Madhya Pradesh High Court
The State Of Madhya Pradesh vs Shri Shivendra Singh on 17 March, 2021
Author: Atul Sreedharan
CRR No.2339/2018
1
HIGH COURT OF MADHYA PRADESH : PRINCIPAL SEAT AT JABALPUR
1 Case Number Cr.R.No. 2339/2018
2 Parties Name State of M.P. Vs. Shri Shivendra Singh and 6 others
3 Date of Order 17/03/2021
4 Bench Constituted of Hon. Shri Justice Atul Sreedharan &
Hon. Shri Justice J.P. Gupta
5 Judgment delivered by Hon. Shri Justice J.P. Gupta
6 Whether approved for YES
reporting
7 Name of the counsel for Shri Satyam Agrawal, learned counsel for the
the parties applicant/ Lokayukta.
Shri Anil Khare, learned Senior Advocate with Shri
Priyank Agrawal, Advocate for the respondents.
8 Law laid down & (i) If Investigation Agency files the closure report,
Significant paragraphs the Magistrate or the Special Judge has jurisdiction to
accept it or reject it and if the material is not sufficient
number
and looking to the facts and circumstances of the case
further investigation is desirable to reach on a
prudent conclusion then the investigating agency can
be directed to make further investigation or the
complainant may be directed to produce material in
support of the complaint. In a case when the
Magistrate / the Special Judge is of the opinion that
the cognizance can be taken but if there is need of the
sanction order for prosecution then cognizance
cannot be taken and the matter would be left on the
investigation agency to take action in accordance with
law for the purpose of getting sanction for
prosecution. In the present case, having rejected the
prayer with regard to acceptance of the closure
report, the learned Special Judge has observed that in
this matter sanction for prosecution will be required,
therefore, the material be placed before the
sanctioning authority for consideration. Hence, there
is no mandate or command to the sanctioning
authority to grant sanction for prosecution and it is
only obiter dicta. It does not amount to direction to
sanction authority or to file the charge sheet. This
aspect has been considered by Hon'ble the Apex
Court in the case of Arun Kumar Aggrawal vs. State of
M.P., and ors (2014) 13 SCC 707 para 35 to 38.
(ii) Undoubtedly, at the stage of consideration, the
prayer for acceptance of the closure report, very
lengthy and analytic order is not required but if the
matter is sent back with the direction for further
investigation or rejection of the prayer for acceptance
of closure report, the order must have such contents
which indicate shortcoming of the investigation
including suggestions and guidelines with regard to
further investigation, if needed, when the further
investigation is not required and the closure report is
not acceptable and the prayer is rejected, the order
must indicate in brief the material, available with the
report, supporting the allegations and the reasons
with regard to contrary opinion to the Investigating
officer. Merely saying that prima facie there is
suspicion of the commission of the crime is not
sufficient to reject the prayer for the closure report
filed by the investigating agency. Brief, indicative and
speaking order is required to strike balance and to
ensure justice with the investigating agency and
accused persons. The requirement of reasoning in
judicial order has been emphasised by Hon'ble the
Apex Court in the case of Assistant Commissioner,
Commercial Tax Department, Works Contract and
Leasing, Kota Vs. Shukla and brothers, (2010) 4 SCC
785.
(ATUL SREEDHARAN) (J.P. GUPTA)
JUDGE JUDGE
CRR No.2339/2018
3
HIGH COURT OF MADHYA PRADESH : JABALPUR.
(DB : Hon'ble Shri Justice Atul Sreedharan
Hon'ble Shri Justice J.P. Gupta)
Criminal Revision No. 2339/2018
The State of M.P.
Vs.
Shri Shivendra Singh and 6 others
Shri Satyam Agrawal, learned counsel for the applicant /
Lokayukta Organization.
Shri Anil Khare, learned Senior Advocate with Shri Priyank
Agrawal, Advocate for the respondents / accused.
---------------------------------------------------------------------------
Whether approved for reporting (Yes/No).
ORDER
(17.03.2021)
Per J.P. Gupta, J.
This criminal revision under Section 397/401 of
the Code of Criminal Procedure has been preferred by the
applicant Special Police Establishment, Lokayukt
Organization, against the order dated 19.1.2018 passed by
the trial Court / Special Judge, Lokayukt, Jabalpur, under
the Prevention of Corruption Act, whereby the prayer for
acceptance of the closure report filed after completion of the
investigation in connection with Crime No. 137/11 registered
against the respondents under Sections 13 (1) (d) read with
Section 13 (2) of the Prevention of Corruption Act, 1988 by
the Special Police Establishment, Lokayukt Organization,
Jabalpur, has been disallowed and Special Police
Establishment Lokayukt has been directed to place all the
original documents / records and the material collected
during the investigation before the Sanctioning authority for
obtaining sanction for prosecution of the respondents no. 1 to
5 who were posted at Jabalpur Development Authority,
Jabalpur and discharging their duties in their respective
capacity as public servants.
