Madhya Pradesh High Court
B.S. Sharma vs The State Of Madhya Pradesh on 9 March, 2022
Author: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 9th OF MARCH, 2022
MISC. CRIMINAL CASE No. 1016 of 2016
Between:-
B.S. SHARMA S/O SHRI R.D. SHARMA , AGED
ABOUT 40 YEARS, 133 ROSE PLATINUM PARK
MATA MANDIR T.T. NAGAR BHOPAL (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ASHOK LALWANI, ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH COLLECTOR
BHOPAL (MADHYA PRADESH)
2. J.S. RAJPUT S/O LATE SHRI GANESH SINGH
R A J P U T S.H.O. POLICE STATION SHAHPURA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SANJEEV SINGH PARIHAAR, PANEL LAWYR)
(BY MS. SMITA VARMA, ADVOCATE FOR RESPONDENT NO.2.)
This petition coming on for admission this day, the court passed the
following:
ORDER
With the consent of the parties, the matter is finally heard.
The present petition under Section 482 of the Cr.P.C. has been filed
challenging the order dated 25.08.2015 passed by Additional Sessions Judge,
Bhopal in Criminal Revision No.608/2014 arising out of order dated 02.09.2014
passed by JMFC, Bhopal (M.P.) wherein, the private complaint filed by the
petitioner has been dismissed.
It is alleged that the petitioner is the distributor and the proprietor of Nenika
Gas Agency and is President of Akhi Bhartiya Upbhokta Congress, Bhopal. It is
pointed out that on 01.11.2008, respondent no.2 has got registered a criminal case
under Section 3/7 of Essential Commodities Act at Crime No.246/2008 against the
petitioner wherein, after completion of the investigation, the charge sheet was filed
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before the Court of CJM, Bhopal. The petitioner alongwith others were discharged
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Date: 2022.03.16 13:26:17 IST by the learned trial court finding no evidence against them. The learned court has
held that the respondent no.1 was not competent to seize the Gas Cylinders for
violation of Liquefied Petroleum Gas (Regulation of Supply and Distributions)
Order, 2000. The truck was seized. The complaints were made to the Election
Commission as Vidhan Sabha Elections were going on. Home Department has
taken up the matter and the Director General of Police, the Deputy Inspector
General of Police, Bhopal Range, Bhopal has conducted an inquiry into the matter
and found the allegations made against the petitioner are false and frivolous.
In pursuance to the report submitted to the Deputy General of Police, it was
directed for closing the case. Despite of the same, the matter continued and the
investigation was being carried out and charge sheet was filed in the matter. After
getting discharged from the trial court, the petitioner has filed a private complaint
under Section 200 of the Cr.P.C alleging offences under Sections 182, 211 and
500 of the IPC against the respondent no.2. The learned trial court without
appreciating the material evidences available on record has dismissed the complaint
on the ground that sanction under Section 197 of the Cr.P.C. is necessary and no
prima facie case is made out for the offence punishable under Sections 182 and
211 of the IPC. So far as offence punishable under Section 500 of the IPC is
concerned, if a person is allow to file a criminal complaint against the police
personnel after the acquittal or discharge then it will amount to encouraging such
litigations and the police will not be able to discharge their duties properly. In such
circumstances, private complaint filed by the present petitioner was dismissed
and a criminal revision being filed against the aforesaid order passed by the learned
JMFC, Bhopal, the revisional court vide its order dated 25.08.2015 has upheld the
order passed by the learned JMFC, Bhopal and has rejected the private complaint.
It is argued that once the authority who has conducted investigation into the
matter was not competent to do it and with a malafide intention the entire
proceedings were initiated against the petitioner just to harass and disrepute him, in
such circumstances, offence under Sections 500 and 182 of the IPC are clearly
made out. It is argued that in case, the proceedings have taken place maliciously
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and by fraud then there is no requirement of any sanction under Section 197 of the
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Cr.P.C. for prosecution as the police authority has not acted fairly and in discharge
Date: 2022.03.16 13:26:17 IST
of his duties. Placing reliance upon the judgment passed by the Hon'ble Supreme
Court in the case of Ravindra Singh Vs. Sukhbir Singh reported in AIR 2013
SC 1048 wherein, placing reliance upon the earlier judgment passed by the
Hon'ble Supreme Court in the case of West Bengal State Electricity Board Vs.
