Madhya Pradesh High Court
Dev Dutt Mishra vs The State Of Madhya Pradesh on 12 October, 2020
Author: Sheel Nagu
Bench: Sheel Nagu
1
The High Court of Madhya Pradesh
Mcrc 21921.2020
(Dev Dutt Mishra Vs. State of M.P. and Anr.)
Mcrc.21582.2020
(G.N. Singh Vs. The State of M.P.)
Mcrc.23265.2020
(Surendra Kumar Shrivastava Vs. State of M.P. and others)
Mcrc.3843.2020
(Aditya Singh Tomar Vs. Lok Ayukt Sangathan M.P. & Anr.)
Mcrc.50682.2019
(Bharat Behari Mathur Vs. State of M.P. and others)
Gwalior dated 12.10.2020
ORDER
Sheel Nagu, J.
Shri Anil Khare, Sr. Advocate with Shri V.D.Sharma, learned counsel for petitioner in Mcrc 21921/2020 and Mcrc 21582/2020.
Shri A.K.Chaturvedi, learned counsel for respondent No.1- Lokayukt Organization in Mcrc 21921/2020.
Shri Yash Sharma learned counsel for respondent no.2. in Mcrc 21921/2020.
Shri Aditya Singh Ghuraiya, learned Public Prosecutor for the State in Mcrc 21582/2020.
Shri J.D. Suryavanshi, learned Sr. Advocate with Shri Kunal Suryavanshi, learned counsel for petitioner in Mcrc 23265/2020 and 2 Mcrc 50682/19.
Shri Aditya Singh Ghuraiya, learned Public Prosecutor for the respondent-State in Mcrc 23265/2020 and Mcrc 50682/19.
Shri R.K. Sharma, learned Senior Advocate with Shri Pawan Dwivedi, learned counsel for the petitioner in Mcrc 3843/2020.
Shri A.K.Chaturvedi, learned counsel for respondent No.1- Lokayukt Organization in Mcrc 3843/2020 and Mcrc 50682/19.
Shri Yash Sharma, learned counsel for respondent No.5 in Mcrc 50682/19.
Learned counsel for the rival parties are heard through video conferencing.
1. Since common questions of fact and law are involved, all the five petitions have been taken up for analogous hearing and are being decided by this common order.
2. All these petitions filed invoking inherent powers of this court u/Sec. 482 Cr.P.C. assail the same order dated 22/4/2019 passed by Special Judge (PC Act)/First Additional Sessions Judge, Gwalior (M.P.) in Special Case No 02/2019 arising out of Crime No. 84/17 registered at Special Police Establishment, Gwalior alleging offences punishable u/Ss. 13(1)(d), 13(2) of the Prevention of Corruption Act,1988 (for brevity the PC Act) and Sec. 120-B of I.P.C. 3 2.1 Brief facts of the case for the purpose of disposal of present bunch of petitions are required to be stated first.
2.2 On a complaint of one Rakesh Singh Kushwaha, Lokayukt Organization took cognizance and initiated inquiry under the M.P. Lokayukt Evam Up-Lokayukt Adhiniyam, 1981 in regard to alleged complaint against petitioners herein arising out of the work of repairing/maintenance and widening of the old roads from Motijheel to Tighra Road vide agreement dated 14/11/2011 between Special Area Development Authority (SADA) and contractor M/s. Prestigious Scores Pvt.Ltd. During the course of execution of work in question, the said contractor requested not only for increasing depth of scarifying work but also change in quality of material to be used which led to increase in the estimated cost from originally agreed Rs. 18,90,000/- to Rs. 78,68,240/-. The said proposal of contractor was accepted during the period of posting of petitioners on different positions. It was alleged in the complaint that the said proposal of the contractor led to increase in the estimated cost of the work which was accepted resulting in financial loss to public exchequer. After registration of offences under the PC Act against petitioners and few others, investigation was conducted, but a closure was submitted.
