Atul Devdiya vs The State Of Madhya Pradesh
2024 Latest Caselaw 14135 MP

Madhya Pradesh High Court

Atul Devdiya vs The State Of Madhya Pradesh on 14 May, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                             1


     IN THE HIGH COURT OF MADHYA PRADESH
                 AT JABALPUR
                         BEFORE
      HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                 ON THE 14th OF MAY, 2024
                 WRIT PETITION No. 6616 of 2024

BETWEEN:-
ATUL    DEVDIYA   S/O
DEVENDRA DEVADIYA,
AGED ABOUT 43 YEARS,
OCCUPATION:
BUSINESSMAN    PURVA
JANPAD     ADHYAKSH
JANPAD    PANCHAYAT
KESLI TEHSIL KESLI
DISTRICT       SAGAR
(MADHYA PRADESH)
                                               .....PETITIONER
(BY SHRI RAKESH KUMAR KESHARWANI - ADVOCATE)

AND
1.   THE    STATE   OF
     MADHYA PRADESH
     THROUGH       THE
     PRINCIPAL
     SECRETARY HOME
     DEPARTMENT
     DISTRICT   BHOPAL
     (MADHYA PRADESH)
2.   THE   COLLECTOR
     SAGAR    DISTRICT
     SAGAR    (MADHYA
     PRADESH)
3.   SHRI KAILASH S/O
     SHRI    JEEVANLAL
     KURMI OLD TEHSIL
     PRESENT ADDRESS
     PADSTHAPNA
     TEHSIL    RAIPURA
     DISTRICT (MADHYA
                                           2


    PRADESH)
                                                              .....RESPONDENTS
(BY SHRI ROHIT JAIN - GOVERNMENT ADVOCATE)

          This petition coming on for admission this day, the court passed the
following:
                                         ORDER

1. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs :-

i) This Honourable Court be pleased to direct/ issue a writ of Mandamus to the Respondents' for granting permission to file the complaint case against the respondent No.2, as per the application dated 23.2.2024 (Annexure P/10) in the interest of Justice.

ii) The Honourable Court be also pleased to direct the respondents to decide the representation filed before them expeditiously within stipulated time period fixed by this Honourable court.

iii) Any other writ/order//direction/ relief, as deemed fit and proper in the circumstances of this case, along with the cost of this writ petition, be also awarded.

2. By this petition, the petitioner is seeking a mandamus for respondents to grant sanction under sanction 197 Cr.P.C.

3. The Supreme Court, in the case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, reported in (1997) 7 SCC 622 has held as under

:-

"22. Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words "shall" or "must". But this is not conclusive as "shall" and "must"

have, sometimes, been interpreted as "may". What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the statute in which the "duty" has been set out. Even if the "duty" is not set out clearly and specifically in the statute, it may be implied as correlative to a "right".

23. In the performance of this duty, if the authority in whom the discretion is vested under the statute, does not act independently and passes an order under the instructions and orders of another authority, the Court would intervene in the matter, quash the order and issue a mandamus to that authority to exercise its own discretion.

**** **** **** ****

32. By issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives 4 W.P.No.31939/2023 to the Secretary and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Secretary was not allowed to consider whether it would be feasible to prosecute the appellant; whether the complaint of Harshadrai of illegal gratification which was sought to be supported by "trap" was false and whether the prosecution would be vexatious particularly as it was in the knowledge of the Government that the firm had been blacklisted once and there was demand for some amount to be paid to the Government by the firm in connection with this contract. The discretion not to sanction the prosecution was thus taken away by the High Court.

33. The High Court put the Secretary in a piquant situation. While the Act gave him the discretion to sanction or not to sanction the prosecution of the appellant, the judgment gave him no choice except to sanction the prosecution as any other decision would have exposed him to an action in contempt for not obeying the mandamus issued by the High Court. The High Court assumed the role of the sanctioning authority, considered the whole matter, formed an opinion that it was a fit case

in which sanction should be granted and because it itself could not grant sanction under Section 6 of the Act, it directed the Secretary to sanction the prosecution so that the sanction order may be treated to be an order passed by the Secretary and not that of the High Court. This is a classic case where a brand name is changed to give a new colour to the package without changing the contents thereof. In these circumstances, the sanction order cannot but be held to be wholly erroneous having been passed mechanically at the instance of the High Court."

4. Thus, this Court cannot issue any mandamus to the sanctioning authority to grant sanction for the simple reason that this Court cannot take away the discretion of sanctioning authority to grant or not to grant sanction.

5. Accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

HEMANT SARAF HS 2024.05.15 18:23:21 +05'30'