Madhya Pradesh High Court
Ravikant Dwivedi vs The State Of Madhya Pradesh on 3 April, 2023
Author: Virender Singh
1
MCRC No. 50285 of 2022
I N T H E H IG H C O U RT O F M A D H YA P R A D E S H
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VIRENDER SINGH
MISC. CRIMINAL CASE No. 50285 of 2022
BETWEEN:-
1. RAVIKANT DWIVEDI, S/O LATE SHRI S.C.
DWIVEDI, Occ : RETIRED GOVT. SERVANT,
AGED 68 YEARS, R/O G1/3, GULMOHAR
COLONY, BHOPAL (M.P.)
2. MEERA DWIVEDI, W/O RAVIKANT
DWIVEDI, Occ : BUSINESS, AGED-ADULT,
R/O G1/3, GULMOHAR COLONY, BHOPAL
(M.P.)
3. ANKIT DWIVEDI, S/O RAVIKANT DWIVEDI,
Occ : BUSINESS, AGED-ADULT, R/O G1/3,
GULMOHAR COLONY, BHOPAL (M.P.)
4. DR. ABHISHEK DWIVEDI, S/O RAVIKANT
DWIVEDI, Occ : DOCTOR, AGED-ADULT,
R/O G1/3, GULMOHAR COLONY, BHOPAL
(M.P.)
..... PETITIONERS
(BY SHRI MANOJ SHARMA - SENIOR COUNSEL WITH
SHRI AYUR JAIN - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR
SPECIAL POLICE ESTABLISHMENT
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 4/3/2023
4:46:28 PM
2
MCRC No. 50285 of 2022
LOKAYUKTA BHOPAL (MADHYA
PRADESH)
2. VIVEK GOUR SPECIAL PUBLIC
PROSECUTOR F-1 SPECIAL COURT,
PREVENTION OF CORRUPTION ACT,
BHOPAL (MADHYA PRADESH)
3. S.P. LOKAYUKTA THROUGH SPECIAL
POLICE ESTABLISHMENT LOKAYUKTA,
BHOPAL (MADHYA PRADESH)
..........RESPONDENTS
(SHRI ABHIJEET AWASTHI - SPECIAL PUBLIC PROSECUTOR
FOR RESPONDENT No.3)
.........................................................................................................................................................................................................................................................................................................................................................................................................................................
Reserved on : 16.02.2023
Pronounced on : 03.04.2023
.........................................................................................................................................................................................................................................................................................................................................................................................................................................
This petition having been heard and reserved for orders,
coming on for pronouncement this day, Hon'ble Shri Justice
Virender Singh pronounced the following :
ORDER
The petitioners have invoked inherent powers of this Court
conferred under Section 482 of CrPC to quash two orders passed on
the same date i.e. 01.10.2022 by Special Judge designated under the
Prevention of Corruption Act, 1988, Bhopal (M.P.) whereby following
as many as eight applications preferred by the petitioners have been
dismissed :
(i) Four applications preferred by each of the
petitioners separately for the same purpose and relief to
restrain Shri Vivek Gaur (Respondent No.2), Special
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MCRC No. 50285 of 2022
Public Prosecutor (for short 'SPP'), Special Police
Establishment, Bhopal to appear in the Court of Special
Judge, Prevention of Corruption Act, 1988 (hereinafter
referred to as the PC Act or the Act, 1988) in any
proceedings related to Crime No.52/2014 registered at
Special Police Establishment (for short 'SPE' and
commonly known as Lokayukt Police), Police Station,
Bhopal for the offence under Section 13(2) read with
Section 13(1)(e) of the PC Act, 1988.
(ii) Two applications preferred by petitioner nos.1 and 3
namely R.K. Dwivedi and Ankit Dwivedi separately to
restrain SPP Shri Gaur (Respondent No.2) to appear in the
case filed by them under Section 156(3) of CrPC.
