Madhya Pradesh High Court

Bhupendra Singh vs The State Of Madhya Pradesh on 17 March, 2021

Author: Atul Sreedharan

M.Cr.C No.3013 /2019

HIGH COURT OF MADHYA PRADESH : PRINCIPAL SEAT AT JABALPUR

1 Case Number M.Cr.C No. 3013/2019
2 Parties Name Bhupendra Singh Vs. State of Madhya Pradesh
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 Anil Khare, Senior counsel with Shri Priyank
the parties Agrawal, learned counsel for the applicant.

Shri Satyam Agrawal, learned counsel for the
respondent/Lokayukta.
8 Law laid down & (i) If Investigation Agency files the closure report, the

Significant paragraphs Magistrate or the Special Judge has jurisdiction to

number 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. 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
M.Cr.C No.3013 /2019

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) The income from known sources is not equivalent
to information submitted by the accused to the
department. The information with regard to acquiring
of the property along with source of the fund is further
required to be examined whether the disclosed
information about the source of income is correct or
fictitious. Unless this exercise is done, no public servant
can be held guilty for collecting the assets by adopting
undue means. In other words, mere giving information
to the department is not sufficient.

(iii) 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
M.Cr.C No.3013 /2019

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
M.Cr.C No.3013 /2019

HIGH COURT OF MADHYA PRADESH : JABALPUR.

(DB: Hon'ble Shri Justice Atul Sreedharan &
Hon'ble Shri Justice J.P. Gupta)

M.Cr.C No. 3013/2019

Bhupendra Singh
Vs.
State of Madhya Pradesh

Shri Anil Khare, senior counsel with Shri Priyank Agrawal,
learned counsel for the applicant.
Shri Satyam Agrawal, learned counsel for the
respondent/Lokayukta.
-----------------------------------------------------------------------

Whether approved for reporting (Yes/No).

ORDER

(17.03.2021)

Per J.P. Gupta, J.

This petition under section 482 of the Cr.P.C has been preferred for quashment of the order dated 23/12/2017 passed by the Special Judge under Prevention of Corruption Act, Jabalpur whereby reports in terms of closure report filed by the respondent in connection with Crime No.96/2011 under sections 13(1)(e), 13(2) of the Prevention of Corruption Act, 1988 (hereinafter refer as PC Act) was rejected and the respondent was directed to submit the material before the sanctioning authority to grant sanction for prosecution of the applicant.

2. In brief, the facts of the case are that on the basis of secret enquiry, it was found that during the check period M.Cr.C No.3013 /2019

from 04/04/1988 to 29/08/2011, the applicant who was working as Assistant Engineer, Municipal Corporation, Jabalpur amassed assets disproportionate to his known source of income. Therefore on 30/08/2011 the FIR of Crime No.96/2011 under sections 13(1)(e), 13(2) of the PC Act was registered and investigation was conducted and the respondent raided 6 places relating to the applicant on the basis of 6 search warrants issued by the competent court and the applicant submitted his representations along with relevant documents to demonstrate that his assets are in accordance to his known sources of income. After investigation, the respondent/investigating agency came to the conclusion that the applicant has not possessed disproportionate property in comparison to his income from known sources. The respondent/investigating agency arrived at the conclusion that the income, assets and expenditure of the applicant was as under during the check period:- INCOME OF THE PETITIONER AS PER INVESTIGATING AGENCY i.e. RESPONDENT Sr.No. Source of Income Amount

1. Salary prior to check period Rs.82,800/-

2. Income derived from Salary during check Rs.34,32,652/-

period

3. Income through GPF Rs.50,000/-

4. Interest received from Bank Rs.4,99,674/-

5.    Bank Loan                                     Rs.70,57,844/-
6.    Income derived from LIC                       Rs.4,78,866/-
7.    Income from investment made in post           Rs.2,35,240/-
      Office Recurrent deposit
8.    Income from renting properties                Nil
9.    Income from Bonds and shares                  Rs.82,680/-

