Manipur High Court
Thokchom Kaminimohan Singh vs Superintendent Of Police on 28 September, 2022
Author: Sanjay Kumar
Bench: Sanjay Kumar
LAIRENM Digitally
by
signed
AYUM LAIRENMAYUM
INDRAJEET
INDRAJE SINGH
IN THE HIGH COURT OF MANIPUR
Date: 2022.09.28
ET SINGH 15:26:07 +05'30'
AT IMPHAL
[1] Misc.Case(Cril. Petition) No.28 of 2022
Ref: Cril. Petition No.30 of 2022
[1] Thokchom Kaminimohan Singh, aged about 66 years, S/o late Th.Tonjam
Singh, the then EE/Transmission Construction Division No.1, a resident of
Wangkhei Ayangpalli near Leima Keithel, P.O. & P.S. Porompat, Imphal East
District, Manipur.
[2] Monoharmayum Budhachandra Sharma, aged about 65 years, S/o late
M.Brajamani Sharma, the then EE/Sub-Station Construction Division No.II, a
resident of Kwakeithel Moirangpurel Leikai, P.O. & P.S. Singjamei, Imphal
East District, Manipur.
...Applicants/
Respondents No.2 & 3.
-Versus-
[1] Superintendent of Police, Kakching District, Manipur.
...Respondent/Petitioner
[2] N.Sarat Singh, the then Chief Engineer (Power), now re-engaged as
Managing Director, MSPDCL, S/o N.Modhumangol Singh, aged about 64
years, of Thangmeiband Yumnam Leikai, P.O. & P.S. Lamphel, Imphal West
District, Manipur.
...Proforma Respondent
[2] Misc.Case(Cril. Petition) No.31 of 2022
Ref: Cril. Petition No.30 of 2022
N.Sarat Singh, the then Chief Engineer (Power), now re-engaged as
Managing Director, MSPCL, S/o N.Modhumangol Singh, aged about 64 years,
of Thangmeiband Yumnam Leikai, P.O. & P.S. Lamphel, Imphal West District,
Manipur.
.... Applicant/
Respondent No.1.
-Versus-
[1] Superintendent of Police, Kakching District, Manipur.
... Opp. Party.
[2] Thokchom Kaminimohan Singh, aged about 66 years, S/o late Th.Tonjam
Singh, the then EE/Transmission Construction Division No.1, now
re-engaged as General Manager, MSPCL of Wangkhei Ayangpalli near Leima
Keithel, P.O. & P.S. Porompat, Imphal East District, Manipur.
[3] Monoharmayum Budhachandra Sharma, aged about 65 years, S/o late M.
Brajamani Sharma, the then EE/Sub-Station Construction Division No. II,
a resident of Kwakeithel Moirangpurel Leikai, P.O. & P.S. Singjamei, Imphal
East District, Manipur.
...Proforma Opp. Parties/
Respondents No. 2 & 3.
M.C.(Cril.Petn.) No.28 of 2022,
M.C.(Cril.Petn.) No.31 of 2022
{Ref: Cril.Petn.No.30 of 2022} Page 1
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
For the Applicants in :: Mr. H.Ishwarlal, Sr.Advocate, with
MC(Cril.Petn.) No.28/2022 Mr. Syed Murtaza Ahmed, Advocate
For the Applicant in :: Mr. N.Ibotombi Singh, Sr.Advocate,
MC(Cril.Petn.) No.31/2022 with Ms. N. Savitri, Advocate
For the main respondent in the cases :: Mr. Rarry Mangsatabam, Advocate
Date of reserving of the order :: 19.09.2022
Date of delivery of the order :: 28.09.2022
O R D E R (CAV)
[1] Criminal Petition No.30 of 2022 was filed by the Superintendent of Police, Kakching District, Manipur, under Section 439(2) Cr.P.C., seeking cancellation of the anticipatory bail granted by the learned Sessions Judge, Imphal East (Special Judge, Lokayukta, Manipur), to the respondents in the criminal petition, vide order dated 08.06.2022 passed in Cril. Misc. (AB) Case No.5 of 22 (Ref: - FIR No.4(2) 2022 CB-PS under Section 120-B/34 IPC & Sections 7(b)/13 PC Act). [2] While so, respondents No.2 and 3 in Criminal Petition No. 30 of 2022 filed M.C. (Cril.Petn.) No.28 of 2022 and respondent No.1 therein filed M.C.