Dilip Kumar Ray reported in AIR 2007 SC 976, the court has held that
"Malice in the legal sense imports (I) the absence of all elements
of justification, excuse or recognized mitigation, and (2) the presence
of either (a) an actual intent to cause the particular harm which is
produced or harm of the same general nature, or (b) the wanton and
wilful doing of an act with awareness of a plain and strong likelihood
that such harm may result.
MALICE consists in a conscious violation of the law to the
prejudice of another and certainly is has different meaning with
respect to responsibility for civil wrongs and responsibility for crime.
Malicious prosecution has further been defined as a desire to
obtain a collateral advantage. The principles to be borne in mind in
the case of malicious prosecution that the reasonable and probable
cause must be such as would operate on the mind of a discreet and
reasonable man; 'malice' and 'want of reasonable and probable
cause.' have reference to the state of the defendant's mind at the date
of the initiation of criminal proceedings".
In such circumstances, it is argued that the Malicious prosecutions which
amounts to harassment to the applicant like petitioners and after due inquiry and
investigation into the matter even the superior authorities have directed for closure
of the case and learned trial court has appreciated the entire evidence available on
record, collected during the investigation by the police authorities and they have
arrived to the conclusion that no case is made out against the petitioner and the
police authority was not competent to register a case and conduct the investigation.
In such circumstances, when the reputation of the petitioner is being put on stake
then definitely offence under Sections 500 and 182 of the IPC are made out. The
cognizance should have been taken by the learned trial court, the important aspects
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Date: 2022.03.16 13:26:17 IST of the case has not been looked into by the learned trial court and the revisional
court.
In view of the aforesaid aspect, the criminal complaint should have been
registered and sanction for prosecuting the respondent no.2 should have been
granted in the matter. He has further placed reliance upon the judgement passed by
the Hon'ble Supreme Court in the case of Amal Kumar Jha Vs. State of
Chhatisgarh and Another reported in AIR 2016 SC 2082 wherein, the factum
of sanction under Section 197 (1) of the Cr.P.C. was taken into consideration and
it was held that when the government employee is not discharging his duties and is
virtually not on his official duties then any act done by him to disrepute the
applicant like petitioner then the criminal case can be registered without any
sanction. It was further observed that if an act has been done not in official
discharge of his duties then no sanction is required in the matter. Further placing
reliance upon the order passed in the case of Z.U.Ahmad and Another Vs. State
of Uttar Pradash and Another reported in 1998 CRI. L.J. 2100 wherein, the
similar analogy was been followed. He has further brought to the notice of this
court, the order passed by this court in the case of Sunil Dubey and Others Vs.
State of Madhya Pradesh dated 16.09.2021 wherein, this court has allowed the
M.Cr.C. and has set aside the order passed in the criminal revision. In such
circumstances, the criminal complaint should have been registered against the
delinquent employee.
