, he seeks interference.
8. Per contra, the Investigating Authority represented by Shri K. S. Wadhwa has brought on record various documents to rebut the aforesaid contentions and submits that respondent No.3 was noticed by the Investigating Authority and he did not cooperate and have placed on record facts to say that the investigation as directed by the Supreme Court has been completed. In sum and substance, there are serious dispute between the respondent No.3 and respondent No.2 with regard to compliance of the order passed by the Supreme Court on 3.2.2011 and the manner in which the fresh investigation was done. The question before us for consideration is as to whether in a public interest litigation at the instance of a third person, we can go into these area of disputes between respondent No.3 and respondent No.2. We are very clear in our mind that this dispute cannot be resolved at the instance of a third person in this writ petition filed in public interest. If respondent No.3 is aggrieved by the manner in which the investigation is being conducted or has any grievance with regard to non compliance of the order of Supreme Court. It is for the respondent No.3 to approach the Hon'ble Supreme Court or take recourse to such remedy as may be available to him under law, to challenge the investigation and proceedings initiated by the Investigating agency and it would be only at the instance of respondent No.3 that the matter in dispute between respondent No.3 and the investigating agency can be looked into.
9. At the instance of any third person, we are not inclined to go into all these aspects. We may hasten to add that the investigating authority has brought on record material to show that sometimes in the year 2011 the respondent No.3 filed an application before the Supreme Court vide Annexure AR/3 and it was his complaint in the said application, copy of which is available on record, that the investigating authority is not conducting the investigation properly and in violation to the mandate of Supreme Court is proceeding in the matter. We find that the said writ petition was withdrawn by the counsel representing respondent No.3. Taking note of all these circumstances, we are of the considered view that, it is not a fit case where at the instance of third person, we should go into various disputed questions between the investigating authority and the respondent No.3. and grant relief to respondent No.3. Respondent No.3 is free to take recourse to such remedy as may be available to him for redressal of his grievances in the matter.
10. Before parting, we may clarify that we have not gone into the merits of the allegation made by respondent No.3 with regard to manner in which the investigation was conducted, nor have we considered the justification given by the Investigating Authority. As we are not interfering into the matter at the instance of third person, it is now for the respondent No.3 and the Investigating Authority to justify their claim before the appropriate Court or forum in case respondent No.3 agitates the same.
11. In the facts and circumstances, finding no case of indulgence in this petition, we dismiss the writ petition.
(RAJENDRA MENON) (SMT. ANJULI PALO) ACTING CHIEF JUSTICE JUDGE mrs. mishra