10. Income derived from Agriculture activities Rs.22,19,966/-

11. Income from sale of vehicle Rs.80,000/-

M.Cr.C No.3013 /2019

12. Income from petitioner's wife while being Rs.1,98,450/-

a proprietor of Century Engineering

13. Income of petitioner's wife through her Rs.1,66,83,433/ business of petrol pump, tanker etc. TOTAL Rs.3,11,01,605/-




        EXPENDITURE OF THE PETITIONER AS PER THE
              INVESTIGATION AGENCY i.e. RESPONDENT
Sr.no. Expenditure                              Amount
1.    Expenditure prior to check period         Rs.55,200/-
2.    Household expenditure                     Rs.13,73,060/-
3.    Expenditure on payment of GPF             Rs.50,000/-
4.    Amount in bank accounts                   Rs.26,32,506/-
5.    Expenditure on payment of bank loan       Rs.3,85,000/-

6. Expenditure on premium paid in respect Rs.6,11,398/-

of LIC policies

7. Expenditure on payment in respect to Rs.1,87,600/-

recurring deposits

8. Expenditure on bonds and shares Rs.38,500/-

9. Expenditure made on purchase of Rs.22,98,727/-

immovable assets

10. Expenditure on agriculture Rs.11,09,983/-

11. Expenditure on purchase of vehicle Rs.4,32,750/-

12.   Inventory                                 Rs.7,83,500/-
13.   Cash                                      Rs.1330/-
14.   Expenditure on payment of TV loan by      Rs.51,600/-
      petitioner's wife

15. Expenditure of petitioner's wife in respect Rs.1,70,58,196/-

to her business of petrol pump tanker etc.

16. Expenditure on education of petitioner's Rs.1,90,500/-

son Total Rs.2,72,59,850/-

3. Based on the said conclusion of the investigation, after duly considering the explanation given by the applicant, M.Cr.C No.3013 /2019

the respondent filed closure report as no case made out against the applicant and the same was submitted before the Special Judge, and learned Special Judge by the impugned order dated 23/12/2017 rejected the prayer with regard to acceptance of the closure report.

4. Learned Special Judge passed the order in the following terms:-

vkj{kh dsUnz fo-iq-LFkk- Hkksiky ds LFkkuh; dk;kZy;] tcyiqj ds }kjk izLrqr fd;s x;s vafre izfrosnu ¼[kkRek½ Øekad [email protected] fnukafdr 10-03-2016 dk ifj'khyu fd;k x;kA ekeys dh izFke lwpuk fjiksVZ fnukad 30-08-2011 ls ;g izdV gksrk gS fd rRdkyhu fujh{kd jkto/kZu ekgs'ojh dks dk;kZy; ls izkIr f'kdk;r ij funsZ'kkuqlkj xksiuh; tkap dh x;h ftlds vk/kkj ij ;g ik;k x;k Fkk fd vfHk;qDr us viuh 'kkldh; inLFkkiuk ¼fnukad 04-04-1988 ls 29-08-2011½ vof/k esa izFke n`"V;k vuqikrghu lEifRr;ka vftZr dh x;h gSaA ftl ij vfHk;qDr ds fo:) Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 dh /kkjk 13 ¼1½ ¼M½ lgifBr /kkjk 13¼2½ ds vUrxZr n.Muh; vijk/k dk vUos"k.k djus ds fy, vijk/k Øekad [email protected] fnukafdr 30-08-2011 iathc) fd;k x;k gSA mDr vijk/k Øekad ds laca/k esa bl U;k;ky; esa la/kkfjr iath lu~ 2011 ls ;g izdV gksrk gS fd rRdkyhu iqfyl v/kh{kd ] fo-iq-LFkk- tcyiqj ds } kjk vius vkosnu Øekad [email protected]@[email protected] tcyiqj fnukad 27-08- 2011 ds fuca/kuksa esa vfHk;qDr ,oa mlds ^^dqVqEc ds lnL;ksa ls lEcfU/kr** 06 fofHkUu LFkkuksa ij ryk'kh ds fy, okjaV iznku djus dh izkFkZuk dh x;h FkhA ftl ij esjs iwoZ ihBklhu vf/kdkjh ¼Jh iz|qEu flag½ ds }kjk RkRdkyhu fujh{kd fo-iq- LFkk tcyiqj Jh jkto/kZu ekgs'ojh dks vf/kÑr djrs gq, 06 ux ryk'kh okajV fnukad 07-09-2011 tkjh fd;k FkkA mDr ryk'kh okjaV dk fuokZg izfrosnu Øekad [email protected]@[email protected] tcyiqj fnukafdr 07-09-2011 izLrqr fd;k x;k gS ftlesa vfHk;qDr ,oa mlds ÞdqVqEc ds lnL;ksaÞ }kjk rRle; :i;s 1]43]81]050 ds ewY; dh py ,oa vpy lEifRr /kkfjr gksuk ik;k x;k FkkA vafre izfrosnu ¼[kkRek½ Øekad [email protected] fnukafdr 10-03-2016 dh df.Mdk&8 ls ;g izdV gksrk gS fd ekeys esa nks vUos"k.kdrkZ uker% Jh jkto/kZu ekgs'ojh ,oa Jh izHkkr 'kqDyk] jgs gSaA f}rh; vUos"k.kdrkZ izHkkr 'kqDyk us vafre izfrosnu ¼pkyku½ esa ^^?kVuk dk laf{kIr fooj.k** ds varxZr vfHk;qDr dh iRuh Jherh Lusgyrk flag dh fuEufyf[kr vtZu dks vfHk;qDr dh vk; lfEefyr fd;k gSA& M.Cr.C No.3013 /2019