(Cril.Petn.) No.31 of 2022 seeking dismissal of the criminal petition alleging that it was not maintainable as Mr. Rarry Mangsatabam, the conducting counsel, was not a Public Prosecutor and was not competent to file and argue the criminal petition before this Court in the light of Sections 24 and 302 Cr.P.C. [3] Heard Mr. H.Ishwarlal, learned senior counsel, assisted by Mr. Syed Murtaza Ahmed, learned counsel, for the applicants in M.C.(Cril.Petn.) No.28 of 2022; Mr. N.Ibotombi, learned senior counsel, assisted by Ms. N.Savitri, learned M.C.(Cril.Petn.) No.28 of 2022, M.C.(Cril.Petn.) No.31 of 2022 {Ref: Cril.Petn.No.30 of 2022} Page 2 counsel, for the applicant in M.C.(Cril.Petn.) No.31 of 2022; and Mr. Rarry Mangsatabam, learned counsel, appearing for the contesting respondent in the miscellaneous cases, viz., the Superintendent of Police, Kakching District. [4] Nutshelled, the relevant facts unfold thus: The Hon'ble Manipur Lokayukta passed order dated 07.02.2022 in Complaint Case No.2 of 2020, titled 'Shri Thiyam Nirosh Singh vs. Shri N. Sarat Singh, the then Chief Engineer (Power), now re-engaged as Managing Director, Manipur State Power Company Limited and others', holding that a prima facie case existed for investigation of the allegations made against the respondents therein. In exercise of power under Sections 20(3), 28 and 32 of the Manipur Lokayukta Act, 2014 (for brevity, 'the Act of 2014'), the Hon'ble Manipur Lokayukta directed utilization of the services of Shri Shrey Vats, Superintendent of Police, Kakching District, to investigate the case, exercising all the powers conferred under the Act of 2014, by considering the preliminary inquiry report as an Ejahar for the purpose of registration of a case at the Crime Branch Police Station, Imphal. It was further directed that Shri Shrey Vats, the Investigating Officer, would not be under the supervision of his departmental senior officer or the Station where the case was registered and would conduct the investigation in coordination with the Director (Inquiry), Manipur Lokayukta. The investigation was directed to be completed within six months from the date of registration of the case and the matter was adjourned to await the investigation report. [5] Pursuant to the aforestated order, FIR No.4(02) 2022 was registered on the file of the Crime Branch Police Station, Imphal, under Sections 7(b) and 13 of the Prevention of Corruption Act, 1988, and Sections 120-B and 34 IPC. At that stage, Cril. Miscellaneous (AB) Case No.5 of 2022 was filed by Shri N.Sarat Singh M.C.(Cril.Petn.) No.28 of 2022, M.C.(Cril.Petn.) No.31 of 2022 {Ref: Cril.Petn.No.30 of 2022} Page 3 {the applicant in M.C.(Cril.Petn.) No.31 of 2022}, Shri Th.Kaminimohan Singh and Shri M.Budhachandra Sharma {the applicants in M.C. (Cril.Petn.) No.28 of 2022} before the learned Sessions Judge, Imphal East (Special Judge, Lokayukta, Manipur) (for brevity, 'the Special Court'), under Section 438 Cr.P.C., seeking anticipatory/pre-arrest bail in relation to the subject FIR. By order dated 09.02.2022 (signed on 14.02.2022), the Special Court granted interim anticipatory bail to them, subject to conditions. Thereafter, by order dated 08.06.2022, the Special Court made absolute the interim bail, granted under the earlier order dated 09.02.2022, till submission of the charge-sheet.