(iii) Two applications preferred by petitioner nos.1 and 3
namely R.K. Dwivedi and Ankit Dwivedi separately to
implead SPP Shri Gaur as a party in person in their
applications for restrainment of his appearance in hearing
of their applications filed u/s 156(3) of CrPC.
2. A prayer is also sought for a direction to the Directorate of
Prosecution to initiate disciplinary proceeding against Shri Gaur for
acting contrary to law.
3. Thus, instead of filing one common application for the same
prayer, all the petitioners, who being husband, wife and sons, belong
to the same family, chose to file separate applications for identical
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MCRC No. 50285 of 2022
relief, but have jointly filed this one composite petition against two
separate orders for the reasons beyond comprehension.
4. The background facts and circumstances in which the present
petition has arisen, to the extent they are necessary for adjudication of
the present petition, in chronological order are set out hereinafter:
5. Petitioner No.1 Ravikant Dwivedi, a State Administrative
Service (SAS) officer (now retired) was serving as Joint
Commissioner (Revenue) to the Govt. of Madhya Pradesh at the
relevant point of time, whereas petitioner Nos.2, 3 and 4 are his wife
and 2 sons respectively.
6. The SPE (Lokayukt Police), Bhopal received a complaint from
one Nawaz Qureshi to the effect that petitioner No.1 has amassed
wealth disproportionate to his known sources of income. This
complaint was inquired into and a raid was conducted in his house
located at Gulmohar Colony, Bhopal. It was found that he, in his own
name and in the names of his wife and sons, amassed wealth
disproportionate to his known sources of income which was 53.39%
more than his known source of income. Accordingly, an FIR being
Crime No.52/2014 dated 29.01.2014 came to be registered at SPE
Police Station, Bhopal against him (petitioner No.1 Ravikant
Dwivedi).
7. Initially, Inspector (SPE) Umesh Tiwari investigated the case.
On the analysis of the evidence collected and the explanation
submitted by the petitioners, considering that no case is made out, he
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MCRC No. 50285 of 2022
submitted a report dated 22.06.2016 recommending closure of the
case to the SP, SPE for perusal and further action. The SP, SPE, vide
communication dated 05.09.2016, sought opinion from Special Public
Prosecutor/District Prosecution Officer (SPP/DPO) Shri Gaur, who
was engaged by the SPE to conduct trials of special cases and to
render legal advice to the Department as and when sought for. On
scrutiny of the report prepared by Shri Tiwari, he (Shri Gaur)
recorded his disagreement and opined for further Investigation on as
many as '25 points'. Consequently, the Investigating Officer was
instructed to carry out further investigation to ensure that all the
aspects relating to the matter are investigated thoroughly.
8. During pendency of the investigation, the Lokayukt directed to
remove Shri Tiwari from the investigation vide order dated
09.03.2017 for the multiple factors/reasons, which find mention in the
note-sheet drawn on 08.03.2017 by Shri B.S. Parmar (Legal Advisor-
III), Lokayukt Organisation.
9. Shri Narendra Singh Rathore (Dy.S.P.) was assigned the
investigation sometime in the month of March, 2017 who, in turn,
submitted a supplementary closure report to the SP, SPE who
forwarded it to the Headquarter of the SPE, Bhopal on 17.04.2018 for
further process before the higher officials at the Headquarter. The
higher officials recorded their dissatisfaction with this supplementary
closure report as it did not appear to have been based on cogent and
sufficient reasons and substantiated by the provisions of law.
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MCRC No. 50285 of 2022
10. Meanwhile, due to transfer of Shri Narendra Singh Rathore
(Second Investigating Officer), Shri Sanjay Shukla was deputed to
investigate the case on 13.04.2018. He was instructed to initiate
proper investigation in accordance with law vide Reference No.3100
dated 26.05.2018. He issued multiple notices under Section 91 and
Section 160 of CrPC for procuring documents and for recording
statements. He thoroughly investigated the case. On evaluation and
analysis of the evidence collected, he submitted a report
recommending submission of charge sheet.