1- cSad vkWQ cM+kSnk] 'kk[kk jhok ¼e-iz-½ ds [kkrk Øekad 25610400000163 dh lhek :i;s 60]00]000 esa ls :i;s 31]41]162- 2- futh foRr daiuh ;Fkk& VkVk Qk;usal daiuh fyfeVsM ls fofHkUu frfFk;ksa esa yh xbZ _.k jkf'k :- 27]00]000- 3- ,y-vkbZ-lh- gkmflax QkbZusUl ls Hkou ds fy;s yh xbZ _.k jkf'k :- 8]50]000-

nwljh vksj vfHk;qDr dh iRuh Lusgyrk flag ds }kjk lu~ 1994 ls lu~ 1998 rd thou chek fuxe ds vfHkdrkZ dh :Ik esa vftZr dh x;h deh'ku jkf'k :- 33]666 dks vfHk;qDr dh iRuh Lusgyrk flag dh vk; ds :Ik esa ekU; dj fy;k gSA f}rh; vUos"k.kdrkZ us vfHk;qDr dh iRuh ds fofHkUu O;olk;ksa& isVªksy iai] VSadj] cqfVd ¼flykbZ] d<+kbZ] cqukbZ½] ckjkr ?kj lapkyu vkfn dks of.kZr fd;k gSA mDr leLr O;olk; fnukad 04-04-1998 ls 29-08-2011 ds chp fd;k tkuk rkRif;Zr gSA f}rh; vUos"k.kdrkZ us Jherh Lusgyrk flag ds mDRk O;olk; esa fofuos'k dh tkus okyh iwath ds lzksr ds lEcU/k esa dksbZ larks"ktud lkexzh ,df=r ugha fd;k gS vkSj mDr O;olk; ls izkIr vk; ¼:- 1]98]450$ :- 1]66]83]433 $ :- 10]44]000=:-1]79]25]883½ dks vfHk;qDr dh vk; esa lekos'k fd;k gSA tcfd e/;izns'k flfoy lsok ¼vkpj.k½ fu;e 1965 ds fu;e 16 ¼3½ ;g micaf/kr djrh gS fd ;fn dksbZ 'kkldh; lsod ds dqVqEc dk dksbZ lnL; fdlh djksckj ;k O;kikj esa yxk gqvk gS ;k mlds dqVqEc dk dksbZ lnL; chek daiuh ;k deh'ku ,tsalh dk LokfeRo j[krk gS ;k mldk izca/k djrk gS] rks og 'kklu dks fjiksVZ nsxkA izLrqr izdj.k esa ;g fdafpr nf'kZr ugha gksrk fd vfHk;qDr us viuh iRuh Lusgyrk flag ds mDr O;olk; ;Fkk isVªksy iai] rsy Vsadj] edku dz;] cqVhd] ckjkr ?kj lapkyu dh ;Fkk visf{kr fjiksVZ 'kklu dks fn;s tkus ds laca/k esa dksbZ lk{; ,oa lkexzh izdj.k ds vfHkys[k ij ugha gSA vfHk;qDr us viuh iRuh Jherh Lusgyrk flag ds chek vfHkdrkZ ¼lu~ 1994 lu~ 1998½ rd dh fjiksVZ 'kklu dks iznku ugha fd;k vkSj tc vfHk;qDr dh iRuh dks deh'ku jkf'k iznku dh x;h rc vfHk;qDr ds }kjk fnukad 29-12-1997 dks vk;qDr] uxj ikfydk fuxe] jhok dks lwfpr izsf"kr dj nh x;hA mDr lwpuk deh'ku izkIr djus dh lwpuk jgh gSA vkSj O;olk; izkjaHk djus dh lwpuk ugha ekuh tk ldrhA f}rh; vUos"k.kdrkZ us vafre izfrosnu ¼[kkRek½ esa vfHk;qDr dh Ñf"k vk; ds laca/k esa tks fooj.k izLrqr fd;k gS] mlls ;g nf'kZr gksrk gS fd vfHk;qDRk ds firk ,oa ekrk us vius va'k dh Ñf"k Hkwfe dks vfHk;qDr ds nks lxs HkkbZ;ksa dh lgefr ls vfHk;qDr dks Ñf"k djus ds fy, le;≤ ij iznku dj fn;k FkkA izdj.k ds vfHkys[k ij ;g nf'kZr djus ds fy, dksbZ lk{; ugha gS fd vfHk;qDr ds nks vU; HkkbZ;ksa dh vk; dk lzksr vkSj muds }kjk /kkfjr vU; laifRr;ka rd le; fdruh jgh gSA blfy, mDRk rF; xaHkhj :Ik ls lansgkRed gSA vkSj M.Cr.C No.3013 /2019