[6] Seeking cancellation of the bail order dated 08.06.2022, the Superintendent of Police, Kakching District, filed Criminal Petition No.30 of 2022 before this Court under Section 439(2) Cr.P.C. Notice having been ordered, the respondents therein entered appearance and then filed the present miscellaneous cases raising the issue of maintainability of the criminal petition on the ground that Mr. Rarry Mangsatabam, learned counsel, appearing for the Superintendent of Police, Kakching District, had no authority in law to appear on his behalf. Their contention is that Sections 24 and 302 Cr.P.C. bar a private counsel from appearing for the prosecution. Section 24 Cr.P.C. deals with Public Prosecutors. Section 24(1) provides that the Central or State Government shall, after consultation with the High Court, appoint Public Prosecutor/Additional Public Prosecutors for such Court for conducting in such Court any prosecution, appeal or other proceedings on behalf of the Central or State Government, as the case may be. Section 24(8) Cr.P.C. provides that the Central or State Government may appoint, for the purposes of any case or class of cases, a Special Public Prosecutor, being an Advocate who has M.C.(Cril.Petn.) No.28 of 2022, M.C.(Cril.Petn.) No.31 of 2022 {Ref: Cril.Petn.No.30 of 2022} Page 4 been in practice for not less than ten years. Section 302 Cr.P.C. deals with permission to conduct prosecution. Sub-section (1) thereof states that a Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without permission. [7] These being the statutory provisions pressed into service by the applicants, it may be noted that the case on hand originated at the behest of the Hon'ble Manipur Lokayukta and, therefore, the provisions of the Act of 2014 also have great relevance. In this regard, Section 12 in Chapter IV of the Act of 2014 deals with 'Prosecution Wing' and Section 12(1) empowers the Lokayukta to constitute a Prosecution Wing headed by the Director of Prosecution for the purpose of prosecution of public servants, in relation to any complaint, by the Lokayukta. The proviso thereto states that till such time the Prosecution Wing is constituted by the Lokayukta, the State Government shall make available such number of officers and other staff from its Departments, as may be required by the Lokayukta for conducting the prosecution under the Act of 2014. Section 12(2) provides that the Director of Prosecution, upon being directed by the Lokayukta, shall file a case in accordance with the investigation report before the Special Court and take all necessary steps for prosecution of public servants in relation to any offence punishable under the Prevention of Corruption Act, 1988. Section 12(3) states that the case under Section 12(2) shall be deemed to be a report filed on completion of investigation under Section 173 Cr.P.C. Section 14 in Chapter VI of the Act of 2014 details the jurisdiction of the Lokayukta in respect of inquiries. Thereafter, Chapter M.C.(Cril.Petn.) No.28 of 2022, M.C.(Cril.Petn.) No.31 of 2022 {Ref: Cril.Petn.No.30 of 2022} Page 5 VII details the procedures to be followed in respect of a preliminary inquiry and investigation. Section 20(1) in Chapter VII states that the Lokayukta, upon receipt of a complaint, if it decides to proceed further, may order a preliminary inquiry against any public servant by its Inquiry Wing or any agency to ascertain whether there exists a prima facie case for proceeding further or an investigation by any agency as to whether there exists a prima facie case. Section 20(2) speaks of a preliminary inquiry being made in terms of Section 20(1) either by the Inquiry Wing or any other agency and submission of a report to the Lokayukta within sixty days. Section 20(3) states that the Lokayukta shall consider the report received under Section 20(2) and thereafter decide whether there exists a prima facie case and proceed with one or more of the following actions: a) investigation by any agency;
b) initiation of departmental proceedings or any other appropriate action against the concerned public servant by the competent authority; and c) closure of proceedings against the public servant and proceeding against the complainant under Section 47 of the Act of 2014. Section 20(5) states that, in case the Lokayukta decides to proceed to investigate into the complaint, it shall direct any investigation agency to carry out the investigation and complete the same within a period of six months. The proviso thereto empowers the Lokayukta to extend the said period by a further period of six months for reasons to be recorded in writing. Section 20(6) provides that the investigation agency shall submit its report to the Court having jurisdiction and also forward a copy thereof to the Lokayukta. Section 20(7) states that upon consideration of such report, the Lokayukta shall obtain comments of the competent authority and the public servant and either grant sanction to its Prosecution Wing or the investigating agency to file a charge-sheet or direct closure M.C.(Cril.Petn.) No.28 of 2022, M.C.(Cril.Petn.) No.31 of 2022 {Ref: Cril.Petn.No.30 of 2022} Page 6 of report before the Special Court against the public servant or direct the competent authority to initiate departmental proceedings or any other appropriate action against the public servant concerned. Section 25 in Chapter VIII of the Act of 2014 details the supervisory powers of the Lokayukta and states that, notwithstanding anything contained in any other law for the time being in force, the Lokayukta shall have the powers of superintendence and direction over the investigation agency in respect of matters in so far as they relate to investigation by such agency under the Act of 2014. The proviso thereto, however, states that while exercising power of superintendence or giving direction, the Lokayukta shall not exercise power in such a manner so as to require the agency to which the investigation has been given to investigate and dispose of any case in a particular manner. Section 28(1) of the Act of 2014 states that the Lokayukta may, for the purpose of conducting any preliminary inquiry or investigation, utilize the services of any officer or organization or investigation agency of the State Government. Section 28(2) provides that for the purpose of inquiry or investigation, any officer or organization or agency, whose services are utilized, may, subject to the direction and control of the Lokayukta, summon and enforce the attendance of any person and examine him; require the discovery and production of any document; and requisition any public record or copy thereof from any office.
