Madhya Pradesh High Court
Special Police Establishment ... vs The State Of Madhya Pradesh on 5 December, 2022
Author: Chief Justice
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 5th OF DECEMBER, 2022
WRIT PETITION No. 25917 of 2021
BETWEEN:-
SPECIAL POLICE ESTABLISHMENT THROUGH O.I.C.
SANTOSH SINGH BHADORIYA S/O SHRI RAM SINGH,
AGED ABOUT 54 YEARS, OCCUPATION: D.S.P. MOTI
BANGLA, LOKAYUKT OFFICE, INDORE (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI VEER KUMAR JAIN - SENIOR ADVOCATE
WITH SHRI VAIBHAV JAIN - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
CHIEF SECRETARY MANTRALAY, BHOPAL
(MADHYA PRADESH)
2. STATE OF M.P. THROUGH PRINCIPAL
SECRETARY LAW AND LEGISLATIVE AFFAIRS
DEPARTMENT MANTRALAY, BHOPAL
(MADHYA PRADESH)
3. STATE OF M.P. THROUGH PRINCIPAL
SECRETARY PUBLIC HEALTH AND
ENGINEERING DEPARTMENT. MANTRALAY,
BHOPAL (MADHYA PRADESH)
4. RAJKUMAR SONI S/O VRINDAVAN SONI
OCCUPATION: SERVICE R/O 107,
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 12-12-2022
11:07:46
2
BHAGYASHREE COLONY, INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI ANAND SONI - ADDITIONAL ADVOCATE GENERAL FOR
RESPONDENTS NO.1 2 & 3 AND
SHRI VINAY SARAF - SENIOR ADVOCATE WITH SHRI RIZWAN
KHAN - ADVOCATE FOR RESPONDENT NO.4)
........................................................................................................
This petition coming on for admission this day, Hon'ble Shri
Justice Ravi Malimath, Chief Justice passed the following:
ORDER
The petitioner is the Special Police Establishment, Indore,
namely, the office of Lokayukt, State of Madhya Pradesh. The case of
the petitioner is that on a report made to the petitioner that the
respondent no.4 has amassed properties and assets beyond the known
sources of income, a raid was conducted at his premises. Consequently,
an FIR was registered in Crime No.376 of 2014. A report was
accordingly prepared. It was submitted before the sanctioning authority
seeking sanction to prosecute respondent no.4. The respondent no.3 by
the impugned order has rejected the grant of sanction to prosecute
respondent no.4. Questioning the same, the instant petition is filed.
2. Shri Veer Kumar Jain, learned senior counsel appearing for the
petitioner's counsel contends that the State have committed an error in
refusing to grant sanction to prosecute the respondent no.4. That
substantial material exists in order to show that sanction for
prosecution requires to be granted. That even the grounds stated in the
order refusing to grant sanction for prosecution are untenable. He
places reliance on a Division Bench judgment of the Jabalpur Bench of
this Court in the case of Special Police Establishment vs. State of M.P.
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reported in 2011 (2) MPLJ 529; a Division Bench judgment of the
High Court of Andhra Pradesh in the case of Sri K. Srinivasulu vs.
Government of A.P. (2010 SCC Online AP 151); and the judgment of
the Hon'ble Supreme Court in the case of Vijay Rajmohan vs. State
Represented by the Inspector of Police, CBI, ACB, Chennai, Tamil
Nadu reported in 2022 SCC Online SC 1377, in support of his
contention.
3. Reply is filed by the respondents no.1 to 4. They have denied the
petition averments. They rely on a Division Bench judgment of the
Jabalpur Bench of this Court passed in W.P.No.13776 of 2022 (State of
M.P. vs. Sandeep Kumar Lohani and others) on 01.07.2022 to contend
that the establishment of the Lokayukt could not seek for a mandamus
against the State to grant sanction for prosecution. Hence, they pray
that this petition be dismissed.
4. Heard learned counsels.
5. In the judgment in the case of Sandeep Kumar Lohani (supra),
this Court has relied on the judgments of the Hon'ble Supreme Court
in the case of Mohd. Iqbal Ahmad vs. State of Andhra Pradesh reported
in AIR 1979 SC 677 as well as in the case of State of Punjab Vs.
Mohammad Iqbal Bhatti reported in 2010 Cr.L.J. 1436 and came to the
conclusion that the work of the Lokayukt authorities is to investigate
into the matter and to submit a report before the Government for
seeking sanction. It is for the State Government to analyse the report
and it is their discretion and domain to grant or not to grant sanction
for prosecution. That sanction is not an idle formality but a solemn and
sacrosanct act, which affords protection to the government servants
against frivolous prosecutions. Hence, on these grounds the petition
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filed by the very Lokayukt was dismissed and the plea of the petitioner
therein seeking grant of sanction was declined.
6.(a) So far as the judgments relied upon by the learned senior counsel
appearing for the petitioner's counsel are concerned, in the case of
Special Police Establishment (supra), reliance is placed on paragraphs
12, 16, 19, 21 and 22, to contend that the Special Police Establishment
has locus standi to challenge the order refusing grant of sanction.
