Madhya Pradesh High Court
Ashutosh Malviya vs The State Of Madhya Pradesh on 8 June, 2021
Equivalent citations: AIRONLINE 2021 MP 684
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
M.Cr.C No.23949/2018
Ashutosh Malviya
VS.
State of M.P.
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Shri Pushpendra Dubey, learned counsel for the petitioner.
Shri Sharad Singh, learned P.L. for the respondent/State.
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ORDER
(08.06.2021) This petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved by the order dated 22.12.2017 in S.T. No. 204/2014 passed by First Additional Sessions Judge, Multai, District-Betul whereby the learned Judge has allowed the application filed by the respondent/State under Section 319 Cr.P.C.
2. According to case, on 17.10.2013, a written complaint was made by Aditya Nagar, Additional Chief Executive Officer, Jila Panchayat, Betul, to the P.S.-Betul stating therein that under "Mukhyamantri Sadak Yojna", a Gravel Road of 2.58 kms. was being constructed between Masoud-Dongarpur village. The construction work was commenced in the year 2010 in which certain irregularities were found, for which, an inquiry committee comprising of three members, namely, Ajay Kumar 2 M.Cr.C. No. 23949/18 Saxena (Project Officer), Aditya Nagar, Addl. CEO (complainant) and Shishir Kushwaha (General Manager) was constituted which submitted the inquiry report dated 09.09.2013 to the competent authority. On the basis of such inquiry report, the Police Station- Betul registered the FIR vide Crime No.796/13 for the offence under Sections 409, 420, 467, 468 and 34 of IPC against seven accused persons and after the investigation, challan has been filed before the learned Court of Sessions. Thereafter the trial Court has framed the charges against those seven accused persons. Prosecution produced the evidence of the witnesses during trial. After the prosecution evidence, the statements of accused persons under Section 313 of Cr.P.C. were also recorded by the trial Court and the case was fixed for defence evidence. Thereafter, the prosecution moved an application under Section 319 of Cr.P.C. for adding six other persons as accused in the present case including present petitioner-accused. It is mentioned in the application that in the inquiry report dated 09.09.2013, the-then Consultant, S.D.O. and Executive Engineer are responsible for alleged irregularities occurred in constructing the Masoud- Dongarpur road under the scheme of "Mukhyamantri Sadak Yojna". It is further mentioned in the application that in trial, the witnesses Ajay Kumar Saxena (PW-1), Aditya Nagar (PW-6), Shishir Kushwaha (PW-17) and M.S. Dhurvey (PW-10) have stated against the petitioner and other persons. The State has also 3 M.Cr.C. No. 23949/18 drawn attention of the Court below towards Ex./P-17. Thereafter, the learned trial Court found sufficient ground to add and implead them as an accused, hence, the learned trial Judge allowed the said application and directed to include the name of present petitioner, as an accused in the said case along with other four persons.
3. Learned counsel for the petitioner submits that the learned Court below erred in allowing the application filed by the respondent. He submits that the Court has overlooked the fact that there was no strong evidence against the petitioner. He further submits that during investigation, the police has recorded the statements of aforesaid witnesses but the police did not find anything against the petitioner, hence, no FIR was registered against the petitioner. Consequently, no new material has been produced before the Court which could indicate the involvement of the present petitioner, therefore, the impugned order deserves to be quashed. While arguing on the point of legal principle, learned counsel for the petitioner stated that the power of Court under Section 319 Cr.P.C is discretionary and extraordinary in nature and before invoking the same, the trial Court should have assured itself that there is strong and cogent evidence available against the petitioner. He further submits that merely on the basis of the statements of the witnesses about the involvement of petitioner, the order is not sustainable in the eye of law. He 4 M.Cr.C. No. 23949/18 submits that in the case, the trial Court failed to appreciate that there is no role ascribed to the petitioner in alleged irregularities. He also submits that name of the present petitioner is not existing in the FIR and he was also not charge sheeted by the police, if prima facie any case was made out against the petitioner, the Court had to see the same while taking cognizance in the case but it is not done by the trial Court which shows that the petitioner is innocent. The petitioner has also pleaded on the point of sanction under Section 197 Cr.P.C. With the aforesaid, he prays to allow this petition.
4. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the petitioner submitting that the petitioner was involved in the alleged irregularities, as shown in the inquiry report too. The learned trial Court has rightly appreciated the facts of the case. He further argued that the petitioner is not a Government servant, hence, no question of sanction under Section 197 Cr.P.C. arises. With the aforesaid, he prays for dismissal of this petition.