2.3 This closure report was filed before the court of competent 4 criminal jurisdiction which passed the impugned order after hearing the petitioners and prosecution, differing with the closure report and declining to accept the same after finding prima facie case for taking cognizance of the offences punishable 13(1)(d), 13(2) of the PC Act and Sec. 120-B of IPC against petitioners and few other co-accused. However, since the statutory bar u/Sec. 19 of the PC Act came in way, the trial court after recording finding that there is prima facie material enough to take cognizance of the said offences, asked the prosecution to obtain necessary sanction for prosecution from the competent authority.
2.4 The challenge to the said order of learned Special Judge is three folds as enumerated below:-
(i) The FIR bearing Crime No. 84/17 does not disclose prima facie case as alleged against petitioners.
(ii) That the impugned order dated 22/4/19 is passed by learned Special Judge exceeding it's jurisdictional purview in as much as rendering a finding that the offences alleged are worth taking cognizance of despite the Investigating Agency filing closure report thereby encroaching upon jurisdiction of competent authority to decide the question of grant or refuse to grant sanction for prosecution.
(iii) By relying upon Sec. 10 of M.P. Lokayukt Evam 5 Up-Lokayukt Adhiniyam, 1981, the contention of petitioner is that while conducting inquiry into foundational complaint the Lokayukt Organization have not afforded opportunity of being heard to petitioners thereby vitiating the inquiry and its subsequent action, i.e. FIR and the special case.
2.5 Taking up the first ground as enumerated above, learned counsel for petitioners has taken this court to the foundational allegations made against petitioners in depth in a valiant attempt to demonstrate that the basic ingredients constituting the offences alleged are not made out and therefore the FIR and so also the impugned order is bad in law. More so, findings arrived at in the impugned order are perverse for being unsupported by any evidence.
2.6 A perusal of impugned order shows that the trial Court found sufficient materials for taking cognizance, as the petitioners had illegally permitted making of payment to the contractor four times the agreed price and more so as against the amount paid to the contractor only meager amount was recovered from contractor, which shows misuse of official position on the part of petitioners. The cognizance has been taken on the basis of report received from Inspector Rajiv Gupta, which was called due to issue being technical. Inspector Rajiv Gupta has observed in his enquiry report that as per MP PWD SOR (Item No. 3.9) dated 6 15.4.2009 scarifying the existing course, Schedule Item No.2, i.e., only 50 mm thick, there is no provision as to performance of the aforesaid work in layers, and yet the petitioners permitted payment for four layers beyond the prescribed rates and when the notice was issued to the contractor, he preferred an appeal before the President, SADA, meanwhile the petitioners stopped payment of Rs.10.00 lacs but remaining amount had been disbursed in favour of the contractor. Besides, contrary to the terms and conditions of the agreement, the petitioners permitted loss caused to be set off against the earnest money/security money deposited by contractor prior to completion of work, which further reflects malafide on the part of petitioners. 2.7 Thus, on the anvil of the above analysis the trial Court has rightly found sufficient grounds for taking cognizance. 2.8 After going through the foundational allegations against petitioners it is seen from the impugned order dated 22/4/2019 that learned Special Judge has taken pains, not only to go into the factual allegations but has also assigned cogent reasons for taking a contrary view and finding the offences alleged to be worth taking cognizance of.
2.9 Thus, as regards first ground that foundational ingredients of the offences alleged are not made out, this court has already rendered it's 7 finding that the offences alleged appear to be made out on prima facie assessment.
2.10 As regards second ground that learned Special Judge exceeded it's jurisdictional limits by recording finding of alleged offences worthy of taking cognizance has influenced the mind of competent authority u/Sec. 19 of the PC Act, which is yet to take a decision on question of grant/refusal qua sanction for prosecution, learned counsel for petitioners relied upon decisions on State through CBI Vs. Raj Kumar Jain (1998) 6 SCC 551, Sanjaysingh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and Others (2015) 3 SCC 123, Arun Kumar Aggarwal Vs. State of M.P. (2014)13 SCC 707, Vasanti Dubey Vs. State of Madhya Pradesh (2012) 2 SCC 731, Mohd. Iqbal Ahmad Vs. State of Andhra Pradesh (1979) 4 SCC 172, Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622, Abhinandan Jha and Others Vs. Dinesh Mishra (AIR 1968 SC 117) and Lalita Kumari Vs. Govt. of U.P. & others (2014) 2 SCC 1. 2.11 Learned counsel for prosecution, on the other hand has relied upon decision in Arun Kumar Aggarwal Vs. State of M.P. (2014) 13 SCC 707.
