Madhya Pradesh High Court
Mahendra Kumar Dubey vs Economic Offences Wing on 31 March, 2021
Equivalent citations: AIRONLINE 2021 MP 2357
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
THE HIGH COURT OF MADHYA PRADESH 1
MCRC 14254 of 2021
Mahendra Kumar Dubey vs. Economic Offences
Wing, Unit Gwalior
Gwalior, Dated : 31/03/2021
Shri Jitendra Kumar Sharma, Counsel for the applicant.
Shri Ankur Mody, Special Public Prosecutor for the respondent/
EOW (through Video Conferencing), with Shri N. K. Gupta, Advocate.
Case Diary is available.
This first application under Section 438 of CrPC has been filed for grant of anticipatory bail.
The applicant apprehends his arrest in connection with Crime No.28/2013 registered at Police Station EOW, Bhopal, Unit Gwalior (MP) for offence punishable under Sections 420 of IPC & Sections 7,13 (1)(c)
(d), 13(2) of Prevention of Corruption Act, 1988.
It is submitted by the Counsel for the applicant that the applicant has retired in the year 2016 from the post of Assistant Director, Farmer Welfare and Agriculture Development Department. On the basis of complaint, EOW/ respondent has registered Crime No.28/2013 for offence under Sections 420, 120-B read with Section 13(1)(c)(d) and 13(2) of Prevention of Corruption Act. It is submitted that in the FIR, two allegations have been made which were duly replied by the applicant, however, during the course of investigation, certain more allegations were taken into consideration without giving an opportunity of hearing to the applicant. It is further alleged that one of the additional allegations was THE HIGH COURT OF MADHYA PRADESH 2 MCRC 14254 of 2021 Mahendra Kumar Dubey vs. Economic Offences Wing, Unit Gwalior that although the applicant was posted in Bhind but he was residing in Gwalior and was attending the Office daily to and fro from Gwalior and was also regularly taking the House Rent Allowance. It is further submitted that the EOW, after concluding the investigation, filed Closure Report which was not accepted by the Special Judge and by order dated 29/01/2021, the Closure Report was rejected and cognizance has been taken and contrary to the judgment passed by the Supreme Court in the case of Inder Mohan Goswami and Another vs. State of Uttaranchal and Others reported in (2007) 12 SCC 1, the trial Court directly issued warrant of arrest whereas it should have issued summons. It is further submitted that the order taking cognizance has already been challenged by the applicant. It is further submitted that although offence was registered in the year 2013 but since cognizance has been taken in the year 2021, therefore, the same could not have been taken in absence of sanction in the light of amended provisions of Section 19 of the Prevention of Corruption Act inserted by the Prevention of Corruption (Amendment) Act, 2018.
Per contra, it is submitted by the learned Special Public Prosecutor for the EOW that the FIR is not an encyclopedia. During the course of investigation if the Investigating Officer finds that some more offence has been committed by the suspect, then the matter can be investigated. The accused has no right or say at the stage of investigation and, therefore, THE HIGH COURT OF MADHYA PRADESH 3 MCRC 14254 of 2021 Mahendra Kumar Dubey vs. Economic Offences Wing, Unit Gwalior there was no requirement for the Investigating Officer to give an opportunity of hearing to the applicant.
So far as the question as to whether the Prevention of Corruption (Amendment) Act, 2018 is retrospective in operation or not is concerned, the Principal Bench of this Court by order dated 21st September, 2020 in the case of Kavindra Kiyawat vs. State of MP, through Special Police Department and Others (WP No.27734 of 2019) has held as under:-
''25. Further, the Telangana High Court in the case of Katti Nagaseshanna Vs. State of Andhra Pradesh by judgment dated 16- 11-2018 passed in Cr.Petition No. 9044 of 2018 has held as under:
The facts of the case are distinguishable as the petitioner claiming immunity from the prosecution on the ground of failure to obtain sanction for prosecuting him taking advantage of explanation by Act 16 of 2018, which came into force with effect from 26.07.2018, but such amendment created/imposed new obligation or duty on the prosecution to obtain sanction to prosecute even retired government servant. Earlier sanction is required only to prosecute the public servant, and when a person (1966) 1 All ER 524 (1894) 1 QB 725 MSM,J Crl.P9044 2018 retired from service, no sanction is required. On account of change of law due to addition of explanation to Section 19 (1) of the P.C.Act, now sanction is required even to prosecute retired government servant. If this provision is given retrospective effect, all retired government servants, against whom prosecutions are pending will sneak out from the prosecutions, it is nothing but accommodating retired Government Servant to escape from pending prosecution under the P.C.Act irrespective of seriousness of offence.
The intention of the legislature is to prevent bribery among the public servants, which is a serious threat THE HIGH COURT OF MADHYA PRADESH 4 MCRC 14254 of 2021 Mahendra Kumar Dubey vs. Economic Offences Wing, Unit Gwalior to the society now and increasing day by day. Therefore, amendment to Section 19 (1) of the P.C. Act though deals with procedure, which cannot be given retrospective effect as it created or imposed new obligation or duty on the prosecution to obtain sanction after more than 7 years from the date of filing charge sheet and taking cognizance against the petitioner. Therefore, I find that such interpretation as sought for by the learned counsel for the petitioner is against the intendment of the Statute.'' It is further submitted that the Principal Bench of this Court in the case of Kavindra Kiyawat (supra) has held that FIR or complaint is not an encyclopedia and the investigation cannot be confined to the allegations made in the complaint/FIR only.
