Madhya Pradesh High Court
Raj Kumar Singh Tiwari vs The State Of Madhya Pradesh on 15 December, 2022
Author: Sheel Nagu
Bench: Sheel Nagu, Virender Singh
1 WP-9774-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VIRENDER SINGH
WRIT PETITION No. 9774 of 2016
BETWEEN:-
RAJ KUMAR SINGH TIWARI S/O SHRI HANS RAJ
SINGH TIWARI, AGED ABOUT 50 YEARS, PRESIDENT
OF RAJ BHANU SINGH SMARK COLLEGE,
MANIKWAR, REWA DISTRICT REWA (M.P.)
.....PETITIONER
(BY SHRI SHIVAM MISHRA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE PRINCIPAL SECRETARY, HIGHER
EDUCATION DEPARTMENT, VALLABH BHAWAN
BHOPAL (M.P.)
2. THE COMMISSIONER, HIGHER EDUCATION,
BHOPAL (M.P.)
3. THE COLLECTOR, REWA DISTRICT REWA
(M.P.)
4. THE ADDITIONAL DIRECTOR, HIGHER
EDUCATION, REWA DIVISION, REWA (M.P.)
5. DR. MUNINDRA PRASAD PATHAK, IN-CHARGE
PRINCIPAL, RAJ BHANU SINGH SMARAK
2 WP-9774-2016
COLLEGE, MANIKWAR, REWA DISTRICT REWA
(M.P.)
.....RESPONDENTS
(RESPONDENTS NO.1 TO 4/STATE BY SHRI PIYUSH DHARMADHIKARI -
GOVERNMENT ADVOCATE AND RESPONDENT NO.5 BY SHRI NITYA
NAND MISHRA - ADVOCATE )
-----------------------------------------------------------------------------------------
Reserved on : 03.09.2022
Pronounced on : 15.12.2022
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This petition having been heard and reserved for orders, coming on
for pronouncement this day, Hon'ble Shri Justice Sheel Nagu pronounced
the following:
ORDER
By this petition under Article 226 of the Constitution of India, the petitioner claiming himself to be the President of Raj Bhanu Singh Smarak College, Manikwar, Rewa (M.P.) prays for the following reliefs :
"I) A writ order or direction in the nature of mandamus thereby directing the respondent No.1 to grant necessary sanction for prosecution of respondent No.5 under the provisions of PC Act and IPC in the interest of justice.
3 WP-9774-2016 II) Any other appropriate writ, order or direction which the Hon'ble ourt may deem just and proper in the nature and circumstances of the case."
2. The grievance of petitioner is that despite the petitioner having sought grant of sanction for prosecution from the competent authority i.e. respondent no.1 for initiating criminal prosecution against respondent No.5, no heed has been paid despite respondent No.5 allegedly being involved in financial irregularities. As such, the petitioner has sought issuance of a direction by way of a writ of mandamus to respondent No.1/the sanctioning authority to grant sanction to prosecute respondent no.5 for alleged offenses punishable under the relevant provisions of IPC and the Prevention of Corruption Act.
3. In a recently passed final order, this Court on 09.12.2022 in Criminal Revision No.1629 of 2022 (Shri Baini Prasad Chansoriya Vs. The State of M.P. and others) has laid down certain guiding principles to be followed by the complainant who intends filing an application u/S.156(3) of Cr.P.C. and also to be followed by the competent court of criminal jurisdiction while dealing with such an application. The relevant extract of the said judgment is reproduced below :
"9. The decision in Anil Kumar (supra) does not lay down the law in respect of Section 17-A of PC Act. Pertinently, the pre- amended PC Act extended protection of sanction to public servants only once i. e. at the stage of taking cognizance of the offence by trial Court but not at pre-cognizance stage. However, the protection of sanction at the pre-cognizance stage was made available by means of purposive interpretation by the judicial verdict in Anil Kumar (supra). Insertion of
4 WP-9774-2016 Section 17-A in PC Act w.e.f. 26.07.2018, protection at the pre- cognizance stage became statutorily available. Therefore, to ascertain the extent and sweep of the protection and prohibition prescribed at pre-cognizance stage by Section 17- A, the words and phrases employed therein will alone have to be looked into.
9.1 On coming into effect of Section 17-A from 26.07.2018, the statutory prohibition became operational but only against the police to conduct any enquiry/inquiry/investigation into any offence of the nature contemplated by Sec. 17-A, unless approval for doing so is obtained from authority competent to remove the accused.
9.2 Thus, the textual interpretation of Section 17A reveals in clear terms that the statutory bar to conduct enquiry/inquiry/investigation, without approval, is against Police Officer but not against the Court.
9.3 It is thus clear that neither enquiry (informal enquiry as contemplated in para 120 (ii), (v), (vi) & (vii) of Apex Court's decision in Lalita Kumari Vs. Govt. of U.P. & Ors (supra) nor inquiry (formal inquiry as defined in Sec.2(g) of Cr.PC) nor investigation can be conducted by Police Officer in the absence of grant of approval by the competent authority. Therefore, on receipt of complaint, containing allegation of commission of offence under PC Act arising from allegation of "recommendation made" or "decision taken" by a public servant, a Police Officer is statutorily prohibited from conducting enquiry/inquiry/investigation unless approval is obtained from competent authority u/S. 17-A. 9.4 Importantly the statutory prohibition u/S 17-A against the Police Officer does not restrict the Special Court from entering into the realm of enquiry/inquiry which may be necessary prior to registration of offence even in the absence of approval from competent authority u/S 17-A. 5 WP-9774-2016 9.5 However, the extent of enquiry/inquiry which a Special Court can conduct in the absence of approval is merely to achieve the object of ascertaining whether contents of Section 156(3) application prima facie reveal commission of offence of the nature contemplated u/S 17-A and punishable under PC Act or not.