2.12 As noted above, a plethora of decisions of Apex court and this court were cited by learned counsel for petitioners but this court need 8 not go into prolixity of these citations for the simple reason that Apex Court in a case arising from this very High Court and attended with similar circumstances where the challenge made was also on similar ground as raised herein, has already taken a view and laid down law in Arun Kumar Aggarwal Vs. State of Madhya Pradesh (2014) 13 SCC
707. Relevant paras 2 to 8 and 13 to 40 of the said judgment are reproduced below for ready reference and convenience :-
"2. The brief factual matrix relating to this appeal is as follows:The respondent no. 2, Shri. Raghav Chandra, who is a Commissioner of M.P. Housing Board, Bhopal along with respondent no. 3, Shri. Shahjad Khan, posted as the then Collector, Katni, Jabalpur and respondent no. 4, Shri. Ram Meshram, posted as the Land Acquisition Officer, M.P. Housing Board, Bhopal, whilst, discharging their functions, had allegedly entered into conspiracy and made a secret plot with Shri. B.D. Gautam, the Director of Olphert Company and, subsequently, purchased the land belonging to Olphert Company at higher rates for the M.P. Housing Board, thereby, caused a financial loss of over `4 Crores to the Government.
3. The appellant reported this alleged transaction of purchase of land by the M.P. Housing Board, alleging financial loss to the Government, to the Lokayukta, Bhopal. Subsequently, the Special Police Establishment (Lokayukta), Jabalpur (hereinafter referred to as "the Lokayukta Police") registered an FIR No. 165 of 2002 against accused respondent nos. 2 to 4, as the alleged act or conduct of the accused respondents, all working as Government Servants, amounts to an offence under Section 13 (1-d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the PCA") and Section 120-B of the Indian Penal Code (hereinafter referred to as "the IPC"). Accordingly a Criminal Case No. 165 of 2002 was registered against respondent nos. 2 to 4 in the Court of learned Special Judge. However, the sanction of the Government was necessary as mandated by Section 19 of the PCA in order to prosecute the said respondent-accused.9
4. Acting upon the complaint of the appellant, the Lokayukta Police, after conducting the investigation, had exonerated respondent nos. 2 to 4 of all the charges leveled against them and submitted final closure report, under Section 169 of the Criminal Procedure Code (hereinafter referred to as "the Cr. P.C."), to the learned Special Judge, Katni as no case had been made out to prosecute respondents. Thereafter, the learned Special Judge, Katni after hearing the respondents, appreciating the evidence on record and perusing the case diary, had rejected the closure report vide his Order dated 26.4.2005.
5. The operative portion of the order dated 26.4.2005 passed by the learned Special Judge is extracted below:
"31. In this way from above record produced, even prima facie, it is evident that the accused had made secrete plot (durabhi sandhi) with Shri B.D. Gautam the Director of Olphert Company with conspiracy and purchased land of Olphert Company on higher rate and caused financial loss over four crores to the Government which there are sufficient grounds for taking cognizance against the accused persons.
32. Accused person Shri Raghav Chandra is posted as Commissioner of M.P. Housing Board and Shri Ram Meshram is posted as Land Acquiring Officer in M.P. Housing Board and Shri Shahjaad Khan while remaining posted as Collector, all above accused persons working as Government servant, while discharging their government duties, committed above crime- under section 19 of Anti Corruption Act 1988, it is necessary to obtain sanction to prosecute Government Servant U/S 13 of Anti-Corruption Act. Therefore matter may be taken up seeking necessary sanction to prosecute the accused persons Raghav Chandra, Shri Ram Meshram and Shahjaad Khan to prosecute them under Section 13 (1-d), 13 (2) Anti Corruption Act and under Section 12.
