Madhya Pradesh High Court
Ramkumar Vishwakarma vs The State Of Madhya Pradesh on 1 August, 2019
Equivalent citations: AIRONLINE 2019 MP 873
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. MCRC No.36179/2018
Parties Name Ramkumar Vishwakarma
vs.
State of MP & Others
Date of Order 01 /08/2019
Bench Constituted Justice Sujoy Paul &
Justice B.K. Shrivastava
Order passed by Justice B.K. Shrivastava
Whether approved for
reporting
Name of counsel for parties For Petitioner : Shri S.P. Khare,
Advocate.
For Respondents: Shri Abhijeet
Awasthi, Advocate.
Law laid down -
Significant paragraph -
numbers
(ORDER)
01.08.2019
As per: B.K. Shrivastava, J.
This petition has been filed under Section 482 of the Cr.P.C. on 05.09.2018 for quashment of the entire criminal proceedings initiated against the petitioner in S.T. No. 64/2018 pending before the Court of Shri D.K. Mittal, First ASJ, Tikamgarh arising out of Crime No. 07/2018 for the offences punishable under Sections 419, 420, 467, 468 and 471 of IPC.
2. As per the prosecution case, the petitioner has personated the documents and received illegal amount of Rs. 5 Lakhs from the complainant/respondent No. 2. The respondent No. 2 filed a complaint
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before the Lokayukt which was registered as Crime No. 07/2018 against the petitioner and two officers of Lokayukt, Sagar, under Sections 419, 120-B of IPC and Sections 7, 8, 10 of Prevention of Corruption Act. After investigation, it is found that the officers of Lokayukt are not involved in the crime, only the accused/petitioner alone committed the crime by personating himself as Lokayukt Officer and obtained the illegal money from the complainant by cheating him. Therefore, the investigation agency filed the challan No. 35/2018 only against the petitioner under Sections 419, 420, 467, 468 and 471 of IPC before the CJM, Tikamgarh on 02.04.2018 who registered the Criminal Case No. 450/2018 against the petitioner. CJM committed the case to the Court of Sessions First ASJ, Tikamgarh registered ST No. 64/2018 and framed the charges under Sections 419, 420, 467, 468 and 471 of IPC against the petitioner on 02.07.2018.
3. The petitioner has challenged the investigation conducted by the Special Police Establishment Lokayukt, Bhopal. As per the petitioner he is not a public servant, therefore, as per Section 7 of the Madhya Pradesh Lokayukt Adhiniyam, police have no powers to arrest and investigate the aforesaid matter. No any charge related to Prevention of Corruption Act is against the petitioner, therefore, the Lokayukt police has no power to investigate the matter. Lokayukt police, Bhopal was not empowered to register offence against the petitioner because he was not a public servant. All proceedings and investigation against the petitioner is without jurisdiction, therefore, whole proceedings are null and void and on the basis of such investigation, the petitioner could not be arrested by the Lokayukt police. Therefore, it is prayed to quash the entire criminal proceedings of the ST No. 64/2018 pending before the First ASJ, Tikamgarh.
4. On the other side, counsel for the respondent has strongly opposed the application. It is submitted by the respondent counsel that initially the
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crime was registered against the petitioner and two other persons. Remaining two persons were the employees of the Lokayukt and the complaint made by the complainant was prima facie against the aforesaid two persons and the present petitioner related to the offences under Prevention of Corruption Act and IPC. The Special Police Establishment was competent to investigate the matter and the challan has been filed before the competent Court (i.e. CJM Court) who is empowered to take the cognizance of the offence. Therefore, the Section 7 of Lokayukt Act is not applicable. The petition is misconceived, hence, liable to be dismissed.
5. The petitioner quoted the Section 7 of the Lokayukt and Uplokayukt Act, 1981 which reads as under : -
"7. Matters which may be enquired into by Lokayukt or Up-Lokayukt - Subject to the provisions of this Act, on receiving complaint or other information, -
(i) the Lokayukt may proceed to enquire into an allegation made against a public servant in relation to whom the Chief Minister is the competent authority;
(ii). The Up-Lokayukt may proceed to enquire into an allegation made against any public servant other than that referred to in clause (i):
Provided that the Lokayukt may enquire into an allegation made against any public servant referred to in clause (ii)].2
[Explanation - For the purposes of this section the expressions "may proceed to enquire" and "may enquire"
include investigation by police agency put at the disposal of Lokayukt and Up-Lokayukt in pursuance of sub-section (3) of section 13."
