Madhya Pradesh High Court
Qasim Ali vs (Deleted As Per Court Order Dated ... on 14 October, 2024
Author: Pranay Verma
Bench: Pranay Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
WRIT PETITION No. 12475 of 2024
QASIM ALI
Versus
(DELETED AS PER COURT ORDER DATED 09/05/2024) THE STATE
OF MADHYA PRADESH AND OTHERS
_________________________________________________________________
Appearance:
Shri Ibrahim Kannodwala - Advocate for the petitioner.
Shri Vaibhav Jain, learned counsel for the respondents No.2 & 3.
Shri R.S. Chabbra, learned Senior counsel with Shri Manas Kumar
Kashiv and Shri Moinudding Algaus Shaikh, learned counsel for the
respondent No.4.
_________________________________________________________________
ORDER
(Reserved on 23/9/2024)
(Pronounced on 14/10/2024)
1. This petition under Article 226 of the Constitution of India has been
preferred by the petitioner being aggrieved by the order dated 12/10/2023
(Annexure P/1) passed by the Lokayukt, Madhya Pradesh, respondent No.2
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whereby the complaint made by him has been declined to be entertained on
the ground that the same has been made a private person which is beyond the
purview of Section 7 of the M.P. Lokayukt Evam Up-lokayukt, Adhiniyam,
1981 (hereinafter referrred to as the 'Adhiniyam, 1981') and that the same is
also barred by time.
2. The petitioner made a complaint on 13/9/2023 before respondent No.2
in respect of certain illegalities having been committed by various office
bearers of respondent No.4. Therein it was stated by him that a sale deed has
been executed by them on 27/11/2015 in respect of property of the Wakf
illegally. The sale consideration of Rs.20,20,000/- has been misappropraited
by them. He acquired knowledge of the same on 4/2/2023 itself hence has
filed the complaint. Prayer was made for taking suitable action against office
bearers of respondent No.4. The said complaint has been dismissed by the
impugned order for the reasons as aforesaid.
3. Learned counsel for the petitioner submits that respondent No.2 has
failed to appreciate that the accused person namely Mulla Hasan Nawab is
Mutamalli / Manager of respondent No.4 Wakf and is a public servant as per
sub-section (2) of Section 101 of the Wakf Act. The period of limitation would
commence from the date of acquiring knowledge of the offence as per the
limitation provided under the criminal law and not as per the provisions of the
Adhiniyam, 1981. The petitioner acquired knowledge of the fraudulent sale
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deed on 23/1/2022 hence the complaint made by him was well within time.
The illegal acts of respondent No.4 and its office bearers ought not to be
permitted to go unpunished.
4. Reliance has been placed by him on the decision of this Court in Dev
Vrath Mishra V/s. State of M.P. & Anr. (2011) 2 MPLJ 365, order dated
12/10/2022 passed in Writ Appeal No.995/2022 (Smt. Meera Devi Saxena V/s.
State of M.P. & Ors.), order dated 30/10/2017 passed in W.P.No.2964/2017
(Smt. Jyoti Narvariya & Ors. V/s. State of M.P. & Ors) and of the Apex Court
in State of Rajasthan V/s. Sanjay Kumar & Ors. (1998) 5 SCC 82 and
Purushottam Bhai Magan Bhai Patel & Ors V/s. State of Gujarat & Ors.
(2005) 7 SCC 431.
5. Per contra, learned counsel for respondents No.2 and 3 as well as
learned Senior counsel for respondent No.4 have submitted that the period of
limitation for filing a complaint is five years from the date when the offence is
alleged to have been committed and not from the date of acquiring knowledge.
The Adhiniyam, 1981 is a special enactment and would over ride general
criminal law. The respondent No.4 and its office bearers are not public
servants for the purpose of the Adhiniyam, 1981 though they may be so under
the Wakf Act hence proceedings against them cannot be initiated and
continued under the Adhiniyam, 1981. Reliance has been placed on the
decision of State of Maharashtra V/s. Laljit Rajshi Shah (2000) 2 SCC 699,
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Mujeebunissa Begum v/s. Government of A.P. (2014) SCC Online A.P. 189,
Punjab Land Development & Reclamation Corporation Ltd. V/s. Presiding
Officer Labour Court (1990) 3 SCC 682, Indira Uppal V/s. Union of India
(2022) SCC Online Del 4889, Dev Vrat Mishra V/s. State of M.P. (2010) SCC
Oline M.P. 388 and the order dated 12/5/2022 passed in W.P.No.1628/2020
(Rupesh V/s. Commissioner, Lokayukt Bhawan, Bhopal & Ors.).