9.6 If the Special Court finds that 156(3) application reveals commission of offence of nature contemplated by Section 17-A of PC Act, then before the next step of directing police to submit report or to register offence or to conduct enquiry can be given, approval as sine qua non ought to be obtained from competent authority u/S 17-A. 9.7 Responsibility of obtaining approval from the competent authority u/S. 17-A lies on the shoulders of the complainant who prefers the application 156(3) Cr.P.C.
9.8 However, in view of 2nd proviso to Section 17-A, if the approval is not granted by the competent authority within three months extendable by one month, the complainant is not left remedyless. The complainant can very well approach the superior court for seeking appropriate writ/direction.
10. The aforesaid steps taken by Special Court on an application u/S 156(3) Cr.PC alleging offences under PC Act arising from acts of recommednation made or decision taken will not run contrary to the decision of Apex Court in Anil Kumar (supra). Reasons for this are not far to see.
10.1 The first being that the verdict in Anil Kumar (supra) was rendered during pre-amendment era when Section 17-A was not part of the Statute Book and thus is not a precedent qua Sec.17-A PC Act.
10.2 Secondly, the legislature w.e.f. 26.07.2018 created a new provision in shape of Section 17-A PC Act extending additional protective umbrella against false and malicious prosecution qua offences punishable under PC Act arising from "recommendation made" or "decision taken" by public 6 WP-9774-2016 servant in discharge of official functions/duties. In the pre- amendment era, Section 19 of PC Act was the only provision extending protective umbrella to public servants which was available in respect of all kinds of offences under PC Act, but only at the stage when Court takes cognizance after investigation is complete.
10.3 Secondly, the statutory prohibition u/S 17-A binds the hands of Police from conducting enquiry/inquiry/investigation sans approval. Such prohibition was not statutorily prescribed prior to 26.07.2018 Therefore, the true import of Sec.17-A can be derived from textual and contextual interpretation of this provision alone without the aid of Anil Kumar (supra).
10.4 Thirdly, Sec. 17-A does not bar the Special Court from conducting enquiry or inquiry (as defined in Sec. 2(g) Cr.P.C.). Argument may be raised that though Special Court is not statutorily barred from conducting enquiry/inquiry but occasions may arise where the Special Court for aid and assistance may direct Police to conduct enquiry/inquiry leading to an impasse in the face of statutory bar u/S.17-A prohibiting Police Officer from proceeding ahead. True it is that Police Officer alone has been restrained from conducting enquiry/inquiry/investigation but the said argument can be put to rest by the well established principle of law that what cannot be done directly in law also cannot be done indirectly. [See: Gian Singh Vs. State of Punjab and another, (2010) 15 SCC 118 Para 7). Therefore, the enquiry/inquiry can very well be conducted u/S. 17-A by Special Court but without involving the police. The Special Court is thus not prevented from conducting enquiry/inquiry at its own level while dealing with an application u/S. 156(3) Cr.P.C. but without assistance of the police. In this manner, the sweep, extent and object of Sec. 17- A remains unoffended.
10.5 Thus, the verdict of Anil Kumar (supra) will not come in the way of trial Court while deciding an application u/S 156(3) Cr.P.C. for the reason of Anil Kumar (supra) not being the law qua Sec. 17A and also that the legal bar contained therein 7 WP-9774-2016 restrains the Police but not the Court. Moreso, the decision in Anil Kumar (supra) has been doubted by Apex Court in Manju Surana (supra) inter alia for the reason of Anil Kumar (supra) failing to consider three - Judge Bench verdict in R.R. Chari Vs. State of U.P., (AIR 1951 SC 207) wherein the Apex Court profitably quoted its earlier verdict in Subramanian Swamy Vs. Monmohan Singh and another, 2012 (3) SCC 64. Pertinently Subramanian Swamy (supra) at para 35, extracts the Three Judge Bench decision in R.R. Chari (supra) which is reproduced as follows:-
35. In R. R. Chari v. State of U.P., the three Judge Bench approved the following observations made by the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs Vs. Abni Kumar Banerjee (supra):
"What is taking cognizance has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, - proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be
8 WP-9774-2016 said to have taken cognizance of the offence."
[Emphasis Supplied] 10.6 Thus, non-consideration of R.R. Chari (Three - Judge Bench decision) in Anil Kumar (Two- Judge Bench decision) impelled the Apex Court in Manju Surana to doubt the precendential value Anil Kumar before referring the case to larger Bench.
10.7 Reverting to the factual matrix attending the present case, it is seen that learned Special Judge rejected the application u/S. 156(3) without conducting any enquiry or inquiry (as defined u/S2(g) Cr.P.C.) for at-least coming to a tentative view that the application u/S. 156(3) contains allegations which reveal commission of cognizable offence punishable under PC Act or not arising from decision taken or recommendation made. Thus reliance placed by learned Special Judge on the decision of Anil Kumar (supra), for the reasons mentioned (supra) is misplaced."
4. Since the petitioner as a complainant has remedy of invoking Section 156(3)/200 of Cr.P.C. in terms of guiding principles laid down in Shri Baini Prasad Chansoriya (supra), this Court declines to interfere on merits herein and instead relegates the petitioner to avail the said remedy which, if availed within a period of 60 (sixty) days from today, shall be considered and decided by the court of competent jurisdiction on its own merits following the guidelines laid down in the case of Shri Baini Prasad Chansoriya (supra).
5. This writ petition thus stands disposed of in the above terms.
(SHEEL NAGU) (VIRENDER SINGH)
JUDGE JUDGE
DV
Digitally signed by DINESH VERMA
Date: 2022.12.16 10:51:38 +05'30'