2. The facts of the case, in brief, are that respondents
no. 1 to 5 were posted at Jabalpur Development Authority,
Jabalpur and were discharging their duties in their respective
capacity being public servants and by misusing their power
as public servants unduly favoured respondents no. 6 and 7
in connection with granting property of the JDA known as
Cafeteria situated at Civic Centre, Marhatal, Jabalpur. It is
alleged that earlier this property was given to respondents
no. 6 and 7 on rent directly without following procedure of
auction for the purpose of getting maximum rent and
thereafter they sold this property to respondents no. 6 and 7
directly without inviting tender for getting maximum price of
the property and departmental valuation of the property was
done below the actual market value to provide undue benefit
to respondents no. 6 and 7 and also given permission for
change of use of the land and granted permission for division
of the property in favour of respondents no. 6 and 7
separately and construction was also allowed without getting
lay out and map and in this regard, FIR as crime no. 137/11
was registered by Lokayukt Police Jabalpur and after
investigation, investigating officer arrived at the conclusion
that no irregularity or illegality has been committed, in other
words, no power has been misused and no undue benefit
has been provided to respondents no. 6 and 7 as the
property was given on rent directly as per prevailing practice
in the JDA and the property was sold on real market value at
the relevant time and no illegality has been committed by
CRR No.2339/2018
allowing division of the property and by allowing permission
for further construction all due formalities were followed.
Apart from it, the aforesaid sale was set-aside by a Division
Bench of this court in W.P.No.3151/2011 and
W.P.No.7111/2011 by common order dated 26.9.2012 and
further proceeding for selling the aforesaid property is going
on. Therefore, aforesaid officers of the JDA cannot be blamed
that they were indulging to provide undue benefit to
respondents no. 6 and 7 or was favouring with ulterior
motive. Hence, no offence is made out. In the aforesaid
background, closure report was filed.
3. In the impugned order, learned Special Judge has
expressed the view that the aforesaid public servants with
the connivance of the private respondents no. 6 and 7 divided
the property in two parts to give them on rent separately and
also issued no objection certificate to get bank loan and did
not determine lease rent as per the lease deed and stamp
duty and registration fees were not paid, therefore, the act of
respondents no. 1 to 5 appeared to be facilitating
respondents no. 6 and 7 to get unduly benefit, therefore, the
act of the respondents prima facie appeared to be seriously
doubtfulness. Therefore, closure report cannot be accepted
and the matter should be placed before the sanctioning
authority for granting sanction for the prosecution.
4. On behalf of the applicant Investigating agency the
order impugned has been challenged on the ground that
learned trial court has exceeded its jurisdiction as the court
has no power to direct the investigating agency to file charge
sheet or to place the matter before the sanctioning authority
as it curtails the power of them which requires to be
exercised independently. Further contended that the reason
assigned by the learned trial court is irrelevant and
apparently the facts and circumstances and material which
are relevant in this case have not been considered at all and
the reason given has no meaning with regard to justification
of the rejection order. Hence, the impugned order is liable to
be set-aside.
5. In the present case, so far as the first contention is
concerned, it has no substance. Neither the Special Judge
has directed to file charge sheet nor has given mandate to the
sanctioning authority to grant sanction for prosecution. If
Investigation Agency files the closure report, the Magistrate or
the Special Judge has jurisdiction to accept it or reject it and
if the material is not sufficient and looking to the facts and
circumstances of the case further investigation is desirable to
reach on a prudent conclusion then the investigating agency
can be directed to make further investigation or the
complainant may be directed to produce material in support
of the complaint. In a case when the Magistrate / the Special
Judge is of the opinion that the cognizance can be taken but
if there is need of the sanction order for prosecution then
cognizance cannot be taken and the matter would be left on
the investigation agency to take action in accordance with law
for the purpose of getting sanction for prosecution.
6. In the present case, having rejected the prayer with
regard to acceptance of the closure report, the learned Special
Judge has observed that in this matter sanction for
prosecution will be required, therefore, the material be placed
before the sanctioning authority for consideration. Hence,
there is no mandate or command to the sanctioning authority
to grant sanction for prosecution and it is only obiter dicta. It
does not amount to direction to sanction authority or to file
CRR No.2339/2018
the charge sheet. This aspect has been considered by Hon'ble
the Apex Court in the case of Arun Kumar Aggrawal vs.
State of M.P., and ors (2014) 13 SCC 707 para 35 to 38 is
as under :-
35. In the facts and circumstances of the
present case, we are of the opinion that the
refusal of the learned Special Judge, vide his
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 under :
"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) of the
Prevention of Corruption Act, 1988 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 holistic 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".