6. Aggrieved by the above observation, respondent nos. 2 to 4 preferred Criminal Revision Petitions under Section 482 of the Cr.P.C. before the High Court. The High Court allowed the revision petitions and quashed the Order dated 26.4.2005 of the learned Special Judge on the ground that the Order of the learned Special Judge is illegal and without jurisdiction, in view of the decision of this Court in Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117, as the Magistrate cannot impinge upon the 10 jurisdiction of the police by directing them to change their opinion when the closure report had been submitted by the police under Section 169 of the Cr.P.C. The reliance is also placed on the observation made by this Court in the case of Mansukh Lal Vithaldas Chauhan v. State of Gujarat AIR 1997 SC 3400 wherein it is observed that:
"19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority of the facts of the case as also the material and evidence collected during investigation it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. It is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."
7. Being aggrieved, the appellant is before us in this appeal.
8. The issue involved in the present appeal for our consideration is: Whether the High Court is justified in treating the operative portion of the Order of the learned Special Judge as a direction issued to the sanctioning authority to sanction the prosecution of the Respondent 2 to 4 accused.
13. We have heard the learned counsel for the parties before us. The short point in issue before us is based on the nature of the Order passed by the learned Special Judge whether it amounts to a direction issued by the Court to the concerned authority or mere observation of the Court.
14 We will first discuss the nature and scope of the expression `direction' issued by the Court. This Court in Rameshwar Bhartia v. The State of Assam, 1953 SCR 126 whilst distinguishing the 11 expression `Sanction' from the `Direction', for the purpose of initiating the prosecution has held:
"11...... But where a prosecution is directed, it means that the authority who gives the direction is satisfied in his own mind that the case must be initiated. Sanction is in the nature of a permission, while a direction is in the nature of a command."
15. In ITO v. Murlidhar Bhagwan Das, Lakhimpur kheri, (1964) 6 SCR 411, this Court has observed that the expression "direction" cannot be construed in vacuum, but must be collated to the directions which the Assistant Appellate Commissioner can give under Section 31 of the Indian Income Tax Act, 1922.
16. This Court in Rajinder Nath v. CIT, (1979) 4 SCC 282, while considering the meaning of expression `finding' and `direction', occurring in Section 153(3)(ii) of the Income Tax Act, 1961, has held:
"11. ... As regards the expression "direction"
in Section 153(3)(ii) of the Act, it is now well settled that it must be an express direction necessary for the disposal of the case before the authority or court. It must also be a direction which the authority or court is empowered to give while deciding the case before it. The expressions "finding" and "direction" in Section 153(3)(ii) of the Act must be accordingly confined." (Emphasis supplied).
17. In Kanhiya Lal Omar v. R.K. Trivedi & Ors., (1985) 4 SCC 628, this Court has observed that "17. A direction may mean an order issued to a particular individual or a precept which many may have to follow. It may be a specific or a general order."
18. In Giani Devender Singh v. Union of India, (1995) 1 SCC 391, this Court, whilst considering the direction issued by the High Court in a Public Interest Litigation, has observed that the directions should not be vague, sweeping or affected by sarcasm which are not capable of being implemented. It should be specific, just and proper in the facts and circumstances of the case. This Court further held:
"10. It appears to us that when the High Court was not in a position to precisely discern what was the complaint alleged by the petitioner and when the High Court was of the view that the prayer made by the petitioner was absurd and it also held that the officers who were alleged to have been 12 carrying on nefarious activities were more imaginary than real, the direction in general and sweeping terms to sack erring officers (whomsoever they may be) and overhaul the administration by recruiting only conscientious and devoted people like the petitioner in order to satisfy the vanity of the petitioner, should not have been made. If the High Court intends to pass an order on an application presented before it by treating it as a public interest litigation, the High Court must precisely indicate the allegations or the statements contained in such petition relating to public interest litigation and should indicate how public interest was involved and only after ascertaining the correctness of the allegation, should give specific direction as may deem just and proper in the facts of the case.
