Arun Kumar Mishra (State Police ... vs The State Of Madhya Pradesh
2021 Latest Caselaw 712 MP

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                                                          W.P. No.5274/2021



          THE HIGH COURT OF MADHYA PRADESH

                    Writ Petition No.5274/2021
                         Arun Kumar Mishra
                               Versus
                     State of Madhya Pradesh

Jabalpur, Dated: 15.03.2021

          Mr. Sumit Nema, Senior Advocate with Mr. Piyush
Parashar, Advocate and Mr. Ayush Gupta, Advocate for the
petitioner.

          Mr.   Shivam     Hazari,       Panel   Lawyer      for      the
respondents/State.

Heard on the question of admission as well as on interim relief.

2. By the instant petition filed under Article 226 of the Constitution of India, the petitioner is questioning the legality, validity and propriety of the charge-sheet dated 24.02.2021 (Annexure-P/2) issued by respondent No.3.

3. Learned Senior Counsel submits that the charges levelled in the impugned charge-sheet are without any foundation and are based upon a presumed situation. He further submits that the impugned charge-sheet is issued only because instructions have been issued by the Election Commission for initiating disciplinary proceeding against the petitioner. He submits that a raid was conducted by the Income Tax Department along with Economic Offence Wing (EOW) against one Prateek Joshi in which, they got some loose papers containing some unaccounted cash transactions and on the basis of such entries, inference was drawn that the petitioner had handed over an amount of Rs.7.5 crores to Prateek Joshi and the same was the foundation for initiating disciplinary proceeding against the

W.P. No.5274/2021

petitioner. Resultantly, charge-sheet levelling the said charges has been issued to the petitioner. As per learned Senior Counsel such loose papers and the entries made therein cannot be made basis for initiating any action against the person whose name is shown in the entries without there being any final assessment. He further submits that such loose papers and the entries made therein have no evidentiary value unless any corroboratory evidence is found in that regard. He has drawn attention of this Court towards the entries which are the foundation for initiating disciplinary proceeding against the petitioner and submits that it is virtually impossible to ascertain that the entries made in the loose papers make the petitioner guilty. He submits that it is difficult to ascertain whether that entries are related with the petitioner or not. He submits that issuance of charge-sheet at an early stage without there being any final assessment made either by the Income Tax Department or the EOW, is not proper on the part of the respondents/Authorities. He further submits that as per Section 153C of the Income Tax Act, unless the assessment of income of a person other than the person in whose case search has been initiated is called and noticed, such entry cannot be used against such person. He submits that it was a raid conducted in the house of Prateek Joshi and final assessment is yet to be come and the petitioner was neither issued any notice by the Income Tax Department nor by the EOW, therefore, drawing opinion against the petitioner regarding illegal transaction of Rs.7.5 crores is highly improper. He submits that on perusal of the impugned charge-sheet dated 24.02.2021 (Annexure-P/2) it reveals that, as if, the amount of Rs.7.5 crores were found in three bags from the petitioner's house, whereas neither any raid was conducted in the petitioner's house nor any seizure of the said amount was made from him, therefore, issuance of impugned charge-sheet is purely illegal. In support of his contention,

W.P. No.5274/2021

learned Senior Counsel has placed reliance upon various judgments viz Central Bureau of Investigation Vs. V.C. Shukla and others [(1998) 3 SCC 410], Common Cause (A Registered Society) Vs. Union of India [[2017] 77 taxmann.com 245 (SC)], State of Haryana and others Vs. Bhajan Lal and others [1992 Supp (1) SCC 335], Ashwani Kumar Vs. Income Tax Officer [[1991] 39 ITD 183 (Delhi)] and Asstt. Commissioner Income Tax Vs. Narottam Mishra [(2018) 32 ITJ 510].

4. Per contra, learned Panel Lawyer appearing for the respondents/State opposes the prayer made by learned Senior Counsel for the petitioner and submits that it is the Election Commission which has instructed the Authority to take disciplinary action against the petitioner, therefore, the charge- sheet has been issued. He submits that the petitioner can challenge the charge-sheet only on the ground that the same has been issued by an incompetent Authority or on the ground that the charges levelled therein do not constitute any misconduct. In support of his contention, learned Panel Lawyer has placed reliance upon a decision of Secretary, Ministry of Defence and others Vs. Prabhash Chandra Mirdha [(2012) 11 SCC 565].

5. Considering the aforesaid, let notice be issued to the respondents on payment of process fee within a period of seven days by RAD mode.

6. By way of interim measure, it is directed that no further proceeding shall be initiated against the petitioner in pursuance to the impugned charge-sheet dated 24.02.2021 (Annexure-P/2) till next date of hearing.

Certified copy as per rules.

(SANJAY DWIVEDI) JUDGE Devashish

Digitally signed by DEVASHISH MISHRA Date: 2021.03.16 18:58:50 +05'30'