5. Heard and perused the case diary.
6. It is alleged by the prosecution that the present petitioner/accused was working as Consultant in Scape Associates during the period from year 2010 to 2013. Since, the petitioner's counsel pleaded that the petitioner is entitled to get 5 M.Cr.C. No. 23949/18 the protection under Section 197 Cr.P.C, therefore, the same should be decided first. A consultant is not a Government servant and he is appointed to perform the traditional duties and responsibilities of an "Engineer". In the case of Bharat Sanchar Nigam Limited and Others vs Pramod V. Sawant & Another reported in 2019 SCC OnLine SC 104, the Hon'ble Apex Court has held as under:-
9. The necessary facts with regard to status of appellant no. 2 are not very clear from the pleadings.
It appears that at the relevant point of time before superannuation he was on deputation to the Corporation. The allegations related to discharge of his duties in the appellant Corporation. We are therefore required to consider if sanction under Section 197, Cr.P.C. was a prerequisite with regard to him in a status as a 'public servant'. The question is no more res integra and stands authoritatively settled that employees of public sector corporations are not entitled to the protection under Section 197 Cr.P.C. as 'public servant'.
10. In Mohd. Hadi Raja (supra), the court was considering the need for sanction for prosecuting officers of public sector undertakings or government companies falling within the definition of 'State' under Article 12 of the Constitution and who were removable from office save by sanction of the Government. Holding that protection under Section 197, Cr.P.C. was not available to such persons, it was held as follows:
"27. Therefore, in our considered opinion, the protection by way of sanction under Section 197 of the Code of Criminal Procedure is not applicable to the officers of government companies or the public undertakings even when such public undertakings are "State" within the meaning of Article 12 of the Constitution on account of deep and pervasive control of the Government...."
11.In N.K. Sharma v. Abhimanyu, (2005) 13 SCC 213, rejecting the challenge for requirement of sanction under Section 197, Cr.P.C., it was observed as follows:
"13. Admittedly the salary of the appellant is not paid by the Government. He at the relevant time was not in the service of the State. Prosecution against an officer of a government company or a public undertaking 6 M.Cr.C. No. 23949/18 would not require any sanction under Section 197 CrPC."
7. In view of the above observation of the Hon'ble Apex Court, the petitioner is not entitled to get any protection under Section 197 Cr.P.C.
8. Now, I proceed further to examine the merits of case. According to the enquiry report dated 09.09.2013, the consultant (petitioner) of Scape Associates has filled the details of measurement in measurement book. The inquiry officer also found some overwriting in the level book prepared by the consultant and some discrepancies are also found in the entries made by the S.D.O. and the Consultant. Further, on perusal of statements of witnesses recorded before the trial Court, it is found that Ajay Kumar Saxena (PW-1) who was the inquiry officer, has accepted the fact that the work of consultant is only to advice the officers of R.E.S. department. The Consultant was not responsible for measuring, leveling, soil inspection etc. of road construction work. Further, another inquiry officer Aditya Nagar (PW6) deposed that he is unable to explain why the name of consultant was not mentioned in the FIR. Sishir Kushwah (PW- 7) was an another inquiry officer who stated before the trial Court that there was much difference between the entries filled in the level book prepared by the consultant and officer of department. He further stated that there were also some 7 M.Cr.C. No. 23949/18 irregularities on the point of soil calculation. He deposed that he found that the consultant and officers of department committed irregularities in primary level work. He also stated about the overwriting in level book of consultant. He further deposed that till 02.01.2012, the measurement was entered by the team leader and A.R.I. of consultant, namely, Scapes Associates, subsequently entered by Sub-Engineer and same was verified by the S.D.O. of department. Further, in his cross examination, he accepted the fact that he did not propose the action against the consultant as same was expected from the Executive Engineer of department.
9. On collecting information regarding work of a Consultant, I find that a Consultant is a "private entity" and he is expected to perform the traditional duties and responsibilities of an "Engineer". All the functions of supervision consultants need to be appropriately addressed in order to account for the administrative, technical, financial and other requirements. Consultant gives his opinion regarding a technical engineering problem and others. According to witness Ajay Kumar Saxena (PW-1), inquiry officer, the work of Consultant is only to advice the officers of the R.E.S. department.