[8] The aforestated statutory scheme obtaining under the Act of 2014 demonstrates that an altogether separate procedure is contemplated thereunder in so far as cases before the Hon'ble Manipur Lokayukta are concerned. It may also be noted that Section 2 in Chapter I in the Act of 2014 sets out definitions and Section 2(e) states that 'investigation' for the purposes of the Act of 2014 would M.C.(Cril.Petn.) No.28 of 2022, M.C.(Cril.Petn.) No.31 of 2022 {Ref: Cril.Petn.No.30 of 2022} Page 7 mean an investigation as defined under Section 2(h) Cr.P.C. In turn, Section 2(h) Cr.P.C. defines investigation inclusively to mean all proceedings under the Code for collection of evidence conducted by a police officer or by any person other than a Magistrate, who is authorized by a Magistrate in that behalf. Further, Section 2(g) Cr.P.C. defines 'inquiry' to mean every inquiry, other than a trial, conducted under the Code by a Magistrate or a Court. It would also be apposite to note that Section 226 Cr.P.C. states that the prosecution shall open its case before the Sessions Court when the accused appears or is brought before the Court, pursuant to commitment of the case under Section 209 Cr.P.C., by describing the charge brought against the accused and stating by what evidence it proposes to prove the guilt of the accused. [9] In the light of Section 12(1) read with Section 25 of the Act of 2014, it is clear that Shri Shrey Vats, Superintendent of Police, Kakching District, who was entrusted with the investigation of the case by the Hon'ble Manipur Lokayukta under order dated 07.02.2022, would report directly to the said body and not to his own superior or the police station where the case was registered. The only fetter placed upon the Lokayukta in relation to superintendence over the investigation is mentioned in the proviso to Section 25 of the Act of 2014, which stipulates that the Lokayukta shall not require the Investigating Agency to investigate and dispose of a case in a particular manner. Therefore, Shri Shrey Vats, Superintendent of Police, Kakching District, is not acting as an emissary of the State while investigating the subject FIR but doing so on behalf of the Hon'ble Manipur Lokayukta, under the statutory scheme of the Act of 2014. It is only after he finishes the investigation leading to a charge-sheet, if any, being filed before the Special Court that the question would arise as to who is competent to prosecute such a case before the M.C.(Cril.Petn.) No.28 of 2022, M.C.(Cril.Petn.) No.31 of 2022 {Ref: Cril.Petn.No.30 of 2022} Page 8 Special Court. At the stage of investigation, the provisions of Sections 24 and 302 Cr.P.C. would not apply, as there is neither an inquiry nor a trial pending before the Special Court. That is obviously the reason why the applicants in these miscellaneous cases themselves filed their anticipatory bail petition against the Superintendent of Police, Kakching District, and not against the State of Manipur. [10] As already noted supra, the Hon'ble Manipur Lokayukta is empowered to exercise the power of superintendence and direction over the investigation agency in all matters relating to the investigation, under Section 25 of the Act of 2014. In exercise of such power, the Hon'ble Manipur Lokayukta passed order dated 15.07.2022, taking note of the anticipatory bail granted by the Special Court, and opining that steps should be taken to seek cancellation thereof. Shri Shrey Vats, Superintendent of Police, Kakching District, was accordingly directed to file a case against the order dated 08.06.2022 passed by the Special Court in Cril. Miscellaneous (AB) Case No.5 of 2022. He was further directed to coordinate with Mr. M. Rarry, learned conducting counsel of Manipur Lokayukta, in that regard. This order was not subjected to challenge and remains intact. It is clearly reflective of exercise of power by the Hon'ble Manipur Lokayukta under Section 25 of the Act of 2014. As the stage has not yet arrived for the Public Prosecutor to enter into the fray, in terms of Section 225 Cr.P.C. which states that in every trial before a Sessions Court, the prosecution shall be conducted by a Public Prosecutor, there is no irregularity or illegality in the present petition, under Section 439(2) Cr.P.C., being filed and being argued by Mr. Rarry Mangsatabam, learned conducting counsel for the Hon'ble Manipur Lokayukta. It may also be noted that Section 439(2) Cr.P.C. is available not only to the prosecution but to any person aggrieved by the grant of M.C.(Cril.Petn.) No.28 of 2022, M.C.(Cril.Petn.) No.31 of 2022 {Ref: Cril.Petn.No.30 of 2022} Page 9 bail and, therefore, the Superintendent of Police, Kakching District, who is not acting on behalf of the State but on behalf of the Hon'ble Manipur Lokayukta, is well within his rights in engaging the conducting counsel for the Manipur Lokayukta for the purpose of this case.
These miscellaneous cases are therefore bereft of merit and are accordingly dismissed.
Registry is directed to list Criminal Petition No.30 of 2022 for further hearing on 13.10.2022.
CHIEF JUSTICE FR/NFR Opendro M.C.(Cril.Petn.) No.28 of 2022, M.C.(Cril.Petn.) No.31 of 2022 {Ref: Cril.Petn.No.30 of 2022} Page 10