Madhya Pradesh High Court
Vivek Singh vs The State Of Madhya Pradesh on 19 May, 2020
Equivalent citations: AIRONLINE 2020 MP 700
Author: Rajeev Kumar Shrivastava
Bench: Sheel Nagu, Rajeev Kumar Shrivastava
-( 1 )- WP No. 25440/2019
Vivek Singh vs. State of Madhya Pradesh and Others
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: SHEEL NAGU
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Writ Petition No. 25440/2019
Vivek Singh
Versus
State of MP and Others
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Shri Kumar Shashank with Shri D.P.Singh and Nivesh Kumar,
Advocates for the petitioner.
Shri Pratip Visoriya, Government Advocate for the respondents
No.1 to 3.
Shri F.A.Shah, Advocate for the respondent No.4.
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ORDER
(19/05/2020) Per Rajeev Kumar Shrivastava,J.:
By this writ petition under Article 226 of the Constitution, the petitioner has assailed the order dated 3.10.2016, whereby the respondent No.3, i.e., Deputy Secretary (Personnel), General Administration Department, Mantralaya, Govt. of MP, Vallabh Bhawan, Bhopal (MP), has granted sanction to prosecute the petitioner under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (for brevity, the 'PC Act') and Sections 420, 471, 120-B of Indian Penal Code.
2. The facts of the case in short are that the petitioner is an employee of the State Administrative Service and presently attached at Divisional Headquarter Narmadapuram, Hoshangabad, District Hoshangabad. In the year 2004 the petitioner was posted -( 2 )- WP No. 25440/2019 Vivek Singh vs. State of Madhya Pradesh and Others on deputation as Commissioner, Municipal Corporation, Gwalior w.e.f. 23.3.2004 and he worked for approximately eight months up to 27.11.2004. One Sudhir Singh Sengar filed a complaint to Lokayukt. The said complaint was bogus and was filed by committing fraud, cheating and misusing the name of Sudhir Singh Sengar and by making forged signature of Sudhir Singh Sengar. When this fact came to the knowledge of actual Sudhir Singh Sengar, he filed specific affidavit in the Office of Lokayukta denying to have made any complaint and submitted that forgery is played using his name by some mischievous persons. He also demanded action against those mischievous persons. Ignoring the affidavit filed by Sudhir Singh Sengar, the Lokayukta registered Crime No. 21/2009 under Section 13(1)(d), 13(2) of PC Act and Section 120-B of IPC. After filing of affidavit by Sudhir Singh Sengar, Lokayukta failed to identify the person who made the complaint. Thereafter, Sudhir Singh Sengar approached this Court and filed one application under Section 482 of CrPC, which was allowed on 23.1.2015 and this Court directed the Lokayukta to conduct enquiry and take action against the person concerned. The Lokayukta enquired the matter and registered Crime No. 382/2016.
3. It is further submitted that in between, by various orders this Court directed the General Administration Department through its Principal Secretary/Additional Chief Secretary for considering pending representation of the petitioner. Despite aforesaid, the parent department of the petitioner granted sanction which is faulty as it was contrary to the legal position. The said sanction was tainted, malafide and prejudiced. There was no prima facie evidence against the petitioner. No prior intimation was -( 3 )- WP No. 25440/2019 Vivek Singh vs. State of Madhya Pradesh and Others given to the parent department. The case was registered with malafide intention. Due to aforesaid pendency of the case, the present petitioner has lost opportunity of due promotion. Hence, the petitioner has filed the instant writ petition.
4. Learned counsel for the petitioner has submitted that the impugned order passed by the respondent-authority is per se illegal, arbitrary and malafide and is totally without application of mind. The order is unsustainable, hence deserves to be quashed. The respondents have failed to comply the directions given by this Court in its true spirit and sense. While granting the prosecution sanction the respondent-authority has failed to consider the consequential report submitted by Lokayukta on 10.2.2015. Originally the petitioner was on deputation in Urban Administration Department. The borrowing department has denied the prosecution sanction as no offence is made out, despite the sanction granted is illegal. In support of his submissions, learned counsel for the petitioner has placed reliance on para 12 of the judgment in the case of Vinod Chandra Semwal vs. Special Police Establishment, Ujjain [(2015) 8 SCC 383], wherein it is observed as under :-
"12. In the present case what we find is that the delegatee K.K.Singh Chauhan executed the exchange-deed dated 23.12.1993 on behalf of the Chairman. There is nothing on record to suggest that it was executed at the instance of the appellant. By Office Order dated 22.12.1992, the appellant, as Chairman of the Trust, delegated all his powers to Shri K.K.Singh Chauhan, Chief Executive Officer, Town Improvement Trust under Section 25(1) (2) of the Act. All the powers, duties or functions were delegated to him except the powers conferred or imposed upon or vested in Chairman under Sections 16, 19, 29 and 56 of -( 4 )- WP No. 25440/2019 Vivek Singh vs. State of Madhya Pradesh and Others the Act. If the delegatee has not acted in terms of the delegated powers, we are of the view that the delegator cannot be held to be guilty for such execution of the exchange deed. Though for some other reasons, we are of the view that it was not a fit case for grant of sanction either under Section 19 of the P.C. Act for prosecuting the appellant under Sections 13(1)(d) read with 13(2) of the P.C. Act or under Section 197 Cr.P.C. for prosecuting the appellant under Section 120B IPC. If the State Government and the Central Government refused to grant sanction, the Special Judge rightly declined to take cognizance of the offences punishable under Section (1)(d) read with Section 13 (2) of the P.C. Act and for want of prosecution of sanction under Section 19 of the P.C. Act and Section 120B IPC for want of sanction under Section 197 Cr.P.C."