10. In the case of Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, the constitutional Bench of Hon'ble Supreme Court has held that for invoking the power under Section 319 8 M.Cr.C. No. 23949/18 Cr.P.C., there should be of more than prima facie case, relevant para is quoted as under :-
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-
examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.
11. Further, by following the Hardeep Singh's case, in the case of Sunil Kumar Gupta v. State of U.P., (2019) 4 SCC 556, the Hon'ble Supreme Court reiterated the principle for invoking power under Section 319 Cr.P.C, same is quoted as under :-
10. Section 319(1) CrPC empowers the court to proceed against any person not shown as an accused if it appears from the evidence that such person has committed any offence for which such person could be tried together along with the accused. It is fairly well settled that before the court exercises its jurisdiction in terms of Section 319 CrPC, it must arrive at satisfaction that the evidence adduced by the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as the accused in the case.
11. In Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] , the Constitution Bench held as under: (SCC p. 138, paras 105-06) "105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be 9 M.Cr.C. No. 23949/18 exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-
examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words ' [Ed.:
The matter between two asterisks has been emphasised in original.] for which such person could be tried together with the accused [Ed.: The matter between two asterisks has been emphasised in original.] '. The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."
(emphasis supplied)
12. Observing that for exercising jurisdiction and its discretion in terms of Section 319 CrPC, the courts are required to apply stringent tests, in Sarabjit Singh v.
State of Punjab [Sarabjit Singh v. State of Punjab, (2009) 16 SCC 46 : (2010) 2 SCC (Cri) 141] , it was held as under: (SCC pp. 54-55, paras 21-23) "21. An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
22. ... Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing 10 M.Cr.C. No. 23949/18 charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction.
23. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied."
(emphasis supplied)
12. On careful reading of the above said pronouncement, it appears that the Constitutional Bench, in the Hardeep Singh's case, has held that under Section 319 Cr.P.C., Court can proceed against any person, who is not an accused in a case before it. The Constitutional Bench, however, has held that the person against whom the court decides to proceed, "has to be a person whose complicity may be indicated and connected with the commission of the offence". The Court has given a caution that power under Section 319 Cr.P.C. is a discretionary and extraordinary power, which should be exercised sparingly and only in those cases where the circumstances of the case so warrant. To invoke the power under Section 319 Cr.P.C, there should be more than prima facie case if which goes un-rebutted, would lead to conviction. Mere disclosing the names of the petitioner cannot be said to be a strong and cogent evidence to make him to stand for trial under Section 319 of the Code.
11M.Cr.C. No. 23949/18
13. In the present case, the trial Court has allowed the application filed by the prosecution under Section 319 Cr.P.C. The name of the petitioner is neither mentioned in the FIR nor in the charge sheet. Even more, the witnesses have not disclosed the name of present petitioner specifically in their statements. During investigation, the police has recorded the statements of witnesses who inquired the matter under departmental proceeding and on perusal thereof, name of petitioner is also not found there, although, the details of inquiry report is the part of statement wherein some allegations have been made against the Consultant (petitioner) but herein also the name of present petitioner has not been specifically mentioned.
14. As discussed above, in the statement recorded before the trial Court, the witnesses admitted the fact that the officers of department were having responsibility to verify the entries entered by the Consultant. Moreover, Ajay Kumar Saxena (PW-1) one of the inquiry officer, accepted the fact that the work of Consultant is only to advice the officers of the R.E.S. department, he was not responsible for measuring, leveling, soil inspection etc. of road construction work. Hence, the evidence available in the case is not found satisfactory more than prima facie evidence and same are not cogent and strong enough to implead the petitioner as an accused invoking the power under Section 319 of Cr.P.C.
12M.Cr.C. No. 23949/18
15. Therefore, in view of the principle laid down in the above referred case laws, nature of work of the Consultant as well as considering the fact that the name of petitioner has not been specifically mentioned in the material placed on record, I am of the view that the learned trial Court erred in allowing the application filed by the prosecution.
16. Accordingly, this petition is hereby allowed. Consequently, the impugned order dated 22.12.2017 in S.T. No. 204/2014 passed by First Additional Sessions Judge, Multai, District-Betul is hereby quashed only in relation to present petitioner.
(Rajendra Kumar Srivastava) Judge sp Digitally signed by SAVITRI PATEL Date: 2021.06.08 17:43:46 +05'30'