11. It appears to us that the application was disposed of by the Division Bench of Madhya Pradesh High Court in a lighter vein and the order dated 27-2-1992 is couched in veiled sarcasm. Such course of action, to say the least, is not desirable and the High Court should not have issued mandate in general and sweeping terms which were not intended to be implemented and were not capable of being implemented because of utter vagueness of the mandate and of its inherent absurdity."
(Emphasis supplied)
19. The Blacks Law Dictionary (9th ed. 2009) defines the term `Direction' as an order; an instruction on how to proceed.
20. The meaning of expression "Direction" has been discussed in Corpus Juris Secundum, Vol. 26A, at pg. 955-956 as thus:
"The word "direction" is of common usage, and is defined as meaning the act of governing, ordering, or ruling; the act of directing, authority to direct as circumstances may require; guidance; management; superintendence; "prescription;" also a command, an instruction, an order, an order prescribed, either verbally or written, or indicated by acts; that which is imposed by directing, a guiding or authoritative instruction; information as to method."
21. According to P. Ramanatha Aiyar, Advanced Law Lexicon (3rd ed. 2005) the word `Direction' means: address of letter, order or instruction as to what one has to do. A direction may serve to 13 direct to places as well as to persons. Direction contains most of instruction in it and should be followed. It is necessary to direct those who are unable to act for themselves. Directions given to servants must be clear, simple and precise.
22. According to the Words and Phrases, Permanent Edition, Vol. 12A, the term `Direction' means a guiding or authoritative instruction, prescription, order, command.
23. To sum up, the direction issued by the Court is in the nature of a command or authoritative instruction which contemplates the performance of certain duty or act by a person upon whom it has been issued. The direction should be specific, simple, clear and just and proper depending upon the facts and circumstances of the case but it should not be vague or sweeping.
24. At this stage, it is pertinent to consider the nature and scope of a mere observation or obiter dictum in the Order of the Court. The expression obiter dicta or dicta has been discussed in American Jurisprudence 2d, Vol. 20, at pg. 437 as thus:
"74. -Dicta Ordinarily, a court will decide only the questions necessary for determining the particular case presented. But once a court acquires jurisdiction, all material questions are open for its decision; it may properly decided all questions so involved, even though it is not absolutely essential to the result that all should be decided. It may, for instance, determine the question of the constitutionality of a statute, although it is not absolutely necessary to the disposition of the case, if the issue of constitutionality is involved in the suit and its settlement is of public importance. An expression in an opinion which is not necessary to support the decision reached by the court is dictum or obiter dictum.
"Dictum" or "obiter dictum: is distinguished from the "holding of the court in that the so- called "law of the case" does not extend to mere dicta, and mere dicta are not binding under the doctrine of stare decisis.
As applied to a particular opinion, the question of whether or not a certain part thereof is or is not a mere dictum is sometimes a matter of argument. And while the terms "dictum" and "obiter dictum" are generally used synonymously with regard to expressions in an opinion which are not necessary to support the decision, in connection with the doctrine of stare decisis, a distinction has been drawn between mere obiter and "judicial dicta," the latter being an expression of opinion on a point 14 deliberately passed upon by the court."
(Emphasis supplied).
Further at pg. 525 and 526, the effect of dictum has been discussed:
"190. Decision on legal point; effect of dictum .. In applying the doctrine of stare decisis, a distinction is made between a holding and a dictum. Generally stare decisis does not attach to such parts of an opinion of a court which are mere dicta. The reason for distinguishing a dictum from a holding has been said to be that a question actually before the court and decided by it is investigated with care and considered in its full extent, whereas other principles, although considered in their relation to the case decided, are seldom completely investigated as to their possible bearing on other cases. Nevertheless courts have sometimes given dicta the same effect as holdings, particularly where "judicial dicta" as distinguished from "obiter dicta" are involved."
