Madhya Pradesh High Court
Kishore Samrite vs The State Of M.P. on 20 March, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 20 th OF MARCH, 2024
WRIT PETITION No. 4255 of 2024
BETWEEN:-
KISHORE SAMRITE S/O LATE NANAJI SAMRITE, AGED
ABOUT 55 YEARS, OCCUPATION: SOCIAL WORKER, EX
MLA FROM LANJI CONSTITUENCY DISTT. BALAGHAT,
M.P. PRESIDENT OF SANYUKT KRANTI PARTY. R/O.
LANJI, BALAGHAT DISTT. CHHINDWARA M.P.
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAM SUPHAL VERMA - ADVOCATE)
AND
1. THE STATE OF M.P. THROUGH CHIEF SECRETARY
MANTRALAYA VALLABH BHAWAN, BHOPAL M.P.
(MADHYA PRADESH)
2. PRINCIPAL SECRETARY FOREST DEPARTMENT
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
3. CHIEF CONSERVATOR OF FOREST DIVISION
CHHINDWARA DISTRICT CHHINDWARA
(MADHYA PRADESH)
4. DIVISIONAL FOREST OFFICER CHHINDWARA
DISTRICT CHHINDWARA (MADHYA PRADESH)
5. COLLECTOR CHHINDWARA DISTRICT
CHHINDWARA (MADHYA PRADESH)
6. LOKAYUKTA THROUGH SUPERINTENDENT OF
POLICE CHHINDWARA DISTRICT CHHINDWARA
(MADHYA PRADESH)
7. DIRECTOR OF MP S TAT E RAJYA BAMBOO
MISSION BHOPAL (MADHYA PRADESH)
8. KHEL PARISAR 74 BANGLOO BHOPAL (MADHYA
Signature Not Verified
Signed by: VAISHALI
TRIPATHI
Signing time: 3/22/2024
2:40:54 PM
2
PRADESH)
9. CHIEF EXECUTIVE OFFICER FOREST
DEVELOPMENT AUTHORITY CHHINDWARA
(MADHYA PRADESH)
10. FOREST OFFICER VANMANDAL EAST
CHHINDWARA DISTRICT (MADHYA PRADESH)
11. SHRI S.S. UDDAY (IFS) CHHINDWARA DISTRICT
CHHINDWARA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI YOGESH DHANDE - GOVT. ADVOCATE FOR
RESPONDENT/STATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
The present petition has been filed seeking a writ in the nature of mandamus directing the respondents to consider the representation of the petitioner (Annexure P/4) or to direct the impartial enquiry in the matter by some authority of the State.
2. Learned counsel for the petitioner submits that the petitioner has made complaints of corruption carried out by respondent no.11 and one of such complaints is on record as Annexure P/4. By referring to said complaint (Annexure P/4) it is argued that petitioner has made complaint to the Lokayukt Police Establishment in the matter of corruption to the tune of a huge amount of money. However, the said authorities of Lokayukt establishment have not taken any action on the said representation/complaint of the petitioner. Thus, appropriate directions are sought to be issued to the Lokayukt establishment.
3. It is further argued that since the act of corruption constitutes a criminal offence, hence necessary enquiry be conducted and directions be issued by this Court.
Signature Not Verified Signed by: VAISHALI TRIPATHI Signing time: 3/22/2024 2:40:54 PM 34. Upon hearing learned counsel for petitioner, it is observed that so far as the aspect of getting enquiry carried out by Lokayukt establishment in terms of representation (Annexure P/4) is concerned, the legislature has enacted M.P. Lokayukt evam Up Lokayukt Ahiniyam, 1981. As per Section 9 of the said Adhiniyam of 1981 there is an established mechanism in the matter of lodging a complaint in the manner and form prescribed as per the said provision. A Division Bench of this Court in Kanhaiyalal Vishwakarma vs. State of M.P. ILR 2011 MP 124 had the occasion to consider the aspect of entertaining petition in the matter of seeking enquiry from concerned authority of Lokayukt. The Division Bench has held that there is a mechanism to file complaint and the petitioner has to avail the remedy provided under the said Act. The relevant is as under:-
3. Having heard learned counsel for the petitioner, we are of the view that allegations made by the petitioner are required to be investigated before expressing any opinion o n such allegations. In this regard it would be relevant to notice that the Government has created various authorities under the Special Act to investigate and also to suggest appropriate action against such public servant or officer who has misused or abused his position and as such is guilty of corruption. In this regard it would be relevant to takenote of the provisions of the M.P. Lokayukt Evan Up-Lokayukt Adhiniyam, 1981, (hereinafter referred to as 'the Act') which is an Act to make provision for the appointment and functions of certain authorities for enquiry into the allegations against public servants and for matters connected therewith. The Act was enacted with an object t o constitute Lokayukt Organisation, which replaced the Vigilance Commission. Lokayukt Organisation is an organization which is setup under an enactment made by the State legislature. Having received the statutory sanction, the Lokayukt Organisation is totally free from executive influence. The organisation functions as an instrument of control over the executive by the legislature as its annual Signature Not Verified Signed by: VAISHALI TRIPATHI Signing time: 3/22/2024 2:40:54 PM 4 reports are submitted to the Governor to be laid and discussed in the State Legislative assembly. Section 2(a) of the Act defines 'officer' which reads as under:
"2(a) 'Officer' means a person appointed to a public service or post in connection with the affairs of the State of Madhya Pradesh."
