Madhya Pradesh High Court
Ghanshyam Tiwari vs The State Of Madhya Pradesh on 27 September, 2019
[1] CRR-1196-2019
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case number and parties CRR-1196-2019
names
Ghanshyam Tiwari
Vs.
State of M.P. and others
Date of Order. 27/09/2019
Bench Constituted Justice Sujoy Paul and Justice B.K.
Shrivastava.
Order delivered by Justice Sujoy Paul
Whether approved for No
reporting
Name of counsels for parties For Applicant: Mrs. Namrata K. Agrawal,
Advocate.
For Respondent No.1: Mr. Abhijeet
Awasthi, Advocate.
None for the respondent No.2 despite
service.
Law laid down
Significant paragraph numbers
ORDER
27/09/2019 As per: Sujoy Paul, J.:
This criminal revision filed under Section 397/401 of Code of Criminal Procedure, 1973 (Cr.P.C.) takes exception to the order dated 19.02.2019 passed in Special Case No.02/2018 by the learned Sessions Judge, Harda (M.P.).
2. The admitted facts between the parties are that a written complaint was preferred by one Savairam (Respondent No.2) on 21.03.2017 to Superintendent of Police, Special Police Establishment, Office of Lokayukt, [2] CRR-1196-2019 Bhopal alleging that the applicant along with co-accused Dharmendra Shankla - Lineman were demanding illegal gratification for installing electricity connection in his agricultural field.
3. The complaint was entertained by the Police and a digital voice recorder was given to the complainant for recording the alleged conversation of demand of bribe. On 24.03.2017, the respondent No.2 appeared before the Office of Lokayukt Organization along with second complaint and recorded conversation. On the basis of aforesaid material, an FIR was registered against the accused persons under Section 7 of the Prevention of Corruption Act, 1988 (PC Act).
4. On 24.03.2017, a trap was organized. The complainant went inside the office of the applicant and came out after some time. The complainant thereafter contacted the co-accused - Dharmendra. Dharmendra was caught red handed while accepting bribe of Rs.11,000/-. The matter was re- investigated and charge-sheet was filed against Dharmendra before the Court below.
5. Indisputably, the Lokayukt Organization did not file any challan against the applicant nor any sanction was obtained to proceed against him.
6. In due course, the Court below framed charges against the accused - Dharmendra and proceeded with trial. Subsequently, an application under Section 319 of Cr.P.C. (Annexure-A/3) was filed by the complainant seeking impleadment of the present applicant alleging that illegal gratification was demanded by him.
7. After hearing the parties, the Court below by order dated 19.02.2019 allowed the said application and present applicant was made co-accused for [3] CRR-1196-2019 allegedly committing offences under Section 7 and Section 13(1)(d) read with Section 13(2) of PC Act. The Court took cognizance and directed the prosecution to obtain sanction from the concerned department.
8. Aggrieved, the applicant assailed it by contending : (i) PC Act is a Special Act and, therefore, it will prevail over the general provisions of Cr.P.C. In view of the judgment of Supreme Court in 2005 (12) SCC 709 (Dilawar Singh Vs. Parvinder Singh), the Court below could not have proceeded against him in exercise of power under Section 319 of Cr.P.C in absence of any sanction being granted by the competent authority for prosecuting him; (ii) the word 'cognizance' means application of mind and such cognizance, in a matter of this nature, could not have been taken unless requirement of Section 19 of PC Act are satisfied. In support of this submission, Mrs. Namrata Agrawal, learned counsel for the applicant placed reliance on 2012 (2) SCC 731 (Vasanti Dubey Vs. State of Madhya Pradesh), 1998 (6) SCC 551 (State through CBI Vs. Raj Kumar Jain) and a Division Bench judgment of this Court in 2011 SCC OnLine MP 1871 (Bain Singh Tongar Vs. State of Madhya Pradesh).
9. Sounding a contra note, Shri Abhijeet Awasthi, learned counsel for the respondent No.1 supported the impugned order except the last para of the order dated 19.02.2019 whereby, the Court below had taken cognizance in the matter. He submitted that in the light of the judgment of Dilawar Singh (supra), the cognizance could not have been taken by the Court below unless there exists a sanction to proceed against the applicant. However, there is no impediment in otherwise considering an application under Section 319 of Cr.P.C. He submits that in the case of Dilawar Singh (supra), the Apex [4] CRR-1196-2019 Court has not considered Section 22 of PC Act and, therefore, in view of the judgment of Supreme Court reported in 1991 (4) SCC 139 (State of U.P. and another Vs. Synthetics and Chemicals Ltd. and another), the said judgment may be treated as sub silentio. Shri Awasthi placed reliance on 2014 (3) SCC 92 (Hardeep Singh Vs. State of Punjab and others) to emphasize the scope of Section 319 of Cr.P.C. He further submitted that if argument of the applicant that in absence of grant of sanction, the application under Section 319 of Cr.P.C. cannot be entertained at all is accepted, it will mean that Court has become subservient to the Investigating Agency. This cannot be the intention of the legislature and the dicta of the judgment of Dilawar Singh (supra).