11. On analysis of the material collected, finding sufficient
evidence to prosecute the petitioners, the SPE filed the charge sheet
against them on 27.08.2022, which is pending trial. The trial was
being conducted by SPP Shri Gaur. Feeling themselves aggrieved, the
petitioners filed aforesaid multiple applications, to restrain him to
conduct the trial as well as to contest their applications filed under
Section 156(3) of CrPC and also to implead him as respondent in their
applications filed to restrain him to appear and contest their
applications filed under Section 156(3) of CrPC.
12. The substratum of the grounds taken by the petitioner is that
since Mr. Gaur has participated in the investigation, which is not
permissible in law rather contrary to the law as well as the dictum of
the Hon'ble Supreme Court rendered in R. Sarla v T.S. Velu (2000) 4
SCC 459, M.C. Mehta (Taj Corridor Scam) v Union of India:
(2007) 1 SCC 110 and Abhinandan Jha v Dinesh Mishra AIR 1968
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MCRC No. 50285 of 2022
SC 117, he should be restrained from appearing in any proceeding
related to Crime No.52/2014 registered against the petitioner and also
in the proceedings initiated by them under Section 156(3) of CrPC. To
say that Shri Gaur had taken part in the investigation, ld. Sr. Counsel
Shri Sharma referred to that he (Shri Gaur) had scrutinized the closure
report submitted by the 1st Investigating Officer and directed further
investigation in the case. It is submitted that since Shri Gaur, who was
nowhere in the hierarchy of investigating agency, got involved in the
investigation without jurisdiction, and while doing so, he has become
a part to the investigation and biased towards the petitioners, he
should be restrained to appear in the case.
13. It is further submitted that the role of a Public Prosecutor starts
when the charge sheet is filed. He has no role to play outside the court
of law. In the present case, the Public Prosecutor has given opinion
after the opinion of closure was formed by the investigating officer
and, thus, the said action at his behest is illegal and infested with
malice.
14. It is also averred that the principle of law laid down in R.
Sarala's case (supra) has been violated in the present case. It is held
therein that 'Investigation and prosecution are two different facets in
the administration of criminal justice. The role of a Public Prosecutor
is inside the court, whereas investigation is outside the court.
Normally the role of a Public Prosecutor commences after the
investigating agency presents the case in the court on culmination of
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MCRC No. 50285 of 2022
investigation. Its exception is that the Public Prosecutor may have to
deal with bail applications moved by the parties concerned at any
stage. Involving the Public Prosecutor in investigation is unjudicious
as well as pernicious in law. At any rate no investigating agency can
be compelled to seek the opinion of a Public Prosecutor under the
orders of the court. Here is a case wherein the investigating officer
concerned is directed by the High Court to take back the case from
the court whereas it was laid by him after completing the
investigation and he is further directed to consult the Public
Prosecutor and submit a fresh charge-sheet in tune with the opinion of
the Public Prosecutor. Is such a course permissible in law.' The Court
answered this question in negative holding that the Court cannot
direct the Investigating Officer to take opinion of Public Prosecutor.
15. Learned counsel for the respondents, on the other hand, has
supported the impugned orders and submitted that the scrutiny of the
investigation done by the SPP is not part of the investigation and that
points given by him were not binding on the investigating agency. It
is also submitted that since Mr. Gaur has not taken part in the
investigation, he should neither be barred from appearance nor be
impleaded as one of the respondents as prayed for.
16. The learned trial Court dismissed all the applications observing
that the IO was well within its power to seek legal advice from any of
the expert in the field and that there is no provision in the Code of
Criminal Procedure conferring powers to the trial Court to restrain the
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MCRC No. 50285 of 2022
Public Prosecutor to appear and conduct trial or any other proceedings
pending before the criminal Court.
17. We have heard the ld. counsels for the parties and perused the
material placed on record.
