Smt. Archana Bajpai vs The State Of Madhya Pradesh
2022 Latest Caselaw 5704 MP

                                1


 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                            BEFORE

                HON'BLE SHRI JUSTICE SHEEL NAGU

                                &

            HON'BLE SHRI JUSTICE MANINDER S. BHATTI

                    ON THE 20th OF APRIL, 2022

               WRIT PETITION NO.9082 OF 2021

Between:-
  SMT. ARCHANA BAJPAI
  W/O SHRI VIKAS TIWARI
  OCCUPATION: INTEGRATED CHILD DEVELOPMENT
  PROJECT OFFICER, BEGUMGANJ,
  DISTT. RAISEN R/O DUPLEX NO. 110
  SHIVA ROYAL PARK, PHASE-I, BHOPAL
  DISTRICT BHOPAL M.P.

                                                  .....PETITIONER
(BY SHRI MANISH DATT, SENIOR ADVOCATE WITH
N.P. VERMA, ADVOCATE)

AND

 1. THE STATE OF MADHYA PRADESH
    THROUGH THE SECRETARY VALLABH BHAWAN,
    BHOPAL M.P.

 2. SECRETARY, LAW AND LEGISLATIVE AFFAIRS
    VALLABH BHAWAN, BHOPAL (M.P.)

 3. PRINCIPAL SECRETARY
    GENERAL ADMINISTRATION DEPARTMENT
    VALLABH BHAWAN, BHOPAL (M.P.)


                                                 ....RESPONDENTS

(BY SHRI ABHIJEET AWASTHI, ADVOCATE)
                                        2

              This writ petition coming on for admission this day, Hon'ble

Shri Justice Maninder S. Bhatti passed the following:

                                   ORDER

By way of this petition the petitioner seeks to assail the order

dated 9-03-2021 by which sanction has been granted by the parent

department of the petitioner to prosecute her.

2. Submission of learned counsel for the petitioner is to the effect

that on a frivolous complaint moved against the petitioner and her husband,

the matter was investigated and upon conclusion of investigation, the parent

department of the petitioner, i.e. Women and Child Development

Department, Govt. of Madhya Pradesh, came to a conclusion that in the

investigation charges levelled against the petitioner were not made out and,

therefore, it is desirable not to accord sanction to prosecute her. However,

subsequently when the matter was forwarded to the Law and Legislative

Affairs Department an opinion was accorded to prosecute the present

petitioner.

3. Thereafter, since there was conflict between parent department

and Law & Legislative Affairs Department, in terms of Circular dated 10-11-

2014 of the General Administration Department, Govt. of Madhya Pradesh,

the matter was directed to be placed before the Council of Ministers.

Accordingly, the Council of Ministers on 02-02-2022 accorded sanction to

prosecute the petitioner. Resultantly, the impugned order dated 9-03-2021

was passed by the parent department according sanction under Section 19(1)

(b) of the Prevention of Corruption Act, 1988 [for short, "the PC Act"] read

with Section 197 of the Code of Criminal Procedure [for brevity, "the

CrPC"].

4. Learned counsel for petitioner submits that the order impugned

is bad in the eyes of law, which is evident from the findings which reflect in

the note-sheet which has been brought on record as Annexure-P/1. While

referring to various pages of the note-sheet learned counsel for petitioner

submits that it was a case where there was neither any demand of illicit

gratification nor acceptance. Further, it was a case where there could not

have been any demand inasmuch a complaint was moved by the President of

Swa Sahayata Samuh, constituted under the Women and Child Development

Department and such Swa Sahayata Samuh was entitled to directly withdraw

the amount which is allocated to them by the State Government for

furtherance of the scheme. Thus, the allegation of illicit demand was

misconceived. Parent department of the petitioner while taking note of the

fact that there was no allegation against the petitioner nor anything contrary

was found in the transcript of conversation between the complainant and the

present petitioner or her husband, this was not a case to prosecute the

present petitioner inasmuch as neither the complainant tendered any amount

to the petitioner nor she accepted any such amount. Thus, while inviting

attention of this Court to para 34 of the compilation of the petition, learned

counsel for petitioner submitted that it was an adroit attempt to falsely

implicate the petitioner.

5. To substantiate his submissions, learned counsel for petitioner

placed reliance on the decision of the Apex Court rendered in the case of

State of Punjab and another vs. Mohammed Iqbal Bhatti, (2009) 17 SCC

92 and submitted that no case was made out against the petitioner. Thus,

sanction for prosecution could not have been granted in a mechanical manner

and thus the impugned order suffers from non-application of mind and the

same deserves to be lancated.

6. Per contra, learned counsel for respondents submits that when

parent department of the petitioner opined not to prosecute the petitioner the

matter was forwarded to the Law & Legislative Affairs Department, which

considered the matter in its entirety while taking note of the transcript of

conversation, and found that a prima facie case was made out against the

petitioner. Further, in case of accord of sanction, only presumptions is

necessary as regards overtact. In the present case, there was transcript of

conversations of 11-5-2016 and 13-5-2016 with husband of the petitioner as

well as petitioner herself. The transcript prima facie reveals that petitioner

herein was guilty of the charges and accordingly learned counsel for

respondents submitted that the instant petitioner deserves to be dismissed.

7. To buttress his submissions learned counsel for respondents

submits that a Co-ordinate Bench of this Court vide order dated 12-8-2021

passed in W.P. No.7818 of 2021 (Sabit Khan vs. State of M.P. and others)

has decided the issue holding that challenge to an order of sanction on the

ground that the same suffers from improper application of mind and non-

consideration of relevant material requires to be raised during course of trial.