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6. The petitioner also placed reliance upon Govardhan Das Vs. State of MP (2002) MPLJ 154 and Vikas and another Vs. State of MP (2002) 3 MPLJ 417.
7. On the other side, learned counsel for the respondent placed reliance upon Full Bench judgment of this Court passed in Arvind Jain Vs. State of MP 2018 Cri.L. J. 3059.
8. As per powers given by Section 3 of the MP Special Police Establishment Act, 1947, the State Government is empowered to notify, specify the offences or classes for offences which are to be investigated by MP Special Police Establishment. The investigation of the offences under the Prevention of Corruption Act, 1988 is governed by Section 17 of the Act which provides as under:-
17. Persons authorized to investigate .-
Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), no police officer below the rank.-
(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;
(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure,1973 (2 of 1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this Act without the order of a Metropolitan Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant:
Provided that if a police officer not below the rank of an Inspector of police is authorised by the State Government in this behalf by general or special order,he may also investigate any such offence without the order of a Metropolitan Magistrate or a Magistrate of the first
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class, as the case may be, or make arrest therefor without a warrant.
Provided further that an offence referred to in clause
(e) of sub-section (1) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police."
9. By notification No. F-15-2-(I)-89-XLIX-10 dated 28.11.1989 [published in M-P Rajpatra (Asadharan) dated 29.11.1989 page No. 3852], the Madhya Pradesh Government in exercise of the powers conferred by Section 3 of the MP Special Police Establishment Act, 1947, specify the following to be the offences or classes which are to be investigated by the MP Special Police Establishment, namely:-
"(a) Offences punishable under the Prevention of Corruption Act, 1989,(No. 49 of 1988)
(b) offences under Section 409 and 420 and Chapter XVIII of the Indian Penal Code, 1860 (XLV of 1860) when they are committed, attempted or abetted by public servants or the employees of a local authority or a statutory corporation, when such offences adversely affect the interests of the State Government or the local authority or the statutory corporation, as the case may be; and
(c) Conspiracies in respect of offences mentioned in intem
(a) above.
2.(1) The General Administration Department Notification No.113-89-I (VI)-59, dated the 1st November, 1959 is hereby repealed."
10. By notification dated 14.09.2000, in exercise of the powers conferred by Section 3 of the Act 1947 and in supersession of all the previous notifications, State Government has specified the following offences to be the offences of class of offences which are to be investigated by the MP Special Police Establishment :-
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"(a) Offences punishable under the Prevention of Corruption Act, 1988 (No.49 of 1988)'
(b) Offences under Section 409 and 420 and Chapter XVIII of the Indian Penal Code, 1860 (No.XLV of 1860) when they are committed, attempted or abetted by Public Servants or employees of a local authority or a statutory corporation, when such offences adversely affect the interests of the State Government or the local authority or the statutory corporation, as the case may be;
(c) Conspiracies in respect of offences mentioned in item(a) and (b) above; and
(d) Conspiracies in respect of offences mentioned in item(a) and (b) shall be charged with simultaneously in one trial under the provisions of Criminal Procedure Code, 1973 (No.2 of 1974)"
11. By notification dated 14.12.2001, the State Government also substituted clause (d) in the previous notification dated 03.05.2001 which is as under :-
"(d) During the investigating an offence, the investigating officer may also investigate an offence other than but arising out of, an offence specified in clause (a), (b) and (c) for which the accused may be charged under the Code of Criminal Procedure, 1973 (No. 2 of 1974) in the same trial."
12. In Dev Virat Mishra Vs. State of MP 2011(2) MPST 474, the Division Bench of this Court said that Special Police Establishment can be utilized by Lokayukt for the purpose of conducting enquiry under the Act.