25. According to P. Ramanatha Aiyar, Advanced Law Lexicon (3rd ed. 2005), the expression "observation" means a view, reflection; remark; statement; observed truth or facts; remarks in speech or writing in reference to something observed.
26. The Wharton's Law Lexicon (14th Ed. 1993) defines term `obiter dictum' as an opinion not necessary to a judgment; an observation as to the law made by a judge in the course of a case, but not necessary to its decision, and therefore of no binding effect; often called as obiter dictum, ; a remark by the way.
27. The Blacks Law Dictionary, (9th ed, 2009) defines the term `obiter dictum' as: "Obiter dictum-A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). -- Often shortened to dictum or, less commonly, obiter.
"Strictly speaking an `obiter dictum' is a remark made or opinion expressed by a judge, in his decision upon a cause, `by the way' -- that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the judge or court merely by way of illustration, argument, analogy, or suggestion.... In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as 15 `dicta,' or `obiter dicta,' these two terms being used interchangeably."
28 The Word and Phrases, Permanent Edition, Vol. 29 defines the expression `obiter dicta' or `dicta' thus:
"Dicta are opinions of a judge which do not embody the resolution or determination of the court, and made without argument or full consideration of the point, are not the professed deliberate determinations of the judge himself; obiter dicta are opinions uttered by the way, not upon the point or question pending, as if turning aside for the time from the main topic of the case to collateral subjects; It is mere observation by a judge on a legal question suggested by the case before him, but not arising in such a manner as to require decision by him; "Obiter dictum" is made as argument or illustration, as pertinent to other cases as to the one on hand, and which may enlighten or convince, but which in no sense are a part of the judgment in the particular issue, not binding as a precedent, but entitled to receive the respect due to the opinion of the judge who utters them; Discussion in an opinion of principles of law which are not pertinent, relevant, or essential to determination of issues before court is "obiter dictum"
29. The concept of "Dicta" has also been considered in Corpus Juris Secundum, Vol. 21, at pg. 309-12 as thus:
"190. Dicta a. In General A Dictum is an opinion expressed by a court, but which, not being necessarily involved in the case, lacks the force of an adjudication; an opinion expressed by a judge on a point not necessarily arising in the case; a statement or holding in an opinion not responsive to any issue and noty necessary to the decision of the case; an opinion expressed on a point in which the judicial mind is not directed to the precise question necessary to be determined to fix the rights of the parties; or an opinion of a judge which does not embody the resolution or determination of the court, and made without argument, or full consideration of the point, not the professed deliberate determination of the judge himself. The term "dictum" is generally used as an abbreviation of "obiter dictum" which means a remark or opinion uttered by the way.16
Such an expression or opinion, as a general rule, is not binding as authority or precedent within the stare decisis rule, even on courts inferior to the court from which such expression emanated, no matter how often it may be repeated. This general rule is particularly applicable where there are prior decisions to the contrary of the statement regarded as dictum; where the statement is declared, on rehearing, to be dictum; where the dictum is on a question which the court expressly states that it does not decide; or where it is contrary to statute and would produce an inequitable result. It has also been held that a dictum is not the "law of the case," nor res judicata."
30. The concept of "Dicta" has been discussed in Halsbury's Laws of England, Fourth Edition (Reissue), Vol. 26, para. 574 as thus:
"574. Dicta. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that it is unnecessary for the purpose in hand are generally termed "dicta".
They have no binding authority on another court, although they may have some persuasive efficacy. Mere passing remarks of a judge are known as "obiter dicta", whilst considered enunciations of the judge's opinion on a point not arising for decision, and so not part of the ratio decidendi, have been termed "judicial dicta". A third type of dictum may consist in a statement by a judge as to what has been done in other cases which have not been reported. ... Practice notes, being directions given without argument, do not have binding judicial effect. Interlocutory observations by members of a court during argument, while of persuasive weight, are not judicial pronouncements and do not decide anything."
31. In MCD v. Gurnam Kaur, (1989) 1 SCC 101 and Divisional Controller, KSRTC v. Mahadeva Shetty, (2003) 7 SCC 197, this Court has observed that "12....Mere casual expressions carry no weight at all. Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement, having the weight of authority."