Per contra, counsel appearing for the respondents have vehemently opposed
the contentions and have argued that the actual facts have not been brought to the
notice of this court. There are material suppression of facts in the entire petition. It
is argued that the entire petition is based upon the information submitted by the
Director General of Police, Bhopal Range on 14.11.2008 report addressing to
Director General of Police whereby, he has directed for closing the case against the
petitioner. The information which has been suppressed is that the DPO, CID,
Police Headquarter, Bhopal after receiving a letter from the DGP, Bhopal on
14.01.2009, an inquiry was again conducted by the DPO, CID Police Headquarter,
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Bhopal. The opinion was given on 16.01.2009, wherein, it was clearly mentioned
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that the petitioner and others have jointly and severally committed offence
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punishable under Section 3/7 of Essential Commodities Act. The inquiry report
was produced before the DGP, Bhopal and DGP, Bhopal has issued a letter
addressing to the Superintendent of Police, Bhopal for taking action against the
accused persons vide letter dated 03.09.2009. Thereafter, the investigation was
complete and the charge sheet was filed in the matter. The respondent no.2 was
working under the subordination of the superior authorities and was duty bound to
comply with the orders passed by the superior authorities. It is argued that once
the directions have been given by the superior authorities for filing of the charge
sheet in the matter against the petitioner, on the basis of the inquiry conducted by
the DPO, CID then he was duty bound to file the charge sheet before the learned
trial court. There is nothing on record to demonstrate that he has acted maliciously
or in a most mechanical manner. It is further submitted that no occasion to file a
criminal complaint was made out against the present applicant as completion of
investigation and filing of charge sheet against the petitioner was his duty and was
in pursuance to the inquiry done by the CID. He has acted in pursuance to the
directions given by the Superintendent of Police, Bhopal; therefore, no sanction for
prosecution is made out and no case is made out for entertaining a private
complaint against the respondent no.2.
Some other fact has also been suppressed that against the order dated
16.12.2009 passed by trial court, a criminal revision is also being filed by the State
Government against the order of the discharge of the petitioner which is pending
consideration as criminal revision no.599/2011. Another suppression which has
been made is that after receiving summons from the Sessions Court, Bhopal, the
petitioner has filed a 482 petition before this Hon'™ble court being
M.Cr.C.No.4455/2013 for quashment of the order dated 13.03.2013 passed by the
revisional court which is still pending before this court. By virtue of order date
28.01.2014 passed in M.Cr.C. the proceedings before the Sessions Court is
stayed. The aforesaid material facts have been suppressed from this court. The
petitioner has not approached this court with clean hands and by suppressing
material information with respect to the directions given to respondent no.2 by the
superior authorities, which was based upon the inquiry conducted by the
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Date: 2022.03.16 13:26:17 IST DPO/CID in the matter. Therefore, the order passed by the learned trial court duly
affirmed by the sessions court was just and proper. They does not call for any
interference in the present writ petition. They have prayed for dismissal of the writ
petition.
Heard the learned counsel for the parties and perused the record.
On perusal of the record, it is not disputed that an offence under Essential
Commodities Act was registered against the petitioner wherein, after due inquiry
into the matter and the charge sheet was filed and the petitioner was discharged by
the learned trial court. It is further not disputed that the investigation being carried
out by the respondent no.2 in the matter. Filing of charge sheet before the
competent court was on the basis of the directions issued by the Superintendent of
Police, Bhopal to him. The DPO/CID has got conducted an inquiry into the matter
and has found substance in the complaint made against the petitioner and has
directed for completion of investigation and filing of the charge sheet. The inquiry
report clearly reflects that the case under Essential Commodities Act was made out
against the petitioner. The aforesaid orders passed by the Superior authorities i.e.
DPO, CID and Superintendent of Police, directing the respondent no.2 to file a
charge sheet against petitioner has been suppressed by the petitioner in this
petition. The case law which has been relied upon by the petitioner are totally on
different facts and circumstances therefore, they are not applicable to the present
case. The authority has acted in performance of his duty and on the instructions of
the superior Officers. It is a settled law that once the authorities have acted in
pursuance to the duties interested to him and has also complied with the orders
passed by the superior authorities then no case for defamation or sanction for
prosecution is made out against him. He has acted in compliance of the directions
given by the senior authorities and was duty bound to file a charge sheet against the
petitioner.
In such circumstances, no illegality appears to have been committed by the
respondent no.2, the learned trial court as well as the revisional court have passed a
well reasoned and justified order. Even, if it is assumed that the authorities are not
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having any power to register a case or investigate into the same but the fact remains
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that the exercise has been done on the basis of the direction given by the superior
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authorities. In such circumstances, no case for interference in the orders passed by
the trial court duly affirmed by the revisional court is made out.
Petition sans merits and is hereby dismissed.
(VISHAL MISHRA)
JUDGE
Sha
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Digitally signed by SHALINI LANDGE
Date: 2022.03.16 13:26:17 IST