On the above premises, learned counsel for the petitioner has prayed to allow the writ petition and quash the impugned order dated 3.10.2016.
5. Per Contra, learned counsel for the respondents have supported the impugned order and submitted that looking to the allegations against the petitioner and gravity of the offence, no case is made out warranting interference by this Court in the present writ petition.
6. Heard learned counsel for the parties and perused the available record.
7. Section 197 of the Code of Criminal Procedure reads as follows :
"197. Prosecution of Judges and public servants.
--(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while -( 5 )- WP No. 25440/2019 Vivek Singh vs. State of Madhya Pradesh and Others acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013--
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause
(b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government"
were substituted.
Explanation.--For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, 5 [section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB] or section 509 of the Indian Penal Code (45 of 1860).
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub-
section (2) shall apply to such class or category -( 6 )- WP No. 25440/2019 Vivek Singh vs. State of Madhya Pradesh and Others of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
(3A) Notwithstanding anything contained in sub-section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the Contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
8. In the present case, it is apparent that the investigation -( 7 )- WP No. 25440/2019 Vivek Singh vs. State of Madhya Pradesh and Others has been completed and charge sheet has been filed before the competent Court. It is settled legal position that once the investigation has been completed and charge sheet has been filed then the effect of sanction is not material.
9. In Laxminarayan vs. State of MP [1987 (1) MPWN 64], it is observed that if prosecution sanction is not filed along with charge sheet then it can be filed at any time during trial prior to closure of prosecution evidence.
10. In Chittaranjan Das vs. State of Orissa [AIR 2011 SC 2893], it is observed that the prosecution sanction is a protection available only to safeguard the honest employee and in the case of Prakash Singh Badal vs. State of Punjab [AIR 2007 SC 1274], it is observed that if any criminal act is done with the help of authority given as public servant, the same shall be covered under misuse of its duties.
11. In the present case it is the stand of the petitioner that the prosecution sanction was not proper. In Ashok Tshering Bhutia vs. State of Sikkim [AIR 2011 SC 1363], it is observed as under :-
"12. In the absence of anything to show that any defect or irregularity therein caused a failure of justice, the plea is without substance. A failure of justice is relatable to error, omission or irregularity in the sanction. Therefore, a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby. Section 19 (1) of the PC Act 1988 is a matter of procedure and does not go to the root of the jurisdiction and once the cognizance has been taken by the Court under Cr.P.C., it cannot be said that an invalid police report is the foundation of jurisdiction of the court to take cognizance.
-( 8 )- WP No. 25440/2019Vivek Singh vs. State of Madhya Pradesh and Others (Vide Kalpnath Rai v. State (Through CBI), AIR 1998 SC 201; State of Orissa v.
Mrutunjaya Panda, AIR 1998 SC 715; State by Police Inspector v. Sri T. Venkatesh Murthy, (2004) 7 SCC 763; Shankerbhai Laljibhai Rot v. State of Gujarat, (2004) 13 SCC 487;
Parkash Singh Badal & Anr. v. State of Punjab & Ors., AIR 2007 SC 1274; and M.C. Mehta v.
Union of India & Ors. (Taj Corridor Scam), AIR 2007 SC 1087).
16. This Court in State of Gujarat v.
Mohanlal Jitamalji Porwal & Anr., AIR 1987 SC 1321, dealing with the issue held as under:
"...To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona- non-grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful -( 9 )- WP No. 25440/2019 Vivek Singh vs. State of Madhya Pradesh and Others of the damage done to the national economy and national interest....."
12. On the basis of above, it is apparent that no failure of justice has been caused to the petitioner. Initially FIR was lodged against the petitioner in the year 2009, thereafter the trial is pending. The petitioner has ample opportunity to put forth his defence judiciously before the trial Court. Thus, it appears that there is no bonafide on the part of the petitioner. Hence, no ground is made out for quashing the impugned order as well as consequential proceedings. The writ petition sans substance and is hereby dismissed. The trial Court is hereby directed to conclude the trial within six months of this order.
(Sheel Nagu) (Rajeev Kumar Shrivastava)
(yog) Judge Judge
YOGESH VERMA
2020.05.19
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'
15:10:08 +05'30'