Madhya Pradesh High Court
Rajendra Singh vs The State Of Madhya Pradesh on 27 February, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:4553
1 WP. No.8050 of 2016
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 27th OF FEBRUARY, 2025
WRIT PETITION No. 8050 of 2016
RAJENDRA SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Dharmendra Nayak - Advocate for petitioner.
Shri S.S. Kushwaha - Government Advocate for respondents/State.
Shri Shivendra Singh Raghuvanshi- Advocate for respondent No.4.
ORDER
This petition, under Article 226 of the Constitution of India, has been filed against the order dated 27/09/2016 passed by Chief Executive Officer, Janpad Panchayat Aron, District Guna, by which request was made to Station House Officer, Police Station Aron to register an FIR against the petitioner.
2. Facts necessary for disposal of the present petition, in short, are that petitioner was working on the post of Panchayat Secretary in Gram Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/5/2025 6:44:45 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:4553 2 WP. No.8050 of 2016 Panchayat Sawanbhado, Tahsil Aaron, District Guna. The State Government sanctioned 40 Indira Aawas Kutir for residents of Gram Panchayat Sawanbhado and accordingly, the first installment of Rs.22,500/- was deposited in the bank account of each beneficiary for the construction of Indira Aawas Kutir. It was the requirement of guidelines that second installment would be deposited after full verification. It is the case of petitioner that a complaint was made that after the amount was deposited in the account of beneficiaries, petitioner took Rs.15,000/- from them on the pretext that he would provide material and would get the Indira Aawas Kutir constructed but nothing was done. Accordingly, departmental charge-sheet was issued on 25/07/2015.
3. It is submitted that some of the beneficiaries have given an affidavit that they never made any complaint against the petitioner and therefore, it is submitted that direction to register FIR is bad in law. Furthermore, no opportunity of hearing was given to petitioner before directing to register FIR.
4. It is submitted that in case petitioner has misappropriated any amount, then same can be recovered by proceeding under Section 89/91 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam (for short "the Adhiniyam") and, therefore, registration of FIR is bad in law.
5. Per contra, counsel for the respondents has supported the direction given by the Authority.
6. Heard learned counsel for the parties.
Whether direction to register an FIR is bad in the light of provisions of Sections 89 and 91 of the Adhiniyam?
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7. Counsel for petitioner could not point out any provision in the Adhiniyam which prohibits applicability of provisions of I.P.C./B.N.S.
8. The Supreme Court in the case of State of M.P. v. Rameshwar reported in (2009) 11 SCC 424 has held as under:-
"48. Mr Tankha's submissions, which were echoed by Mr Jain, that the M.P. Cooperative Societies Act, 1960 was a complete code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted in view of the fact that there is no bar under the M.P. Cooperative Societies Act, 1960, to take resort to the provisions of the general criminal law, particularly when charges under the Prevention of Corruption Act, 1988, are involved."
9. The Supreme Court in the case of Dhanraj N Asawani Vs. Amarjeetsingh Mohindersingh Basi and Others decided on 25/07/2023 in Criminal Appeal No.2093/2023 has held as under: -
" 27. From the narration of submissions before this Court, it appears that on 31 May 2021, the Minister in - charge of the Co - operative department has set aside the audit report while directing a fresh audit report for 2016 - 2017 and 2017 - 2018. The order of the Minister has been called into question in independent proceedings before the High Court. This Court has been apprised of the fact that t he proceedings are being heard before a Single Judge of the High Court. The proceedings which have been instituted to challenge the order of the Minister will have no bearing on whether the investigation by the police on the FIR which has been filed by the appellant should be allowed to proceed. The police have an independent power and even duty under the CrPC to investigate into an offence once information has been drawn to their attention indicating the commission of an offence. This power is not curtailed by the provisions of 1960 Act. There is no express bar and the provisions of Section 81(5B) do not by necessary Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/5/2025 6:44:45 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:4553 4 WP. No.8050 of 2016 implication exclude the investigative role of the police under the CrPC."