7. The aforesaid judgment of Hon'ble the Apex Court
squarely covers the first contention of the learned counsel for
the applicant- Lokayukt. Therefore, it is held that learned
Special Judge has not committed any jurisdictional error
directing the investigating authority accordingly.
8. Here, it would be worth mentioning for guidance of
the Magistrate / the Special Judge that in case they found
that the material is sufficient to take cognizance, they may
reject the prayer for acceptance of the closure report without
observing that the matter be placed before the sanctioning
authority for granting sanction to prosecute the Government
servant. They may observe that the investigating agency shall
proceed further in accordance with law to avoid challenging
the aforesaid observation. If the matter is dealt with in this
manner, the order cannot be assailed on the ground that it
curtails the power of investigating agency as well as
sanctioning authority. On passing the order in such manner,
the impact will be that the investigating agency has to place
the matter before the sanctioning authority in furtherance to
the order of trial court / the Special Judge and the authority
has to examine the matter independently without being
CRR No.2339/2018
influenced by any observation of the Special Judge.
9. So far as the second contention is concerned, on
perusal of the impugned order, record and the reasons
mentioned by the trial court do not impress this court as
some are not much relevant to justify the order of the trial
court. However, prima facie it appears that the investigating
agency has framed its opinion contrary to the material
available on record. It appears that the investigating agency
has given much importance to the circumstances that the
transaction of the property made in favour of respondents
no. 6 and 7 has been set-aside by a Division Bench of this
court vide order dated 26.9.2012 in W.P.No. 3151/2011 and
W.P. No.7111/2011; while in the order this court has pointed
out various serious irregularities and illegalities committed by
the aforesaid officers of the JDA to transfer property in favour
of respondents no. 6 and 7. Here it would be appropriate to
reproduce the relevant paras of the judgment :-
10. The authority has been constituted
for making better provisions for
preparation and development of plans and
to issue town planning. The Authority is
under an obligation to ensure that it
functions according to the provisions of
the Act and the Rules. The property in
question is the property of the public,
which has to be dealt with in a fair,
transparent and rational manner. In the
instant case, admitted, no attempt was
made by the authority to ascertain the
market value either by holding a public
auction or by inviting tenders. The
market value of the property in question
could have been ascertain by the
authority only by making its intentions
known to public to dispose of the property
by lease, in accordance with the modes
well known to law for disposal of the
public property namely either by inviting
tenders or by holding auction. The
valuation reports in our considered
opinion could not have formed the basis
to ascertain the market value of the
property for the simple reason that
potentiality of the property in question
has not been taken into consideration
while preparation of the valuation reports.
Similarly, the guidelines issued by the
Collector could not furnish a reasonable
basis for ascertaining the market value of
the property for the reasons that the
guidelines are prepared by the Collector
only for the purpose of payment of stamp
duty, therefore, the action of the authority
in not ascertaining the market value of
the property by a fair and transparent
manner cannot be approved.
11. Admittedly, the property in question
belongs to the State Government which on
constitution of the authority vested in it.
Rule 3 of the 1975 Rules (M.P. Nagar
Tatha Gram Nivesh Vikasit Bhoomiyo,
Griho, Bhavano Tatha Anya Sanrachanao
Ka Vyavan Niyam, 1975) provides that no
Government land vested in or managed by
the Authority shall be transferred except
with the general or special sanction of the
State Government given in that behalf.
The Authority while dealing with property
of the State Government which has vested
in it, acts like an agent of the State
Government. There are two limitations
imposed by law which control the
discretion of the authority in granting
largess, firstly with regard to the terms on
which largess may be granted and other
in regard to the persons who may be
recipients of such largess. Therefore,
under Rule 3 of the 1975 Rules, the
Authority is required to take an approval
from the State Government with regard to
the manner of disposal of the land as well
as the value on which it is proposed to be
transferred, as the Authority is the
CRR No.2339/2018
custodian of the property of the
Government. In the instant case, the
Authority has not obtained the sanction
as required under Rule 3 of the Rules.
Thus, the property has been transferred
in violation of Rule 3 of the 1975 Rules.
14.In view of the proceeding analysis, the
lease deeds dated 3.7.2010 and 28.8.2010
executed in favour of private respondents
are hereby quashed. The Authority is
directed to issue a notice inviting tender
for disposal of the property in question on
lease. It will be open for the private
respondents as well to participate in the
aforesaid process. In case the bids
submitted by private respondents are
found to be the highest, the lease deeds
would be executed in their favour in
respect of property in question. However,
in case the bids of private respondents are
not found to be the highest, in such an
eventuality, the respondent No.1 authority
shall refund the amount spent by private
respondents on the construction of
property in question from the bid amount
which will be received by the Authority
subject to private respondents furnishing
an account of the amount spent by them
in raising the construction, which shall be
duly supported by the documents.