He further referred to the judgments of the Apex Court delivered in the cases

of State of Maharashtra through CBI vs. Mahesh G. Jain, (2013) 8 SCC

119 and P.L. Tatwal vs. State of Madhya Pradesh, (2014) 11 SCC 431.

8. We have heard rival submissions raised a the Bar and also

perused the case diary which consists transcripts of conversation between the

complainant as well as the present petitioner and her husband.

9. A studied scrutiny of the transcript shows that there was illicit

demand by husband of the petitioner. Further, the petitioner told the

complainant to discuss with her husband when the complainant proposed that

her husband was asking for more. The relevant portions of the transcript

being useful for the present purpose, are reproduced hereunder :

"A- eSMe bRrk dg jgs Fks vkils-----

vpZuk& D;k sir fdldks nsuk gS A- Sir 30% gdk dg jgs Fks vki ftruk ysrh Fkh mruk ys yks-----

vpZuk& vc bl ekeys esa Sir (ifr) ls gh ckr djks gw-a ----

                             **                 **                **
                     A- vc sir fdldks nsuk gS
                     B- ges gh nsuk gS fdlh dks ugha nsuk gS -------
                     A- vkids fdrus cu jgs gS
                     B - 30%
                            **                  **                  **

vkosfndk pUnzizHkk ,oa ifj;kstuk vf/kdkjh us izfr nh fodkl ** ** ** B--------vLi"V rqEgkjs ikl iSlk ugha rks euk dj nks ----- A- Sir Madom ugha gS rks ---- gesus dgk----

** ** ** B- eSMe ls D;k ysuk nsuk ---- blesa eSMe dk dksbZ jksy ugha gS-&& blesa A- Sir, eSMe rks gS ifj;kstuk---------- vki gS D;k ---- B- ugh ;ss muls dksbZ eryc ugha ---- gS rqEgs ----;s lc phts rqEgkjh lqij okbtj ls ckr djuh pkfg;s ---- iSlk ges nsuk gS---- nsuk gks rks nks ugh rks ugha nks ------- vLi"V&& eSMe ls rqEgs dksbZ eryc ugha gS---"

10. Apparently, the Law & Legislative Affairs Department took

note of this transcript which resulted in conflicting view between the parent

department and Law & Legislative Affairs Department. We are of the

considered view, that the ground on which sanction of prosecution is being

challenged in the present petition, cannot be gone into in writ jurisdiction,

inasmuch as the writ Court cannot sit as an appellate Court over an order

granting sanction, being an administrative order. Therefore, adequacy or

inadequacy of the material placed before the sanctioning authority cannot be

gone into by the Court.

11. Submission of learned counsel for petitioner is to the effect that

once power is exercised, it cannot be exercised again. In our view, such

submission which is being sought to be founded on the decision of the

Hon'ble Supreme Court in Mohammad Iqbal Bhatti (supra) is of no avail

to the petitioner, inasmuch as in the present case, the opinion of the parent

department declining sanction was in conflict with the decision of the Law &

Legislative Affairs Department. Consequently, the matter was placed before

Council of Ministers in accordance with Circular of the General

Administration Department and sanction for prosecution of petitioner has

been accorded. Thus, it is not a case where sanction was refused earlier and

later on accorded. On the contrary, the parent deparment of petitioner

only forwarded the matter to the State Government for opinion, which is

luminescent from page number 35 of the compilation. Thus, submission of

learned counsel for the petitioner is sans substance.

12. In the case of P.L. Tatwal (supra) the Hon'ble Supreme Court

ruled thus :

"12. The grant of sanction is only an administrative function. It is intended to protect public servants against frivolous and vexatious litigation. It also ensures that a dishonest officer is brought before law and is tried in accordance with law. Thus, it is a serious exercise of power by the competent authority. It has to be apprised of all the relevant materials, and on such materials, the authority has to take a conscious decision as to whether the facts would reveal the commission of an offence under the relevant provisions. No doubt, an elaborate discussion in that regard in the order is not necessary. But decision making on relevant materials should be reflected in the order and if not, it should be capable of proof before the court.

xx xx xxx xx

16. In such circumstances, we are of the view that the trial court should conduct a proper inquiry as to whether all the relevant materials were placed before the competent authority and whether the competent authority has referred to the same so as to form an opinion as to whether the same constituted an offence requiring sanction for prosecution. In that view of the matter, we set aside the impugned order passed by the High Court and also order dated 27.12.2004 passed in Special Case No. 12 of 2004 by the trial court and remit the matter to the Special Judge (P.C. Act, 1988), Ujjain, Madhya Pradesh."

13. Another judgment of the Apex Court rendered in the case of

Mahesh Jain (supra) was also taken note of by the Co-ordinate Bench of

this Court in the case of Sabit Khan (supra).

14. Thus, in view of the decision of the Co-ordinate Bench of this

Court in Sabit Khan (supra), we do not perceive any infirmity in the order

impugned in the present writ petition warranting interference under Article

226 of the Constitution of India.

15. Ex-consequenti, the writ petition being sans substratum, stands

dismissed without any order as to costs.

      ( SHEEL NAGU)                                                                (MANINDER S. BHATTI )
          JUDGE                                                                            JUDGE



ac.



 AJAY KUMAR
                        Digitally signed by AJAY KUMAR CHATURVEDI

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=3796e6c1d0b4cce5f8c8561cdbb3a238176d46898b715c1662ee8b05

CHATURVEDI eed57eb0, pseudonym=7812D41F1F531DBC0B9219827A0B19AAEAA0618E, serialNumber=C8EAAC30EFBB2F0C7E41AE53BEEC562C515B38978E4597AA3 C73D309F0F1FBB9, cn=AJAY KUMAR CHATURVEDI Date: 2022.04.27 14:30:52 +05'30'