vUos"k.kdrkZ ds }kjk izdV dh x;h Ñf"k vk; :- 44]39]932 izFke n`"V;ka vLohdkj fd;s tkus ;ksX; gSA f}rh; vUos"k.kdrkZ ds }kjk vafre izfrosnu ¼[kkRek½ Øekad&[email protected] fnukafdr 10-03-2016 esa vfHk;qDr ,oa mldh iRuh Jherh Lusgyrk flag ds }kjk fy;s _.kksa vkSj fd;s x;s fofu/kkuksa ds lEcU/k esa e/;izns'k flfoy lsok ¼vkpj.k½ fu;e] 1965 ds fu;e 17 ¼4½ ¼2½ esa vUrfoZ"V mica/kksa ds vuqlkj 'kklu dks fjiksVZ djuk vkSj mlds vkns'kksa ds vuqlkj dk;Z djus ds lEcU/k esa Hkh dksbZ lk{; ,oa lkexzh ,df=r ugha fd;k gSA vafre izfrosnu ¼[kkRek½ Øekad& [email protected] fnukafdr 10-03-2016 ls ;g Hkh izdV ugha gksrk fd vfHk;qDr ,oa mldh iRuh Lusgyrk ds }kjk vftZr dh x;h fofHkUu LFkkoj LkEifRr;ksa ds laca/k esa vfHk;qDr ds }kjk e/;izns'k flfoy lsok vkpj.k fu;e] 1965 ds fu;e 19 ¼2½ ds fuca/kuksa esa fofgr izkf/kdkjh dh iwoZ tkudkjh ls mDr LFkkoj lEifRr;ksa vftZr dh x;h FkhaA f}rh; vUos"k.kdrkZ us ;g Hkh izfrosfnr fd;k gS fd vfHk;qDr ds vius vH;kosnu esa Lo;a ds fookg] iq= ,oa iq=h ds tUefnu ,oa vU; voljksa ij fofHkUUk migkj vfHkizkIr fd;s gSaA mDRk migkjksa ds lEcU/k esa e/;izns'k flfoy lsok vkpj.k] fu;e 1965 ds fu;e& 14¼2½ ds ikyu esa lEcU/k esa Hkh dksbZ lk{; ,oa lkexzh izLrqr ugha fd;k gSA vfHk;qDr ds fookg volj ij izkIr oLrq;sa e/;izns'k flfoy lsok vkpj.k fu;e] 1965 ds fu;e 14&, vkSj e/;izns'k ngst izfr"ks/k fu;e] 2004 ds vUrxZr fookg esa izkIr oLrqvksa dh lwph vkSj ,slh lwph esa lekfo"V lEifRr;ksa dks vfHk;qDr ds lsok vfHkys[k esa izfo"V fd, tkus dk Hkh dksbZ izdVhdj.k ugha gSA vfHk;qDr ds }kjk Check Period (Dated 04-04-1988 to 29-08-2011) esa ;Fkk izfrosfnr vk; :- 3]11]01]605 esa mDRk leLr lEifRr;ka ,oa mlls vftZr vk; dks lekfo"V fd;k x;k gSA tcfd mDRk vof/k esa vfHk;qDr dks ek= :- 34]32]652 osru ds :Ik esa izkIr gq, Fks vkSj ;fn psd ihfj;M ds iwoZ vk; :- 82]800 tksM+k tk, rc vfHk;qDr dh vk; izFke n`"V;k ek= :- 35]15]452 nf'kZr gksrk gSA mDr lax.kuk ,oa vk; Lkzksr dh oS/krk dks n`f"Vxr j[krs gq, izFke n`"V~;k ;g nf'kZr gksrk gS fd vfHk;qDr ds }kjk Check Period (Dated 04-04-1988 to 29-08-2011) esa vuqikrghu jgh gSA bl izdkj] vfHk;qDr ds fo:) Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 dh /kkjk 13 ¼1½ ¼M½ lgifBRk /kkjk 13¼2½ ds vUrxZr n.Muh; vijk/k dkfjr fd;k tkuk izFke n`"V;k xfBr gksrk gS fd blfy,] vafre izfrosnu ¼[kkRek½ Øekad [email protected] fnukafdr 10-03-2016 vLohdkj fd, tkus ;ksX; gS] blfy, vLohdkj fd;k tkrk gSA ifj.kker% vkj{kh dsUnz&fo-iq-LFkk- Hkksiky ds LFkkuh; dk;kZy;] tcyiqj ¼e-iz-½ ds }kjk izLrqr vafre izfrosnu ¼[kkRek½ Øekad [email protected] fnukafdr 10-03-2016 ewyr% bl vkns'k dh lR; izfrfyfi ds lkFk okil fd;k tk, fd] ekeys ds leLr vfHkys[k l{ke izkf/kdkjh ds le{k vfHk;sktu LohÑfr ds fopkj gsrq rRdky izLrqr fd;k tk,A M.Cr.C No.3013 /2019