13. In the case of Full Bench of MP High Court Arvind Jain Vs. State of MP 2018 Cri.L. J. 3059, the question was referred whether in view of the Section 3 of MP Special Police Establishment Act, 1947, the police has jurisdiction to investigate and conduct trial for the offence
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under the PC Act, 1988 ? In that case, challenge was made to the chargesheet on the ground that the investigation was carried out by the local police in respect of the offences under the PC Act and therefore, the investigation as well as charges are illegal and contrary to the provisions of the PC Act. The Full Bench after taking into consideration Section 3 of the Special Police Establishment Act, 1947, the provisions of Section 17 of the PC Act and also the Section 156 of CrPC answered the question referred. The Full Bench held that the local police is also competent to investigate the offence under PC Act. In para-15 the Full Bench said as under:-
"15. In view of the consideration of Section 3 of M.P. Special Police Establishment Act, 1947 read with the provisions of Section 17 of the Prevention of Corruption Act and also taking into consideration the provisions of Section 156 of the Code of Criminal Procedure, there is no even a slightest indication of any of the provisions of the Act that it was meant to deal with the offence of bribery and corruption by the State Government employees only and to exclusion of the offences committed by the Central Government employees. No such exclusion is found in the Act either expressly or by implication. The contention that the Delhi Special Police Establishment Act, 1946 confers exclusive jurisdiction on the Special Police force created under the Act to investigate the offences of bribery and corruption committed by the Central Government Employees, is wholly unfounded and misplaced. While Central Act does provide for an agency for investigation of such offences committed by the Central Government employees, there is however, no provision in the Act to exclude jurisdiction of the Police Officer of the various States to investigate the said offences when committed by such employees in their State. The scope of Central Act of 1946 is rather limited inasmuch as it provides for the investigation of such offences when committed by the Central Government employees only. The Special Police Force under this Central Act cannot investigate the offence committed by the State Government employees."
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14. In the aforesaid case, the Full Bench also referred the A.C. Sharma Vs. Delhi Administration AIR 1973 SC 913 in which it was held that :-
"16. The P.C.Act of 1988 is a social legislation intended to curb illegal activities of public servants. As observed in Ramsingh, 2000(5) SCC 88 : (2000 Cri LJ 1401) (SC), "The Act is designed to be liberally construed so as to advance its object, Procedural delays and technicalties of law should not be permitted to defeat the object sought to be achieved by the Act. The over all public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and deciding cases under it." Our view of the matter is also consistent with the object of the P.C. Act."
15. The petitioner cited Govardhan Das Vs. State of MP (2002) MPLJ 154 . This case is not related to the competence of police or the Lokayukt in reference to the investigation under IPC or PC Act. The petitioner argued that because the challan has not been filed against the public servant, therefore, charge could have not framed against the accused alone. Aforesaid cited case cannot help the petitioner because in that case, one accused was Mayor of Nagar Nigam and some other accused persons were Corporators of Nagar Nigam and they all were were also members of the committee appointed by the Corporation under Section 403(3) of MP Municipal Corporation Act, 1956. Some other accused were public persons. It was alleged that the accused persons passed the order for the benefit of other accused persons but the Court did not accept the aforesaid argument and said that the work of the aforesaid Corporators or Mayor is a quasi-judicial function and the order passed on judicial or quasi judicial side. Without any evidence of corporation or taking undue advantage it cannot be said that any offence of PC Act is made out. In para-9 of the aforesaid judgment, the Court said as under:-
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"9. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can certainly be prosecuted and punished in criminal courts. However, in the instant case, there is not even an iota of evidence beyond the said two orders passed by accused Collector to show that he accepted any bribe or been in least degree corrupt. The prosecuting agency cannot be allowed to sit in judgment over the orders passed on judicial or quasi-judicial side by a judge. May be that the accused Collector shall lie against him. The wrong, if any, committed by him could be corrected in appeal. That cannot always from a basis for initiating criminal proceedings against him while he is acting as a judicail or quasi-judicial authority. It must be kept in mind that he being a quasi-judical authority he is always subjected to judicial supervision in appeal or by the High Court under Article 226/227 of the Constitution.
In the instant case also, the orders passed by the Appellat Committee were open judicial review by this Court and in fact reviewed by the Division Bench of this Court . Consequent to the order passed by this Court, the Committee consisting of the same Chairman/Members reviewed all its orders, recalled the same and remanded the cases back to the Commissioner for disposal in accordance with law. This only goes to show bona fide on the parts of the Chairman/Members of the Committee. It was thus wrong to attribute corruption to them in the matter of passing of those orders. The prosecution against htem should, therefore, fail on merits also. "
16. In the light of aforesaid observations, the Court came to the conclusion that since no prosecution is maintainable against the principal accused means Corporator or Mayor, the other accused persons cannot be prosecuted by taking recourse of Section 120-B of IPC. The Court again said that those accused persons are non public servants, therefore, they
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can only be prosecuted for abetment of the offence under Section 13 of the Act alongwith the public servants concerned, not otherwise.