18. The entire argument of the ld. Senior Counsel is based on the
conception that since SPP Mr. Gaur has scrutinized the charge
sheet/report and has given contrary opinion to the opinion submitted
by the Investigating Officer, he has become a part to the investigation
and biased towards the petitioners; therefore, he should be restrained
to appear in the case.
19. The law is never intended to give absolute or unfettered power
to an Investigating Officer which may generate perilous results. The
law makers were aware that in such a situation, there will be every
possibility of the Investigating Officer being autocratic. It reflects
from a plain reading of the scheme of the Code of Criminal Procedure
that to avoid this situation and to improve transparency and also to
curb the possibility of any such autocracy of all the stakeholders of
the criminal justice system, such as the police, the prosecution, and
the courts, several checks and balances have been created over their
powers. A conjoint reading of Sections 36 and 173(3) of CrPC would
reveal that after completing investigation, such a requirement has
been made in law that before forming final opinion, the Investigating
Officer has to submit a report along with his opinion to his superior
officer of the police, who may direct the in-charge of the police
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MCRC No. 50285 of 2022
station to make further investigation. The Hon'ble Supreme Court has
recognized this status of law in the cases relied upon by the ld. Senior
Counsel for the petitioners himself (R. Sarla and M.C. Mehta)
(supra). The Hon'ble Supreme Court has made it clear that before
forming final opinion, the Investigating Officer as well as his superior
officer are free to seek advice on their own volition from anyone they
think it proper. What is prohibited is to give direction to the
Investigating Officer either by the Court or by the prosecuting agency
to act in any particular manner. There is no conflict between the
parties on this proposition of law (ground 'K' of the petition).
20. Here we would like to quote para 8 of R Sarla's judgment
(supra) which is as follows:
8. The question here is not simply whether an
investigating officer, on his own volition or on his own
initiative, can discuss with the Public Prosecutor or any
legal talent, for the purpose of forming his opinion as to
the report to be laid in the court. Had that been the
question involved in this case it would be unnecessary to
vex our mind because it is always open to any officer,
including any investigating officer, to get the best legal
opinion on any legal aspect concerning the preparation of
any report. But the real question is, should the High Court
direct the investigating officer to take opinion of the
Public Prosecutor for filing the charge-sheet?
(Emphasis supplied)
21. In this regard, reference may also be made to the circulars
issued by the Govt. of M.P. which read thus :
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MCRC No. 50285 of 2022
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Signing time: 4/3/2023
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MCRC No. 50285 of 2022
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MCRC No. 50285 of 2022
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Signing time: 4/3/2023
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MCRC No. 50285 of 2022
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22. In the present case, following the aforestated due procedure,
before filing the charge-sheet in the Court, the 1 st IO submitted its
report with his opinion of closure of the case to his superior; i.e. the
S.P., SPE, who sought advice from the Special Public Prosecutor Shri
Gaur who was having experience to deal with such cases being
Special Public Prosecutor of the Lokayukt Organization. Following
the instructions, Mr. Gaur scrutinized the report prepared by the IO
and submitted a report. This entire process was internal deliberation
and discussion taken place before forming final opinion by the
Investigating Officer.
23. The report initially submitted by the Investigating Officer to his
superior with his view cannot be termed 'final opinion' of the
Investigating Officer as find mention in Section 173 of CrPC. It can
only be termed as a 'process of forming opinion' taken place during
preparation of final opinion; which is very well permissible in law,
approved by the Apex Court in R. Sarla and M.C. Mehta cases
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 4/3/2023
4:46:28 PM
MCRC No. 50285 of 2022
(supra) and mandated by the circulars issued by the State
Government.