ekuuh; loksZPp U;k;ky; ds U;k; n`"Vkar Mk- lqcze.;e LOkkeh fo:) Mk- eueksgu flag ,oa vU; , vkbZ vkj 2012 ,l lh 1185 esa izfrikfnr fof/kd fl)kar ds vkyksd esa ;g funsZf'kr fd;k tkrk gS fd vfHk;kstu LohÑfr ds lEcU/k esa l{ke izkf/kdkjh }kjk fd;s x;s fofu'p; dks rhu ekg ds vanj bl U;k;ky; dks lwfpr djsaA vkns'k dh lR;izfr ds lkFk vkj{kh dsUnz&Hkksiky ds [kkRek Øekad [email protected] fnukafdr 10-03-2016 izLrqr fd;s x;s vfHkys[k ds lkFk LFkkuh; dk;kZy;] fo-iq-LFkk tcyiqj dks vfxze dk;Zokgh gsrq okil fd;k tk,A izkfIr vfHkLohÑfr i`"Bkafdr ,oa gLrk{kfjr dh tk;sA ;g izdj.k ifj.kke ntZ dj le;kof/k esa vfHkys[kkxkj Hkstk tkosaA

¼v{k; dqekj f}osnh½ fo'ks"k U;k;k/kh'k ¼yksdk;qDr½ tcyiqj ¼e0iz0½

5. The aforesaid impugned order has been assailed by the applicant on the following grounds:-

(i) That the order impugned dated 23.12.2017 is totally a non-speaking order, without application to mind and without going into the nitty gritties of the report submitted by the Respondent agency.