17. Position of present case of petitioner is entirely different. Initially when the complainant submitted the complaint, he was under impression that two officers of Lokayukt also involved in the crime with the present petitioner. But after investigation it has come into the notice that the present petitioner only misused the name of aforesaid two employees . They were not at all in contact with the present petitioner. In the aforesaid situation, it cannot be said that the present petitioner cannot be prosecuted for the offence under various sections of IPC.
18. Another case cited by petitioner is Vikas and another Vs. State of MP (2002) 3 MPLJ 417 .This case was related to the forged caste certificate. As per the role, the matter should be referred to the State Level Committee whose decision will be treated as final and can only be challenged under Section 226 of IPC. In the aforesaid position, the Court said that the investigation done by the police, was not competent. This case does not help the petitioner.
19. The Special Police Establishment is competent or not, this question is required to be decided from the beginning of the investigation. When an FIR was lodged which disclosed the involvement of the public servants and the offences prima facie appear to be under PC Act, then Special Police Establishment/Lokayukt are competent to investigate the matter. Real position will be decided only after the investigation. In the case, initially when the complaint was filed and the offence was registered, at that time prima facie it was appeared that the accused committed the crime with the conspiracy of two officers of Lokayukt. In that situation, definitely Lokayukt Police was competent to investigate the matter. After detailed investigation, the police came to the conclusion that the accused personate himself as Lokayukt Officer and also misused the name of two persons posted in the office of Lokayukt, Sagar,
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therefore, it was found that the petitioner only is responsible for committing the offences under IPC.
20. In the above situation, the Special Police Establishment filed the challan before the competent Court (i.e. CJM Court) not before Special Court of Lokayukt. The CJM Court is competent to take the cognizance of offences alleged under IPC.
21. In the Full Bench case of Arvind Jain(supra), the Full Bench also considered the effect of an illegal investigation as an ancillary question. In para-17 to 19 the Court observed as under:-
"The ancillary question which arises for consideration is effect of an illegal investigation on filing of a charge sheet before the court or law . Three Judge Bench of the Apex Court in the case of H.N. Rishbud v. State of Delhi, AIR 1955 SC 196 has held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. Referring to the provisions of Sections 190, 193, 195 to 199 and 537 of the Code of Criminal Procedure (1898) in the context of an offence under the Prevention of Corruption Act, 1947, the court held:
"A defeat or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt in a public report which results from an investigation is provided in Section 190, Cr.P.C. as the material on which cognizance is taken. But, it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the court to take cognizance. Section 190, Cr.P.C. is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199."
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The same was reiterated in the case of State of M.P. and others v. Ram Singh (2000 Cri LJ 1401) (SC) (supra).
18. In the case of Union of India v. Prakash P. Hinduja, AIR 2003 SC 2612, it was held that once the charge sheet is filed merely because the Investigating Agency had no jurisdiction to investigate the matter, the charge sheet cannot be quashed as it is not possible to say that "cognizance on a invalid police report is prohibited and is therefore quashed".
19. In the conspectus of above discussion, it is held that in view of Section 3 of M.P. Special Police Establishment Act, 1947, the police has jurisdiction to investigate and conduct the trial for the offences under the Prevention of Corruption Act, 1988. The offence of bribery and corruption against the Central Government employees posted in the State of M.P. can be investigated by regular police force or Special Police Establishment."
22. Therefore, looking to the aforesaid law, it can be said that the petition is misconceived. The investigation was done by competent agency and the challan has been filed before the competent Court which was competent to take the cognizance of the aforesaid offences. Therefore, this petition is liable to be dismissed and is accordingly dismissed.
(SUJOY PAUL) (B.K.SHRIVASTAVA )
JUDGE JUDGE
VD/-
Digitally signed by
VARSHA DUBEY
Date: 2019.08.02
10:21:04 +05'30'