10. Thus, in absence of any bar to the provisions of I.P.C./B.N.S., it is held that merely because there is a provision for recovery of money, it cannot be said that FIR cannot be lodged. Recovery of civil liability and adjudication of criminal acts are two different things and accordingly, contention of petitioner that in the light of Sections 89 and 91 of the Adhiniyam direction to lodge FIR is bad, is misconceived and is, hereby, rejected.
Whether accused has a right of pre-audience before registration of FIR or not?
11. The aforesaid question is no more res integra.
12. The Supreme Court in the case of State Bank of India & others Vs. Rajesh Agarwal and others, decided on 27-3-2023 in Civil Appeal No.7300 of 2022, has held as under:
"30. While the borrowers argue that the actions of banks in classifying borrower accounts as fraud according to the procedure laid down under the Master Directions on Frauds is in violation of the principles of natural justice, the RBI and lender banks argue that these principles cannot be applied at the stage of reporting a criminal offence to investigating agencies. At the outset, we clarify that principles of natural justice are not applicable at the stage of reporting a criminal offence, which is a consistent position of law adopted by this Court. In Union of India v. W N Chadha, a two-judge bench of this Court held that that providing an opportunity of hearing to the accused in every criminal case before taking any action against them would "frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd, and self-defeating." Again, a two-judge bench of this Court in Anju Chaudhary v. State of UP has Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/5/2025 6:44:45 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:4553 5 WP. No.8050 of 2016 reiterated that the Code of Criminal Procedure, 1973 does not provide for right of hearing before the registration of an FIR."
13. The Supreme Court in the case of Romila Thapar and others vs. Union of India and others reported in (2018) 10 SCC 753 has held as under:-
"24. Turning to the first point, we are of the considered opinion that the issue is no more res integra. In Narmada Bai v. State of Gujarat, in para 64, this Court restated that it is trite law that the accused persons do not have a say in the matter of appointment of investigating agency. Further, the accused persons cannot choose as to which investigating agency must investigate the offence committed by them. Para 64 of this decision reads thus: (SCC p. 100) "64. ... It is trite law that the accused persons do not have a say in the matter of appointment of an investigating agency. The accused persons cannot choose as to which investigating agency must investigate the alleged offence committed by them."
(emphasis supplied)
15.Again in Sanjiv Rajendra Bhatt v. Union of India, the Court restated that the accused had no right with reference to the manner of investigation or mode of prosecution. Para 68 of this judgment reads thus: (SCC p. 40) "68. The accused has no right with reference to the manner of investigation or mode of prosecution. Similar is the law laid down by this Court in Union of India v. W.N. Chadha, Mayawati v. Union of India, Dinubhai Boghabhai Solanki v. State of Gujarat, CBI v. Rajesh Gandhi, CCI v. SAIL and Janata Dal v. H.S. Chowdhary."
(emphasis supplied)
26. Recently, a three-Judge Bench of this Court in E. Sivakumar v. Union of India, while dealing with the appeal Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/5/2025 6:44:45 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:4553 6 WP. No.8050 of 2016 preferred by the "accused" challenging the order of the High Court directing investigation by CBI, in para 10 observed:
(SCC pp. 370-71) "10. As regards the second ground urged by the petitioner, we find that even this aspect has been duly considered in the impugned judgment. In para 129 of the impugned judgment, reliance has been placed on Dinubhai Boghabhai Solanki v. State of Gujarat, wherein it has been held that in a writ petition seeking impartial investigation, the accused was not entitled to opportunity of hearing as a matter of course. Reliance has also been placed on Narender G. Goel v. State of Maharashtra, in particular, para 11 of the reported decision wherein the Court observed that it is well settled that the accused has no right to be heard at the stage of investigation. By entrusting the investigation to CBI which, as aforesaid, was imperative in the peculiar facts of the present case, the fact that the petitioner was not impleaded as a party in the writ petition or for that matter, was not heard, in our opinion, will be of no avail. That per se cannot be the basis to label the impugned judgment as a nullity."