However, while considering the findings with respect to locus standi of
the SPE to challenge the same, the contents of para 12 of the said
judgment would have to be considered. The contention of the State
therein was to the effect that the M.P. Government Business
(Allocation) Rules were made in exercise of the powers conferred
under the Clauses (2) and (3) of the Article 166 of the Constitution of
India by the Hon'ble Governor. That the business of sanction for
prosecution in the cases investigated by the SPE has been allocated to
the Law and Legislative Affairs Department. Therefore, the SPE could
not have challenged the order refusing grant of sanction. It is on this
question, as stated in para 12 that the Division Bench came to the
conclusion that the SPE has a locus standi to challenge the order
refusing grant of sanction. Hence, the said judgment has no bearing on
this case, since that is not the ground urged herein.
(b) The next judgment relied upon is in the case of Sri K.
Srinivasulu (supra). Reliance is placed on the heading of the discussion
"whether the petitioner lacks locus standi to file the writ petition in
public interest", wherein the Division Bench of the High Court of
Andhra Pradesh held that a public interest litigation is maintainable in
cases where grant of sanction is refused or not. However, herein the
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petitioner has not filed this petition in public interest. It is filed by the
Lokayukt. As held in the Division Bench judgment of this Court in the
case of Sandeep Kumar Lohani (supra), the duty of the Lokayukt is
merely to investigate. Its role ends there. It cannot prosecute the
proceedings further as a right given to the other stakeholders that are
involved here. Therefore, we are of the view that the said decision
would not have any bearing on this case.
(c) The next judgment relied upon is in the case of Vijay Rajmohan
(supra) wherein the Hon'ble Supreme Court in paras 39 and 40 has held
as follows:
"39. In conclusion, we hold that upon expiry of the three
months and the additional one-month period, the aggrieved party,
be it the complainant, accused or victim, would be entitled to
approach the concerned writ court. They are entitled to seek
appropriate remedies, including directions for action on the
request for sanction and for the corrective measure on
accountability that the sanctioning authority bears. This is
especially crucial if the non-grant of sanction is withheld without
reason, resulting in the stifling of a genuine case of corruption.
Simultaneously, the CVC shall enquire into the matter in the
exercise of its powers under Section 8(1)(e) and (f) and take such
corrective action as it is empowered under the CVC Act.
40. The second issue is answered by holding that the period of
three months, extended by one more month for legal consultation,
is mandatory. The consequence of non-compliance with this
mandatory requirement shall not be quashing of the criminal
proceeding for that very reason. The competent authority shall be
Accountable for the delay and be subject to judicial review and
administrative action by the CVC under Section 8(1)(f) of the CVC
Act."
However, what has been narrated in paras 39 and 40 by the
Hon'ble Supreme Court would have to be taken into consideration. As
to what were the questions that were being considered by the Hon'ble
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Supreme Court, that could be seen from para 2 of the judgment, which
reads as follows:
"2. Two important questions of law arise for consideration
in this appeal. The first question is whether an order of the
Appointing Authority granting sanction for prosecution of a
public servant under Section 19 of the Prevention of Corruption
Act, 1988, would be rendered illegal on the ground of acting as
per dictation if it consults the Central Vigilance Commission for
its decision. The second question is whether the period of three
months (extendable by one more month for legal consultation)
for the Appointing Authority to decide upon a request for
sanction is mandatory or not. The further question in this
context, is whether the criminal proceedings can be quashed if
the decision is not taken within the mandatory period."
Therefore, what was being considered by the Hon'ble Supreme
Court was as to whether an order of the appointing authority granting
sanction for prosecution under the Prevention of Corruption Act would
be rendered illegal on the ground of acting as per the dictation of the
Central Vigilance Commission for its decision. The second question
was whether the period of three months extendable by a further period
of one month by the appointing authority to decide upon the request for
sanction is mandatory or not. We are of the view that both the
questions that were considered by the Hon'ble Supreme Court are alien
to the facts of this case.
7. In the instant case, the question that would arise for
consideration is as to whether the Lokayukt, as an institution has any
authority to challenge an order refusing to grant sanction by the State.
As held hereinabove, the said question has already been answered by
this Court in the judgment in the case of Sandeep Kumar Lohani
(supra). Every State body has a role to perform. It has to do so within
the confines of the power vested in it by statute. The Lokayukt has its
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role to play as much as the State Government has its role to perform.
The duty of the Lokayukt is to conduct an investigation and thereafter
to place it for grant of sanction or otherwise to the Government. The
Government, in turn, has the responsibility to go through the material
and thereafter to come to a conclusion as to whether sanction is to be
granted or not. The grant of sanction is a very important facet in the
matter of prosecution of civil servants. It is intended to ensure that
there are no frivolous prosecutions that are carried out. It is for this
reason that the question of grant of sanction becomes crucial.
Therefore, once the Lokayukt has performed its duty of submitting its
report to the Government, its role ends. It is the discretion of the
Government to grant sanction or not. When such a sanction has been
refused, the Lokayukt could not challenge the said order.
8. Hence, for all the aforesaid reasons, we find no good ground to
entertain this petition. Accordingly, the writ petition being devoid of
merit is dismissed.
(RAVI MALIMATH) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
RJ
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 12-12-2022
11:07:46