(ii) The report submitted by the Respondent dealt with every aspect of the allegations levelled against the accused persons, however, the learned special Judge proceeded to reject the closure on flimsy ground without noticing the fact that the Respondent had duly assigned reasons why the allegations against the accused persons is not made out.

(iii) The petitioner submits that the main reason assigned by the learned Single Judge while refusing to accept the closure report is that the petitioner did not comply with the Conduct Rules 1965, in as much as no intimation was given by him to his department with regard to the business of his wife. While he had duly informed his department in terms of Rule 16(3) informing that petitioner's wife is running a business and the intimations are part of the record.

(iv) The reasoning assigned by the learned Special Judge that the sum of Rs.44,39,932/- cannot be taken into M.Cr.C No.3013 /2019

consideration as income derived from agriculture is also incorrect. The Learned Special Judge goes on to state that since there is no evidence as to what is the income of two brothers of the petitioner and how much assets do they possess. The said reasoning is totally unwarranted as the investigating agency after properly examining the said fact came to the conclusion that the income generated by the petitioner under the head of agricultural income is correct and genuine and that his parents duly gave him the piece of land.

(v) The learned Court below is vested with a discretion to either refuse or accept the closure report or direct the investigating officer to further investigate, however, the discretion vested should also be exercised judiciously and cannot be unregulated or unbridled. In the present case, the learned Special Judge if was of the opinion that there is no evidence about the agricultural income of the petitioner, he could have proceeded to direct for further investigation, however the learned special Judge without assigning any cogent reasons proceeded to reject the closure report and directed the investigating agency to seek sanction against the petitioner.

(vi) The Special Judge failed to take other income of the petitioner and opined that the salary received by the petitioner is the sole income received by him during the check period.

(vii) The impugned act on the part of the court below against the petitioner is bad in law, without appreciating proper facts of the present case and thus deserves to be set aside.

(viii) The learned trial court wrongly considered that investigating agency has find the income of the applicant from the agriculture to the tune of Rs.44,39,932/- while in the closure report income from agriculture is considered only Rs.22,19,996/-. This aspect establish that the learned Special Judge has passed the impugned order in erroneous manner without considering the material available on record and did not considered the facts, evidence and material available in the police report in judicious manner.

(ix) Similarly, the learned Special Judge has wrongly observed that no due information was given to the M.Cr.C No.3013 /2019

department with regard to acquiring the property as per M.P Civil Services Conduct Rule while the investigating agency has collected all the information given to the department with regard to acquiring of the properties in due time and the document relating to aforesaid aspects are part of documents submitted with the closure report and also appreciated by the investigating agency in detail in the closure report. Despite of it, learned Special Judge has ignored and arrived at different conclusion arbitrarily.

6. Learned counsel for the respondent has also supported the applicant and also made same prayer and assailed the impugned order on the ground that the learned Special Judge has exceeded its jurisdiction as the impact of the impugned order would amount to direct the Investigating Agency to file charge-sheet and directing the sanctioning authority to grant sanction which is contrary to law. In the light of the aforesaid grounds further prayer is made that the impugned order be quashed and set aside and the learned Special Judge be directed to accept the closure report filed by the respondent.

7. Having heard the contention of learned counsel, in view of this court, the contention that the learned trial court has exceeded its jurisdiction has no substance. It is settled law that when the closure report is not accepted, the Magistrate or the Special Judge has power to direct for further investigation or to take cognizance on the material produced before him, if he is of the opinion that the same is sufficient to prosecute the accused person, but if any sanction for prosecution by the competent authority is required in the law, then such cognizance cannot be taken unless and until the sanctioning authority after considering the material placed before him to grant sanction for the prosecution. In other cases, the Magistrate or the Judge despite of giving direction for further investigation may also M.Cr.C No.3013 /2019

direct the complainant to file protest petition and all material to support the allegations, if he desires so and, thereafter, may take cognizance, if the sanction is not required or if any sanction is needed, the cognizance will be taken after granting sanction for prosecution by the competent authority and in case of absence of the sanction, the Magistrate or the Special Judge cannot proceed further as he is left no other option in the matter.

8. In the present case, so far as the aforesaid 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.

9. 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, M.Cr.C No.3013 /2019

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 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, M.Cr.C No.3013 /2019

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".