27. This Court in Divine Retreat Centre v. State of Kerala, has enunciated that the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint an investigating officer of its own choice to investigate into a crime on whatsoever basis. The Court made it amply clear that neither the accused nor the complainant or informant are entitled to choose their own investigating agency, to investigate the crime, in which they are interested. The Court then went on to clarify that the High Court in exercise of its power under Article 226 of the Constitution can always issue appropriate directions at the instance of the aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide.
28. Be that as it may, it will be useful to advert to the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/5/2025 6:44:45 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:4553 7 WP. No.8050 of 2016 exposition in State of West Bengal and Ors. Vs. Committee for Protection of Democratic Rights, West Bengal and Ors.13 In paragraph 70 of the said decision, the Constitution Bench observed thus:
"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 13 (2010) 3 SCC 571 38 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."
29. In the present case, except pointing out some circumstances to question the manner of arrest of the five named accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/5/2025 6:44:45 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:4553 8 WP. No.8050 of 2016 of power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough. 39 Rather, averment in the petition as filed was to buttress the reliefs initially prayed (mentioned in para 7 above) - regarding the manner in which arrest was made. Further, the plea of the petitioners of lack of evidence against the named accused (A16 to A20) has been seriously disputed by the Investigating Agency and have commended us to the material already gathered during the ongoing investigation which according to them indicates complicity of the said accused in the commission of crime. Upon perusal of the said material, we are of the considered opinion that it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning their link with the members of the banned organization and its activities. This is not the stage where the efficacy of the material or sufficiency thereof can be evaluated nor it is possible to enquire into whether the same is genuine or fabricated. We do not wish to dilate on this matter any further lest it would cause prejudice to the named accused and including the co-accused who are not before the Court. Admittedly, the named accused have already resorted to legal 40 remedies before the jurisdictional Court and the same are pending. If so, they can avail of such remedies as may be permissible in law before the jurisdictional courts at different stages during the investigation as well as the trial of the offence under investigation. During the investigation, when they would be produced before the Court for obtaining remand by the Police or by way of application for grant of bail, and if they are so advised, they can also opt for remedy of discharge at the appropriate stage or quashing of criminal case if there is no legal evidence, whatsoever, to indicate their complicity in the subject crime.
30. In view of the above, it is clear that the consistent view of this Court is that the accused cannot ask for changing the Investigating Agency or to do investigation in a particular manner including for Court monitored Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/5/2025 6:44:45 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:4553 9 WP. No.8050 of 2016 investigation....................."
Thus, it is clear that no one can claim the right of pre-audience prior to registration of FIR. The submission made by counsel for petitioner that since direction was given to lodge FIR without giving any opportunity of hearing, therefore, it is bad in law, is misconceived and is hereby rejected.
Power of this Court under Article 226 of the Constitution of India to adjudicate disputed questions of fact.
14. It is submitted by counsel for petitioner that some of the beneficiaries have given an affidavit that allegations are false. Whether petitioner had taken Rs.15,000/- in the name of constructing Indira Aawas Kutir or not is a disputed question of fact. The amount was deposited in the account of beneficiaries and if after misusing his authority, petitioner has taken back an amount of Rs.15,000/- on the pretext that he would supply the building material and construct Indira Aawas Kutir, then that by itself would be a criminal offence. Merely because some of the beneficiaries have given affidavits would not mean that allegations made by the remaining beneficiaries are also false. Furthermore, it appears that petitioner is involved in winning over the witnesses.
15. Be that whatever it may be.
16. Since allegations made against the petitioner prima facie make out a cognizable offence, therefore, this Court is of considered opinion that no illegality was committed by the Authority by directing the Station House Officer, Police Station Aron to register an FIR.
17. Accordingly, petition fails and is hereby dismissed.
18. The interim order dated 16-12-2016 is hereby vacated.
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19. Office is directed to immediately send a copy of this order to the respondents for necessary information and compliance.
(G.S. Ahluwalia) Judge (and) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/5/2025 6:44:45 PM