6. I have heard the learned counsel for the parties and have perused the
record.
7. The contention of the learned counsel for the petitioner that the
complaint of the petitioner ought to have been treated to be within time is
based upon decision of this Court in the case of Dev Vrat Mishra (supra)
wherein challenge was made by the petitioner to an FIR registered against
him. The same was on the ground that FIR cannot be registered and no
investigation can be done after a period of five years from the date of incident.
In that context it was held that once FIR has been registered the police would
be free to investigate the matter. The aforesaid judgment has been considered
by this Court in Rupesh (supra) decided on 12/5/2022 and it has been held as
under :-
"In support of his contention, counsel for the petitioner has referred
on a judgment passed by the Division Bench of this Court in the
case of Dev Vrat Mishra Vs. State of M.P. and another reported in
2011(2)M.P.H.T 474(DB). Counsel for the petitioner has referred to
para 15 of the case which reads as under:-
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"15. In section 10 of Lokayukt Adhiniyam, it has been provided that
Lokayukt or Up-Lokayukt shall, in each case before it, decide the
procedure to be followed for making the enquiry and in so doing
ensure that the principles of natural justice are satisfied. Since in
the case in hand, Special Police Establishment registered a F.I.R.
and proceeded for investigation, it cannot be held that it was an
inquiry by Lokayukt. Had Lokayukt proceeded to inquire into the
allegations made in the complaint in Form-I by the complainant, it
would have been incumbent on him to ensure that the principles of
natural justice were satisfied. In our opinion merely on the ground
of expiry of five years after the date on which the conduct
complained against a public servant, as alleged to have been
committed, it cannot be held that even on disclosure of the
commission of a crime, Lokayukt or Up-Lokayukt was debarred to
refer the matter to Special Police Establishment for verification. If
Special Police found that a crime had been committed it was well in
its power to register the F.I.R. and investigate the same. Once the
first information report is registered by the police, it would be free
to investigate the matter and conclude it by filing final report under
section 173 of the Code of W.P.2431/2010 M.Cr.C.848/2010
Criminal Procedure. The jurisdiction of Lokayukt to inquire into the
allegations made against a public servant on receiving a complaint
or other information is altogether different. Even for inquiry,
investigation by police agency put at the disposal of Lokayukt can
be sought. The inquiry by Lokayukt culminates into a report under
section 12 of the "Lokayukt Adhiniyam" to the 'competent authority'
defined under section 2(h) of "Lokayukt Ahiniyam".
Facts of the aforesaid case are distinguishable from the present case
as the said petition was filed seeking quashment of FIR registered
on 06.01.2010 by the Special Police Establishment Lokayukt on the
ground, that the incident took place beyond 5 years, therefore, no
investigation can be done by registering an FIR. The Division
Bench of this Court has held up that once the FIR has already been
registered by the Special Police Establishment, the police would be
free to investigate the matter. The jurisdiction of Lokayukt to inquire
into the allegations made against the public servant on receiving a
complaint or other information is altogether different.
Sections 8,10 and 11 of the Adhiniyam, 1981 is as under:-
8. Matters not subject to enquiry. - The Lokayukt or an Up-
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Lokayukt shall not inquire into any matter,-
(a) in respect of which a formal and public inquiry has been ordered
under the Public Servants (Inquiries) Act, 1950 (No. 37 of 1950);
(b) which has been referred for inquiry under the Commission of
Inquiry Act, 1952 (No. 60 of 1952); or
(c) relating to an allegation against a public servant, if the
complaint is made after expiration of a period of five years from the
date on which the conduct complained against is alleged to have
been committed.
10. Procedure in respect of enquiry. - The Lokayukt or Up-
Lokayukt shall, in each case before it, decide the procedure to be
followed for making the enquiry and in so doing ensure that the
principles of natural justice are satisfied.