The Principal Bench of this Court in the case of Kavindra Kiyawat (supra) has held as under :-
''45.So far as the submission made by the Counsel for the petitioner, that since, the name of the petitioner is not mentioned in the complaint lodged by Bharat Bamne and Piyush Jain, therefore, he should not have been impleaded as an accused is concerned, it is suffice to say that FIR or complaint is not an encyclopedia and the investigation cannot be confined to the allegations made in the complaint/FIR only. If the facts discovered during enquiry/investigation warrants implication of other persons also as an accused, then there is no bar........................................'' Heard the learned Counsel for the parties.
Although it is submitted by the Counsel for the applicant that the order dated 29/01/2021 by which the Special Judge has rejected the Closure Report and has taken cognizance is already under challenge, THE HIGH COURT OF MADHYA PRADESH 5 MCRC 14254 of 2021 Mahendra Kumar Dubey vs. Economic Offences Wing, Unit Gwalior however, for the purpose of bail application, this Court would like to observe that in the said order itself it is mentioned that the Investigating Officer had prima facie found that the allegations made against the applicant are proved and accordingly, he placed his opinion before the DPO for his opinion. The DPO, by his opinion dated 04/07/2004, observed that the allegations made against the applicant are found to be prima facie proved but the allegations against other co-accused were not prima facie proved. Thereafter, the matter was placed before the Assistant Inspector General (Crime) who opined that the case is based on the documents which are not of good quality and the evidence is insufficient. The Investigating Officer in his final opinion had stated that so far as the allegation that although the Headquarters of the applicant was Bhind but the applicant was residing in Gwalior and he was attending his Office daily to and fro from Gwalior is concerned, the same is not required to be taken in the Investigation. However, as per the allegations, it was also alleged that the applicant has also taken HRA for the said period. The allegation of taking HRA has not been looked into by the Investigating Officer. The Investigating Officer had come to a conclusion that under different heads, the applicant has wrongly sanctioned grant in favour of various persons specifically when no land was in existence as it had fallen in the area of submergence. Although the Case Diary does not point out any remarks by the Assistant Inspector General (Crime) that the case is based on THE HIGH COURT OF MADHYA PRADESH 6 MCRC 14254 of 2021 Mahendra Kumar Dubey vs. Economic Offences Wing, Unit Gwalior insufficient evidence and quality of evidence is not up-to mark but the said fact is mentioned in the Closure Report which reads as under:-
izdj.k dh lEiw.kZ foospuk dze esa vkjksihx.k }kjk mPp U;k;ky; [k.MihB Xokfy;j esa nk;j ;kfpdk ,e-lh-vkjh- dzekad 6791@16 esa fn;s x;s funsZ'k ds ikyu esa foospuk iw.kZ dj foospuk dk vafre izfrosnu Hkkx&1 rFkk Mhihvks }kjk fn;s x;s vafre izfrosnu Hkkx&2 dksizdks"B eq[;ky; izsf"kr fd;k x;k FkkA ftldk eq[;ky; Lrj ij ijh{k.k mijkar izdj.k ds nLrkostksa ij xq.koRrkghu rFkk vi;kZIr lk{; gksus ls izdj.k esa [kkRek dk fu.kZ; fy;k x;kA rFkk ,e-lh-vkjh- dzekad 6791@16 egsUnz nqcs fo:) e0iz0'kklu esa ekuuh; mPp U;k;ky; [k.MihB Xok0 }kjk ikfjr fu.kZ; fnukad 10-04-17 esa ekuuh; mPp U;k;ky; }kjk fnukad 08-05- 17 dks izdj.k fujkdj.k gsrq fu;r gksus le;&lhek esa oS/kkfud dk;Zokgh dj vafre izfrosnu ¼[kkRek½ rS;kj djus gsrq ys[k fd;k x;k gSA So far as the contention of the counsel for the applicant that in the light of judgment passed by the Supreme Court in the case of Inder Mohan Goswami (supra) the Court must have issued summons is concerned, the issuance of warrant of arrest by the Trial Court while rejecting the Closure Report will not make much difference because even in the case of summons, the applicant was required to surrender before the Trial Court and then to file an application for grant of regular bail.
So far as the question of requirement of sanction for prosecution as per amended provision of Section 19 of Prevention of Corruption Act is concerned, the said aspect has already been considered by the Court in the case of Kavindra Kiyawat (supra) and the judgment passed by Telangana High Court in the case of Katti Nagaseshann (supra) and it has been THE HIGH COURT OF MADHYA PRADESH 7 MCRC 14254 of 2021 Mahendra Kumar Dubey vs. Economic Offences Wing, Unit Gwalior held that the Amendment of 2018 is not retrospective in operation. Since in the present case, the offence was registered in the year 2013, this Court is of the considered opinion that sanction was not required merely because of the fact that the Closure Report was filed in the year 2021. It is undisputed that applicant has already retired in the year 2016.
Considering the fact that the corruption is a menace to the civilized society, no case is made out for the grant of anticipatory bail. The application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2021.04.01 18:09:47 +05'30'