Madhya Pradesh High Court
Jaynarayan Para vs The State Of Madhya Pradesh on 16 July, 2014
1 Mcrc.4076.2014
Jaynaryan Para Vs. State of Madhya Pradesh and another
16.07.2014
Shri Sanjay Gupta, Advocate, for the petitioner.
Shri Vivek Khedkar, Public Prosecutor, for respondent
No.1/State.
Shri V.D. Sharma, Advocate, for respondent No.2. This petition under Section 482 of the Code of Criminal Procedure has been preferred being aggrieved by the order dated 19.11.2012 passed by the I Additional Sessions Judge & Special Judge (Prevention of Corruption Act), Morena, in Special Case No.2/2012 [Suresh Yadav Vs Rajesh Verma and others] whereby the complaint filed by respondent No.2 against the petitioner for the offence punishable under Sections 420, 467, 468, 120B of IPC and under Sections 5, 8 and 9 of the Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, 1982 was forwarded to the Superintendent of Police, Special Police Establishment, Lokayukt, Gwalior, for enquiry and thereafter for filing enquiry report.
In brief, the facts of the case are that present petitioner Jaynarayan Para was the Chief Municipal Officer of Nagar Panchayat, Joura, at the relevant point of time. At Present, he is working as Chief Municipal Officer at Sabalgarh, District Morena and accordingly he is a public servant. One complaint has been filed by respondent No.2, namely, Suresh Yadav against the present petitioner Jaynarayan Para and other co-accused persons for the offence punishable under Sections 420, 467, 468, 120B of 2 Mcrc.4076.2014 Jaynaryan Para Vs. State of Madhya Pradesh and another IPC and under Sections 5, 8 and 9 of the Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, 1982. Thereafter, this complaint has been sent to Superintendent of Police, Special Police Establishment, Lokayukt, for investigation under Section 156(3) of Cr.P.C. Case is registered by the Police, Lokayukt, as Crime No.282/2013 for the offence punishable under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 read with Section 120B of IPC.
It is submitted by Shri Sanjay Gupta, learned counsel appearing on behalf of the petitioner, that the sanction has neither been obtained under Section 19(1) of the Prevention of Corruption Act nor under Section 197 of Cr.P.C. before filing the private complaint. Therefore, the order passed by the learned Magistrate under Section 156(3) of Cr.P.C. and on that basis registration of Crime as 282/2013 by Police Lokayukt is without jurisdiction and liable to be set aside. In support of his contention, he placed reliance on Anil Kumar Vs. M.K. Aiyappa and others (2013) 10 SCC 705.
Per contra, in reply, it is submitted by the Shri Vivek Khedkar, learned Public Prosecutor appearing on behalf of respondent No.1/State as well as Shri V.D. Sharma, learned counsel for respondent No.2 that though sanction has not been obtained under the provisions of Prevention of Corruption Act or the Code of Criminal Procedure but because forwarding of a complaint for investigation under Section 156(3) Cr.P.C. is not amounting to cognizance, 3 Mcrc.4076.2014 Jaynaryan Para Vs. State of Madhya Pradesh and another therefore, it cannot be said that the impugned order comes under the purview of cognizance. In fact, the impugned order is passed at pre-cognizance stage.
Having regard to the arguments advanced by the learned counsel for the parties, record have been perused.
Undoubtedly, for the offence punishable under the provisions of Prevention of Corruption Act, no Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with the previous sanction as provided under Section 19(1) of the Act. Similarly, no Court shall take cognizance of offence (here punishable under Indian Penal Code) alleged to have been committed by a public servant while acting or purporting to act in discharge of his official duty except with the previous sanction as provided under Section 197 of the Code.
In the case in hand, it is an admitted fact that both the sanctions have not been taken prior to filing the complaint, therefore, in view of the principle laid down by the Apex Court in the case of Anil Kumar Vs. M.K. Aiyappa and others (2013) 10 SCC 705, cognizance cannot be taken by the Court. In the case of State of U.P. Vs. Paras Nath Singh (2009) 6 SCC 372, the Apex Court has laid down the law that bar on the exercise of power of the Court to take cognizance of any offence is absolute and complete. The very cognizance is barred that is the complaint cannot be taken notice of. Cognizance means 'jurisdiction' or 'the exercise 4 Mcrc.4076.2014 Jaynaryan Para Vs. State of Madhya Pradesh and another of jurisdiction' or 'power to try and determine the cause'. In common parlance it means taking notice of. A Court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.
Therefore, we are of the considered view that as has been laid down by the Hon'ble Supreme Court in Anil Kumar (Supra), the impugned order passed by the learned Magistrate under Section 156(3) of Cr.P.C. and in pursuance thereof registration of Crime by the Special Police Establishment, Lokayukt is illegal and liable to be set aside.
Accordingly, petition is allowed. Impugned order dated 19.11.2012 passed by the I Additional Sessions Judge & Special Judge (Prevention of Corruption Act), Morena, in Special Case No.2/2012 and in view of that the Crime 282/2013 registered by Special Police Establishment, Lokayukt are hereby quashed only for accused/petitioner Jainarayan Para, who was accused No.2 in original complaint.
(S.K. Gangele) (B.D. Rathi)
Judge Judge
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