11. Applicability of Evidence Act and Code of Criminal
Procedure. - The general principles of powers conferred by
Evidence Act, 1872 (No. 1 of 1872), and Criminal Procedure Code,
1973 (No. 2 of 1974), shall as nearly as may be apply to the
procedure of inquiry before Lokayukt or Up-Lokayukt in the matter
of,-
(a) summoning and enforcing the attendance of any person and his
examination on oath;
(b) requiring the discovery and production of documents and proof
thereof;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof, from any Court
or office;
(e) issuing commission for examination of witness or documents;
and such other matters as may be prescribed :
Provided that no proceeding before the Lokayukt or Up-Lokayukt
shall be invalidated only on account of want of formal proof if the
principles of natural justice are satisfied :
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[Provided further that where it is necessary to summon any
Government servant in his official capacity, his statement on
affidavit shall be deemed to be sufficient evidence.]
(2) Any proceeding before Lokayukt or Up-Lokayukt shall be
deemed to be a Judicial proceeding within the meaning of Section
193 [and Section 228] of the Indian Penal Code, 1860 (No. 45 of
1860).
(3) The Lokayukt or Up-Lokayukt shall be deemed to be Court
within the meaning of Contempt of Courts Act, 1971 (No. LXX of
1971)
In the present case, no such FIR has been registered by the Special
Police Establishment. The M.P. Lokayukt and Up Lokayukt are
governed under the provisions of Section 8 of the Adhiniyam, 1981
which prohibits the Lokayukt and Up-Lokayukt to inquire on any
complaint made after expiration of 5 years from the date on which
complaint against is alleged to have been committed. It is not in
dispute that whether the complaint was made to respondent no.1
after 6 years from the date of alleged commission of crime.
Therefore, we do not find any illegality in the order, hence,
complaint at the instance of the present complainant/petitioner has
rightly been closed rather being entertained."
8. In the present case also no FIR has been registered by respondent No.2
who is governed by the provisions of Section 8 of the Adhiniyam, 1981 which
prohibits him to enquire on any complaint made after expiration of five years
from the date of the offence. The complaint has been made by the petitioner to
respondent No.2 after a period of five years from the date of alleged
commission of offence. The judgment in the case of Rupesh (supra) is hence
squarely applicable to the facts of the present case in view of which the
complaint made by the petitioner has rightly been closed by respondent No.2
as barred by time.
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9. The case of Purushottam Bhai Magan Bhai Patel & Ors. (supra) was
in respect of a proceeding under the provisions of Land Acquisition Act, 1894,
the provisions of which are entirely different to the provisions of the
Adhiniyam, 1981 hence the said judgment is wholly inapplicable to the facts
of the present case. Similar is the situation with respect to the case of State of
Rajasthan V/s. Sanjay Kumar (supra) which was arising out of proceedings
under the Drugs and Cosmetics Act, 1940 the provisions of which are entirely
different. The case of Smt. Jyoti Shah Narvariya & Ors. (supra) was also
under the provisions of the Drugs and Cosmetics Act. Reliance therein was
placed upon the decision in the case of Dev Vrat Mishra (supra) which is
distinguishable in view of the decision in the case of Rupesh (supra).
10. Reliance placed by the learned counsel for the petitioner upon the
decision in Smt. Meera Devi Saxena (supra) to contend that the legal advisor
to the Lokayukt is not the competent authority hence could not have passed
the impugned order is wholly misplaced as in that case communication was
made by the legal advisor and not by the Lokayukt and in such circumstances,
it was held that it was Lokayukt or Up-lokayukt who is required to make
communication as per procedure prescribed under Section 12 of the
Adhiniyam, 1981. However, in the present case the impugned order
specifically states that the same has been passed in compliance of an order
dated 27/9/2023 passed by respondent No.2. It hence cannot be said that the
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impugned order has been passed by legal advisor of respondent No.2 and not
by respondent No.2 himself.
11. Since the complaint preferred by petitioner has been found to be barred
by time, it is not necessary for this Court to dwell upon the other issues raised
by learned counsel for the petitioner including the issue as to whether office
bearers of respondent No.4 would be public servant within the meaning of
Section 7 of the Adhiniyam, 1981.
12. As a result of the aforesaid discussion, no illegality or infirmity is found
in the impugned order. The petition hence being devoid of merits is hereby
dismissed.
(PRANAY VERMA)
JUDGE
SS/-