Section 2(b) defines the expression 'allegation' which reads as under:
"2(b) 'allegation' in relation to a public servant means any affirmation that such public servant,--
(i) has abused his position as such to obtain any gain or favour to himself or to any other person or to cause undue harm to any person;
(ii) was actuated in the discharge of his functions as such public servant by improper or corrupt motives;
(iii) is guilty of corruption; or
(iv) is in possession of pecuniary resources or property disproportionate to his known source of income and such pecuniary resources or property is held by the public servant personally or by any member of his family or by some other person on his behalf.
Explanation-For the purpose of this sub-clause 'family' means husband, wife, sons and unmarried daughters living jointly with him".
4. Section 9 of the Act deals with the provisions relating to complaints. Section 9 inter alia provides that every complaint involving an allegation shall be made in such form as may be prescribed and shall be accompanied by deposit of twenty-five rupees. In case a complaint is made against a public servant in relation to whom the Chief Minister is not the competent authority neither the deposit nor the affidavit shall be necessary. Section 10 of the Act deals with the procedure in respect of enquiry. It empowers the Lokayukt or Up-Lokayukt to decide the procedure to be followed for making the enquiry and in so doing ensure that the principles of natural justice are satisfied. Section 11 of the Act makes the provision of the Evidence Act as well as the Code of Criminal Procedure applicable to the procedure of enquiry before the Lokayukt Signature Not Verified Signed by: VAISHALI TRIPATHI Signing time: 3/22/2024 2:40:54 PM 5 or Up-Lokayukt.
5. Section 12 of the Act provides that if after enquiry into the allegations the Lokayukt or an Up-Lokayukt is satisfied that such allegation is established, he shall by report in writing communicate his findings and recommendations along with the relevant document, materials and other evidence to the competent authority. The competent authority is under the obligation to examine the report and to initiate within three months of the date of receipt of the report, the action taken or proposed to be taken on the basis of the report.
6. Thus, from perusal of the provisions of the Act it is graphically clear that the Act has been enacted with the object to investigate cases of corruption in public life and provides for an inbuilt mechanism in respect of complaint with regard to corruption by an officer appointed to a public service or post in connection with affairs of the State of Madhya Pradesh. Since the provisions of the Act are a complete Code in itself and provide a remedy to an aggrieved person, he should at the first instance resort to the remedy provided to him under the Act. In such a case the public interest litigation should not be entertained.
7. The apex court in the case of Guruvayoor Devaswom Managing Committee v. C.K. Rajan, (2003) 7 SCC 546, wherein the allegations were made regarding mismanagement of the affairs of the Guruvayoor temple by a devotee, found that the affairs of the temple are governed by the provisions of the Guruvayoor Devaswom Act, 1978, wherein forums have been created for ventilating the grievances of the affected persons. In that backdrop it was observed in para 60 of the judgment that ordinarily, therefore, such forums should be moved at the first instance. It was further held that the State Government should be asked to look into the grievances of the aggrieved devotees, both as parens patriae as also in discharge of its statutory duties.
8. In view of the aforesaid enunciation of law by the Supreme Court facts of the case in hand may be examined. The allegations made by the petitioner required to be enquired into in the appropriate forum, wherein detailed enquiry would be conducted as per provisions prescribed Signature Not Verified Signed by: VAISHALI TRIPATHI Signing time: 3/22/2024 2:40:54 PM 6 in the Act and an opportunity of hearing would be afforded to the respondent no. 5. Therefore, the petitioner should avail the remedy provided under the Act.
5. Thus no mandatory direction can be issued in the matter of representation(Annexure P/4) as claimed by the petitioner. The petitioner is at liberty to approach the concerned authority as per Section 9 of Adhiniyam, 1981.
6. So far as the prayer made with respect to lodging of FIR and criminal investigation is concerned, In the case of Sakiri Vasu vs State Of U.P. And Others ((2008)2 SCC 409) the Hon'ble Apex Court has held as under:-
11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing.
Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even afterregistering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 156 (3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. 13. The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT 2007 (10) SC 585 (vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C. 14. Section 156 (3) states:
"Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."
The words `as abovementioned obviously refer to Section 156 Signature Not Verified Signed by: VAISHALI TRIPATHI Signing time: 3/22/2024 2:40:54 PM 7 (1), which contemplates investigation by the officer in charge of the Police Station.
15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the e investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. A.C. Saldanna AIR 1980 SC 326 (para 19).
17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation. 24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is verybriefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision.
27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, Signature Not Verified Signed by: VAISHALI TRIPATHI Signing time: 3/22/2024 2:40:54 PM 8 under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C. 28. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere.
7. Recently the Apex Court in the case of M.Subramaniam Vs. S. Janaki (Cr.A. No.102 of 2011) decided on 20/3/2020, has held as under:-
The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hent Dhage mant Yashwaand Others ((2016)6 SCC 277), in which it is observed. "2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.
3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.
4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigation into the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the Signature Not Verified Signed by: VAISHALI TRIPATHI Signing time: 3/22/2024 2:40:54 PM 9 investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police).
Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court."
8. In congruence with the aforesaid well settled position, a Division Bench of this Court has taken a similar view in the case of Shweta Bhadoriya Vs. State of M.P. & others (2017 (1) MPLJ (Cri) 338)).
9. In view of the said legal position on the pointed issue as cited above, the petitioner seems to have rushed to this Court without availing the alternative efficacious remedy as envisaged under Cr.P.C. Thus this writ petition cannot be entertained and is accordingly, dismissed on the ground of availability of efficacious alternative remedy available to the petitioner under Section 9 of Adhiniyam 1981 as well as Section 190, 200 and 156(3) of Cr.P.C.
(VIVEK JAIN) JUDGE VPA Signature Not Verified Signed by: VAISHALI TRIPATHI Signing time: 3/22/2024 2:40:54 PM