10. In the light of the aforesaid observation and finding
of the Division Bench of this court, it cannot be said that the
relevant officers were not responsible for illegal transferring of
the property in favour of respondent no. 6 and 7 to provide
them undue benefit. Mere setting aside transaction by this
court, it does not exonerate the officers concerned from
misdeed allegedly committed by them.
11. At this stage, this court has reservation to make
specific and direct comments on the material available in the
record to take appropriate action against the concerned
person as it would prejudice the respondents. Therefore, it
would be appropriate to direct trial court to consider this
matter by passing afresh order and pass appropriate order
with regard to direction of further investigation, if required, or
pass any other appropriate order. In view of this court, the
impugned order to some extent suffers from non-application
of mind as it does not disclose aspect of consideration of the
relevant material and relevant reasoning at arriving to differ
reasoning of the investigating agency.
12. Undoubtedly, at the stage of consideration, the prayer
for acceptance of the closure report, very lengthy and analytic
order is not required but if the matter is sent back with the
direction for further investigation or rejection of the prayer for
acceptance of closure report, the order must have such
contents which indicate shortcoming of the investigation
including suggestions and guidelines with regard to further
investigation, if needed, when the further investigation is not
required and the closure report is not acceptable and the
prayer is rejected, the order must indicate in brief the
material, available with the report, supporting the allegations
and the reasons with regard to contrary opinion to the
Investigating officer. Merely saying that prima facie there is
suspicion of the commission of the crime is not sufficient to
reject the prayer for the closure report filed by the
investigating agency. Brief, indicative and speaking order is
required to strike balance and to ensure justice with the
investigating agency and accused persons.
13. The requirement of reasoning in judicial order has been
emphasised by Hon'ble the Apex Court in the case of
Assistant Commissioner, Commercial Tax Department,
CRR No.2339/2018
Works Contract and Leasing, Kota Vs. Shukla and
brothers, (2010)4 SCC 785 wherein in paragraph 13 it is
observed as under :-
"13. At the cost of repetition, we may notice,
that this Court has consistently taken the view
that recording of reasons is an essential feature
of dispensation of justice. A litigant who
approaches the Court with any grievance in
accordance with law is entitled to know the
reasons for grant or rejection of his prayer.
Reasons are the soul of orders. Non-recording of
reasons could lead to dual infirmities; firstly, it
may cause prejudice to the affected party and
secondly, more particularly hamper the proper
administration of justice. These principles are
not only applicable to the administrative or
executive actions, but they apply with equal force
and, in fact, with a greater degree of precision to
judicial pronouncements. A judgment without
reasons causes prejudice to the person against
whom it is pronounced, as they litigant is unable
to know the ground which weighed with the court
in rejecting his claim and also causes
impediments in his taking adequate and
appropriate grounds before the higher court in
the event of challenge to that judgment.
14. In the case of Secretary, Agricultural Produce
Market Committee, Bailhongal Vs. Quasami Janab
Ajmatalla Salamulla and another, reported in (2009)9 SCC
219, the Hon'ble Apex Court in para 9 held as under :-
"9. Courts, whose judgments are subject to
appeal have to remember that the functions of a
reasoned judgment are :
(i) to inform the litigant the reasons for the
decision;
(ii) to demonstrate fairness and correctness of the
decision;
(iii) to exclude arbitrariness and bias; and
(iv) to enable the appellate/revisional court to
pronounce upon the correctness of the decision."
15. Considering the aforesaid enunciation of law, we
are of the view that the Magistrate and the Special Judge
have right to differ from the opinion of the investigating
agency but the judicial propriety is also required to indicate
the facts and material and reasons compelling the Magistrate
or the Judge to arrive at different conclusion. It would also be
beneficial for the investigating agency to improve its working
and to take disciplinary action or direct for further training of
the officer of the investigating wing by the superior officer and
to protect people from unnecessary prosecution on the
direction of the Magistrate and the Judge by passing such
erroneous order.
16. Considering the aforesaid discussions, the
impugned order is set-aside and the learned Special Judge is
directed to go through, afresh, the material produced by the
investigating agency with the closure report and pass
speaking order without analyzing evidence and only indicate
the facts, material available on record with regard to different
opinion and rejecting the closure report.
17. Accordingly, the criminal revision stands disposed of.
(ATUL SREEDHARAN) (J.P. GUPTA)
JUDGE JUDGE
Digitally signed by JITENDRA
KUMAR PAROUHA
Date: 2021.03.18 14:52:43
+05'30'