32. In State of Haryana v. Ranbir, (2006) 5 SCC 167, this Court has discussed the concept of the obiter dictum thus:
"13 ....A decision, it is well settled, is an authority for what it decides and not what can logically be deduced therefrom. The 17 distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a viewpoint or sentiments which has no binding effect. See ADM, Jabalpur v. Shivakant Shukla. It is also well settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. (See Divisional Controller, KSRTC v. Mahadeva Shetty)"
33. In Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555, this Court has held:
"53......Thus, observations of the Court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents."
34. In view of above, it is well settled that obiter dictum is a mere observation or remark made by the court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment.
35. In the facts and circumstances of the present case, we are of the opinion that the refusal of the learned Special Judge, vide its Order dated 26.4.2005, to accept the final closure report submitted by Lokayukta Police is the only ratio decidendi of the Order. The other part of the Order which deals with the initiation of Challan proceedings cannot be treated as the direction issued by the learned Special Judge.
36. The relevant portion of the Order of the learned Special Judge dealing with Challan Proceeding reads as :
"Therefore matter may be taken up seeking necessary sanction to prosecute the accused persons Raghav Chandra, Shri 18 Ram Meshram and Shahjaad Khan to prosecute them under Section 13 (1-d), 13 (2) Anti Corruption Act and under Section 120-B I.P.C and for necessary further action, case be registered in the criminal case diary."
37. The wordings of this Order clearly suggest that it is not in the nature of the command or authoritative instruction. This Order is also not specific or clear in order to direct or address any authority or body to perform any act or duty. Therefore, by no stretch of imagination, this Order can be considered or treated as the direction issued by the learned Special Judge. The wholistic reading of this Order leads to only one conclusion, that is, it is in the nature of `Obiter Dictum' or mere passing remark made by the learned Special Judge, which only amounts to expression of his personal view. Therefore, this portion of the Order dealing with Challan proceeding, is neither relevant, pertinent nor essential, while deciding the actual issues which were before the learned Special Judge and hence, cannot be treated as the part of the Judgment of the learned Special Judge.
38. In the light of the above discussion, we are of the opinion that, the portion of the Order of the learned Special Judge which deals with the Challan proceedings is a mere observation or remark made by way of aside. In view of this, the High Court had grossly erred in considering and treating this mere observation of the learned Special Judge as the direction of the Court. Therefore, there was no occasion for the High Court to interfere with the Order of the learned Special Judge.
39. In the result, the appeals are allowed. The impugned Order and Judgment of the High Court in Criminal Revision No. 821 of 2005, Criminal Revision Petition No. 966 of 2005 and Criminal Case No. 3403 of 2005 dated 22.4.2009 is set aside. We restore the Order of the learned Special Judge dated 26.4.2005.
40. We direct the respondents to comply with the order passed by the Trial Court within two months from this date." 2.13 In the aforesaid case of Arun Kumar Agarwal (supra) the Apex court was faced with similar factual matrix and legal ground. In Arun Kumar Agarwal (s) where complaint was made to Lokayukt 19 Organization, followed by investigation and culminating in submission of closure report u/S. 169 Cr.P.C. before the Special Judge, Katni, the Special Judge Katni after appreciating the evidence placed on record and perusing the case-diary alongwith closure report, recorded a finding that there is sufficient material for taking cognizance of the offences alleged under the PC Act against accused therein. However, the Special Judge refrained from taking cognizance in view of statutory bar u/Sec. 19 of the PC Act and therefore directed that matter be taken up for seeking necessary sanction to prosecute accused therein. This order of Special Judge was assailed before the High Court and the High court allowed the petition by quashing the order of Special Judge Katni by relying upon decisions in Abhinandan Jha & others Vs. Dinesh Mishra (AIR 1968 SC 117) & Mansukh Lal Vs. State of Gujrat (AIR 1997 SC 3400) and thus holding that the trial court cannot impinge upon jurisdiction of police by directing them to change their opinion when closure report is submitted u/Sec. 169 Cr.P.C. Being aggrieved, the complainant preferred appeal before the Apex court where the question which arose for consideration was whether the High Court in the given facts & circumstances was justified in treating the operative portion of the order of Special Judge Katni as a direction for obtaining sanction for prosecution qua accused therein for whom closure report 20 was filed. The Apex court after discussing the fundamental and conceptual difference between obiter dicta and ratio decidendi held that the direction in regard to obtaining sanction for prosecution from appointing authority by the Special Judge Katni was a mere observation or remark, which could not form part of the finding on merits in regard to cognizance. Thus, the Apex court in the case of Arun Kumar Aggarwal (s) upturned the order of the High Court and upheld the order of learned Special Judge, Katni.