24. It has been rightly argued by the learned counsel for the
respondents that the scrutiny report submitted by Shri Gaur on the
request of SP, SPE was not a part of the investigation nor was it
binding on the investigating agency. It was only an advice of an
expert. Public prosecutors can just give an opinion. Whether to accept
that opinion or not is at the discretion of investigating agency. It was
up to the investigating agency to follow or to abide by it or not. It is
just like that before taking a final decision, a person seeks legal
advice from the experts in the field and nothing more than that. The
role of the public prosecutor at an investigation stage is just advisory.
It cannot be said that merely by submitting a report on the request of
superior officer of the investigating officer, SPP/DPO becomes a
party to the investigation.
25. In the case on hand, Shri Gaur has only scrutinized the primary
report prepared by the IO and submitted its report. He didn't do
anything other than that. The record does not reflect that the
petitioners were known to him at that point of time. The allegation of
bias are based only on that report; which he had submitted while
performing his duty for which he was under obligation and was abide
by law.
26. Further, when a public prosecutor appears before the court, he
represents the State and not the investigating officer or an agency in a
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 4/3/2023
4:46:28 PM
MCRC No. 50285 of 2022
criminal proceeding. Besides, in the criminal justice system, a Public
Prosecutor is only a presenting officer and not an adjudicating officer.
He has no role to play in the decision making process which lies
solely in the domain of a judge. It is not the Public Prosecutor who is
going to decide the fate of the petitioners whether they are guilty or
not. He has only to present the evidence collected during investigation
in its original form. He can neither deviate from the evidence
collected during investigation nor can invent or introduce any new
thing to the trial. Even if he feels that some additional evidence is
required for proper adjudication of the case, he can only make a
request to the Court, which can be very well opposed by the other
side. Again, it is for the Court to decide such questions after hearing
both the sides. Therefore, in our thoughtful opinion, he is not in a
position to influence the judgment even if he is bias or has malice or
grudges towards the accused.
27. A bare perusal of Section 482 of CrPC makes it crystal clear
that the object of exercise of power under this section is to prevent
abuse of process of court and to secure ends of justice. There are no
hard-and-fast rules that can be laid down for the exercise of the
extraordinary jurisdiction, but exercising the same is an exception, but
not a rule of law. Such powers have to be carefully exercised so that
no injustice is caused to the parties. So far as regards the injustice in
concerned, it is to be held that it should be of a grave and not of a
trivial character and it should be palpable and clear and not doubtful
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Signed by: VINOD
VISHWAKARMA
Signing time: 4/3/2023
4:46:28 PM
MCRC No. 50285 of 2022
and there should exist no other provision of law by which the party
aggrieved could have sought relief. Under Section 482 of the CrPC,
the High Court does not function as a Court of Appeal or Revision. It
is no doubt true that there can be no straitjacket formula or defined
parameters to enable a court to invoke or exercise its inherent powers.
It will always depend upon the facts and circumstances of each case.
The courts have to be very circumspect while exercising jurisdiction
under Section 482 CrPC.
28. Thus, on perusal of the material placed on record and having
carefully gone through the impugned orders passed by the Special
Judge, we are of the considered opinion that in this case, the report
submitted by the 1st IO to his superior recommending closure of the
case was not 'final report' as mentioned in Section 173 of CrPC. The
investigating agency as well as the Special Public Prosecutor has
sought/rendered opinion in accordance with law. In this process, no
illegality has been committed by them. There is no valid ground to
consider that the SPP worked in this case with malice. The doubts of
malice expressed by the petitioners are baseless. The findings
recorded by the Special Court while dismissing the applications
preferred by the petitioners are correct. There appears to be no
perversity or illegality in both the orders under challenge and the
same do not warrant interference by this Court under the inherent
powers.
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Signed by: VINOD
VISHWAKARMA
Signing time: 4/3/2023
4:46:28 PM
MCRC No. 50285 of 2022
29. Thus, the petition devoid of any merit deserves dismissal and is,
accordingly, dismissed.
(SHEEL NAGU) (VIRENDER SINGH)
JUDGE JUDGE
vinod
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 4/3/2023
4:46:28 PM