10. Shri Abhijeet Awasthi by placing reliance on 2013 (6) SCC 384 (Anju Chaudhary Vs. State of U.P. and another) argued that principles of natural justice are not required to be followed while deciding an application under Section 319 of Cr.P.C. or before grant of sanction under Section 19 of the PC Act.
11. Nobody appeared on behalf of the respondent No.2 despite service.
12. No other point is pressed by learned counsel for the parties.
13. We have heard learned counsel for the parties at length and perused the record.
14. Before dealing with the rival contentions, it is apposite to refer para 8 of the judgment of Dilawar Singh (supra), which reads as under:
"8. The contention raised by learned counsel for the respondent that a Court takes cognizance of an offence and not of an offender holds good when a Magistrate takes cognizance of an offence under Section 190 Cr.P.C. The observations made by this Court in Raghubans Dubey Vs. State of Bihar were also made in that context. The Prevention of Corruption Act is a special statute and [5] CRR-1196-2019 as the preamble shows, this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. (See Godde Venkateshwar Rao Vs. Govt. of Andhra Pradesh) AIR 1966 SC 828, State of Bihar Vs. Yogendra Singh, AIR 1982 SC 882 and Maharashtra State Board of Secondary Education and Higher Secondary Education Vs. Paritosh Bhupeshkumar Seth, AIR 1984 SC 1543). Therefore, the provisions of Section 19 of the Act will have an overriding effect over the general provisions contained in Section 190 or 319 Cr.P.C. A Special Judge while trying an offence under the Prevention of Corruption Act, 1988, cannot summon another person and proceed against him in the purported exercise of power under Section 319 Cr.P.C. if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person."
[Emphasis Supplied]
15. It is noteworthy that learned counsel for the parties fairly admitted that the impugned order dated 19.02.2019 to the extent cognizance is taken while entertaining an application under Section 319 of Cr.P.C. runs contrary to the judgment of Supreme Court in Dilwar Singh (supra) and cannot be permitted to stand. As canvassed, the only points need consideration are :-
(i) Whether a Special Judge can proceed against another person in purported exercise of power under Section 319 of Cr.P.C.
when there exists no sanction by the competent authority to proceed against him;
(ii) Whether the judgment of Dilawar Singh (supra) can be treated as sub silentio because Section 22 of PC Act is not taken into account by the Apex Court.
16. Shri Abhijeet Awasthi, learned counsel for the respondent No.1 argued that if the Court below is even deprived to consider an application under Section 319 of Cr.P.C. for want of sanction, the Court will become subservient to the Investigating Agency. We have no hesitation to record that this argument has impressed us in the first blush but lost much of its force [6] CRR-1196-2019 when it was tested on the anvil of 2016 (8) SCC 722 (Surinderjit Singh Mand and another Vs. State of Punjab and another). Interestingly, the same argument came up for consideration before the Supreme Court. It is condign to quote the relevant para which is as under:
"31. According to learned counsel representing respondent 2, the position concluded above would give the impression that the determination rendered by a Court under Section 319 of the Code is subservient to the decision of the competent authority under Section 197. No, not at all. The grant of sanction under Section 197, can be assailed by the accused by taking recourse to judicial review. Likewise, the order declining sanction, can similarly be assailed by the complainant or the prosecution."
[Emphasis Supplied]
17. In the light of the judgment of Surinderjit Singh Mand (supra), we are unable to persuade ourselves with the line of argument of Shri Abhijeet Awasthi. It is worth recording that it will be open to the respondent No.2 to seek grant of sanction under Section 19 against the present applicant in appropriate proceeding and then file an application under Section 319 of Cr.P.C. before the Court below.
18. So far argument that judgment of Dilawar Singh (supra) must be read as a sub silentio is concerned, in our view, the argument does not have any force. Section 22 of PC Act makes it clear that certain provisions of Cr.P.C. were made applicable with certain modifications. Even if Section 22 of PC Act is not considered in Dilawar Singh (supra), it will not improve the case of respondent No.1.
19. We find no merit in the argument that judgment of Dilawar Singh (supra) is not binding. It is apt to note that the judgment of Dilawar Singh (supra) is consistently followed by the Apex Court in catena of judgments.
20. For the reasons stated hereinabove, the impugned order dated [7] CRR-1196-2019 10.02.2019 is set aside. The petition is allowed with the observations made hereinabove.
(Sujoy Paul) (B.K. Shrivastava
Judge Judge
Biswal
SHIBA NARAYAN BISWAL
2019.09.27 15:54:26 +05'30'