2.14 The factual situation in the present case is very much similar to the factual scenario attending the case of Arun Kumar Aggarwal (s). As such, this court has no hesitation to hold that this ground of the impugned order encroaching upon the field exclusively reserved for appointing authority as regards sanction for prosecution, is of no avail to the petitioners. The direction to the prosecution for obtaining appropriate sanction for prosecution of petitioners is a mere observation (obiter) which cannot be treated as direction emanating from the ratio of the case in Arun Kumar Aggarwal (s) and also that the same casts no pressure or obligation upon appointing authority to take independent and unbiased decision as regards grant/refusal to grant sanction for prosecution u/s. 19 of the PC Act..
3. As regards third ground of violation of Sec. 10 of 1981 21 Adhiniyam, it is seen that learned counsel for petitioners has relied upon single bench decision of this court at Indore Bench in Guruji Sewas Nyas Indore Vs. State of M.P. & others 2009(4) MPLJ 363 to contend that the petitioners were not afforded opportunity of being heard by Lokayukt Organization during the process of conduction of inquiry into the foundational complaint filed by complainant against petitioners. Suffice it to say that the said single bench decision of this court in Guruji Sewas Nyas (supra) fades into insignificance in view of subsequent Division Bench decision of this court in Dr. Rajesh Rajoriya Vs. State of M.P. & others 2011(3) MPHT 44 (DB) where it has been held that breach of Sec. 10 of 1981 Adhiniyam cannot vitiate the inquiry and the subsequent prosecution. Thus, the said third ground does not hold any water.
3.1 Some other decisions of Apex Court relied upon by learned counsel for petitioners are not being discussed since latest view of the Apex court in Arun Kumar Aggarwal (supra) has been rendered after considering majority of the earlier cases on the issue.
4. Thus, the trial Court has neither exceeded its jurisdiction by finding offences worthy of cognizance, nor acted unlawfully by directing prosecution to take appropriate steps qua sanction.
5. In the conspectus of the above discussion, this court declines 22 interference and dismisses all petitions bearing Mcrc 21921.2020 (Dev Dutt Mishra Vs. State of M.P. and Anr.) Mcrc.21582.2020 (G.N. Singh Vs. The State of M.P.) Mcrc.23265.2020 (Surendra Kumar Shrivastava Vs. State of M.P. and others) Mcrc.3843.2020 (Aditya Singh Tomar Vs. Lok Ayukt Sangathan M.P. & Anr.) Mcrc.50682.2019 (Bharat Behari Mathur Vs. State of M.P. and others) in limine.
6. Let a copy of this order be forwarded to the concerned trial court for doing the needful.
(Sheel Nagu) (Rajeev Kumar Shrivastava)
Judge Judge
(Bu)
DHANAN
Digitally signed by DHANANJAY
BUCHAKE
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH
JAY GWALIOR, ou=HIGH COURT OF
MADHYA PRADESH BENCH
GWALIOR, postalCode=474001,
BUCHAK
st=Madhya Pradesh,
2.5.4.20=6489e9ca230b3031a4b
44a621934281f589875c02fb2a2
0e4220aebc8a3ba7ec,
E cn=DHANANJAY BUCHAKE
Date: 2020.10.13 15:29:05
+05'30'