10. The aforesaid judgment of Hon'ble the Apex Court squarely covers the aforesaid 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.

11. So far as the factual aspects of this case are concerned, we have examined the record submitted with the closure report in the light of the aforesaid argument, we find that in the impugned order certain observation namely with regard to the amount of the agriculture income and non- furnishing of information with regard to the acquiring of properties and starting business by wife are contrary to the record.

12. Apart from it, learned Special Judge has also observed that the investigating agency has not collected the relevant material with regard to giving information by the applicant to the department as required under Rule 14(2), 14(a), 17(4)(2), 19(2) of the M.P Civil Services Conduct Rulea, 1965. In view of us, if the learned Special Judge was of the opinion that the investigating officer has not collected the M.Cr.C No.3013 /2019

aforesaid material, which is necessary for fair investigation, the learned Special Judge has power to direct the investigating agency for further investigation, but this course has not been followed and with a view to ensure fair investigation, it could have been appropriate to direct for further investigation on the aforesaid aspect.

13. From the record, it appears that the applicant has informed to the department about the earning of the property and starting of new business by the family member, but merely collecting the documents allegedly submitted by the applicant to the department, it can't be said that the information given by the applicant was correct and the information was genuinely given in due time or the document has been prepared later on to justify the explanation is also an area to be taking into consideration in the investigation. The income from known sources is not equivalent to information submitted by the accused to the department. The information with regard to acquiring of the property along with source of the fund is further required to be examined whether the disclosed information about the source of income is correct or fictitious. Unless this exercise is done, no public servant can be held guilty for collecting the assets by adopting undue means. In other words, mere giving information to the department is not sufficient. So far present case is concerned, some explanation which has been considered by the investigating agency are unnatural and at this stage prima facie may not be acceptable. It is contended that for starting business of the wife, loan has been taken from so many close relatives and in this regard timely information was given to the Department. In view of this Court, despite of giving information, the investigating agency has not enquired as to whether the persons named were M.Cr.C No.3013 /2019

capable and actually parted the loan or not. Similarly, the income from the agriculture has not been shown in the income tax return and the income from the agriculture has been shown from the land, which was not owned by the applicant but owned by the brothers of the applicant and the investigating agency has considered it as income from known sources. Prima facie this approach cannot be said to be correct at this stage.

14. In view of the aforesaid discussion and observation, prima facie it appears that the closure report is not acceptable and there are few grey areas in the case, which requires further investigation and, at this stage of the case, considering the aforesaid material and aspects of the case with a view to protect the interest of the accused persons this Court has its own reservation as if any clear opinion and detailed observations are given, it would prejudice the accused as the investigating authority or sanctioning authority may take it as mandate despite of performing their duties independently without influencing with the observation and opinion of this Court. Therefore, it would be appropriate to consider the prayer of the applicant that if the learned Special Judge was not satisfied with the finding of the respondent/investigating agency, he should have directed the respondent to make further investigation, despite of giving direction to place the material before sanctioning authority for granting sanction.

15. In view of the circumstances, the impugned order is not sustainable and with a view to strike the balance among the parties and public interest the matter is required to be sent back to the learned Special Judge for considering the closure report afresh and pass the order taking all M.Cr.C No.3013 /2019

aspects of the case into consideration in accordance with law.

16. 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.

17. 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 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 M.Cr.C No.3013 /2019

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.

18. 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."

19. Considering the aforesaid case laws, 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 M.Cr.C No.3013 /2019

people from unnecessary prosecution on the direction of the Magistrate and the Judge by passing such erroneous order.

20. In view of the aforesaid discussion, the impugned order dated 23/12/2017 is set aside and the learned Special Judge is directed to consider afresh the material produced by the investigating agency with closure report and pass a speaking order referring the material with a view to indicate the facts and material available, or which is expected to be collected for fair investigation with regard to different opinion and rejecting the closure report. Accordingly this petition stands disposed of.

      (ATUL SREEDHARAN)                        (J.P. GUPTA)     JUDGE
    JUDGE

Digitally signed by
TARUN   KUMAR
    Tarun/JP/-
SALUNKE
Date: 2021.03.18
14:39:57 +05'30'