Shri Thokchom Kaminimohon Singh & ... vs The Office Of The Lokayukta ...
2022 Latest Caselaw 274 Mani

                                                            [1]
SHOUGRA Digitally
         by
                  signed

KPAM     SHOUGRAKPAM
         DEVANANDA
DEVANAN SINGH                          IN THE HIGH COURT OF MANIPUR
DA SINGH Date: 2022.07.04
         09:52:40 +01'00'
                                                   AT IMPHAL


                    WP(C) No. 161 of 2022
                    Shri Thokchom Kaminimohon Singh & anr.                       ... Petitioners
                           Vs.
                    The Office of the Lokayukta Manipur & ors.                   ... Respondents
                            With

                    WP(C) No. 168 of 2022;
                    WP(C) No. 171 of 2022 &
                    WP(C) No. 225 of 2022
                                               B E F O R E
                               HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
                            For the Petitioners   ::   Mr. N. Ibotombi, Sr. Advocate asstd. by
                                                       Mr. A. Rommel, Advocate;
                                                       Mr. H.S. Paonam, Sr. Advocate asstd.
                                                       by Mr. Niraj Paonam, Advocate;
                                                       Mr. Vinay Navare, Sr. Advocate asstd.
                                                       by Mr. Abdulrahiman Tamboli, Advocate
                                                       Mr. H. Ishwarlal, Senior Advocate asstd.
                                                       by Mr. Sh. Poireiton Meitei, Advocate &
                                                       Mr. N. Jotendro, Senior Advocate asstd.
                                                       by Mr. Murtaza Ahmed, Advocate
                            For the respondents   ::   Mr. M. Rarry, Advocate &
                                                       Mr. H. Debendra, Govt. Advocate
                            Date of Hearing       ::   21-05-2022, 01-06-2022
                                                       02-06-2022, 06-06-2022 &
                                                       08-06-2022
                            Date of Order         ::   04-07-2022

                                                  O R D E R

[1] Heard Mr. Vinay Navare, learned Senior Advocate assisted by

Mr. Abdulrahiman Tamboli, learned Advocate, Mr. H. Ishwarlal, learned

Senior Advocate assisted by Mr. Sh. Poireiton, learned Advocate, Mr. N.

Jotendro, learned Senior Advocate assisted by Mr. Murtaza Ahmed,

learned Advocate appearing for the petitioners in WP(C) No. 161 of 2022.

Issue notice, returnable within four weeks.

                      WP(C) No. 161 of 2022 & ors.                                         Contd.../-
                                     [2]

Mr. M. Rarry, learned Advocate accepts notice on behalf of the

respondent No. 1 and Mr. H. Debendra, learned Government Advocate

accepts notice on behalf of the respondents No. 2 to 4, hence no formal

notice is called for in respect of the said respondents.

Petitioners are to take steps for service of notice upon the

respondents No. 5 to 14 by speed post within one week.

[2] Heard also, Mr. H.S. Paonam, learned Senior Advocate

assisted by Mr. Niraj Paonam, learned Advocate appearing for the

petitioner in WP(C) No. 168 of 2022 and WP(C) No. 225 of 2022.

Issue notice, returnable within four weeks.

Mr. M. Rarry, learned Advocate accepts notice on behalf of the

respondent No. 1 and Mr. H. Debendra, learned Government Advocate

accepts notice on behalf of the respondents No. 4 to 6, hence no formal

notice is called for in respect of the said respondents.

Petitioner is to take steps for service of notice upon the

respondents No. 2, 3 and 7 to 17 by speed post within one week.

[3] Heard also, Mr. N. Ibotombi, learned Senior Advocate assisted

by Mr. A. Rommel, learned Advocate appearing for the petitioners in

WP(C) No. 171 of 2022.

Issue notice, returnable within four weeks.

Mr. M. Rarry, learned Advocate accepts notice on behalf of the

respondent No. 1 and Mr. H. Debendra, learned Government Advocate

accepts notice on behalf of the respondent No. 3, hence no formal notice

is called for in respect of the said respondents.

 WP(C) No. 161 of 2022 & ors.                                  Contd.../-
                                      [3]

Petitioners are to take steps for service of notice upon

respondent No. 2 by speed post within one week.

[4] The aforesaid four writ petitions have been filed assailing the

judgment and order dated 07-02-2022 and orders dated 10-03-2022 and

21-03-2022 passed by the Manipur Lokayukta in Complaint Case No. 2

of 2020. As the facts and issues involved in the above noted four writ

petitions are common, the said four writ petitions are taken up and heard

jointly for consideration of the prayer made by the petitioners for passing

an interim order.

[5] Before considering the merits of the rival submissions advanced

by the learned counsel appearing for the parties, the facts and

circumstances which led to the filing of the present writ petitions are stated

briefly hereunder -

One Shri Th. Nirosh Singh filed a complaint dated 25-09-2020

in the Office of the Manipur Lokayukta alleging, inter alia, that the contract

work for construction of 2x1 MVA 33/11 KV Sub-Station Chakpikarong

along with the associated 33 KV line and related civil works on Turn-Key

basis under NLCPR was executed by M/S Shyama Power (India) Pvt. Ltd.

under Work Order dated 25-09-2009 with total contract amount of Rs.

9,45,80,605/- (Rupees nine crore forty five lakh eighty thousand six

hundred and five) only during the period from December, 2009 to

December, 2015 and that the said firm failed to supply two Transformers

to the Power Department though the Department installed the

Transformers somehow or rather without supplying the said articles and

WP(C) No. 161 of 2022 & ors. Contd.../-

[4]

thus, the company and the concerned officials of the Department colluded

intentionally and wilfully to mislead the general public by manipulating the

public fund in their pocket. In the said complaint, it was also alleged that

the company executed only 4 kms. LILO (2+2) as against 45 kms. for

which sanctioned had been made by the Government of India under

NLCPR and therefore, a balance amount of Rs. 5,18,98,440/- seems to

have been misappropriated.

[6] On receiving the said complaint and as provided under Section

20(1)(a) of the Manipur Lokayukta Act, 2014 (hereinafter referred to as

"the Lokayukta Act", for short), the Manipur Lokayukta ordered for

holding a Preliminary Enquiry into the allegations made in the said

complaint. After holding a Preliminary Enquiry, the Enquiry Officer, i.e.,

Dy. S.P., Manipur Lokayukta submitted a 68 pages Preliminary Enquiry

Report to the effect that a prima facie evidence is well established against

the officials of the MSPCL and the Turn-Key firm for committing offences

punishable under Section 7(b)/13 PC Act and Section 120-B/34 of the

IPC.

[7] After considering the said Preliminary Enquiry Report as well as

the comments of the concerned public servants and the competent

authorities of the Government and after giving an opportunity of being

heard to the public servants, including the present petitioners, the

Manipur Lokayukta passed the impugned judgment and order dated

07-02-2022 in Complaint Case No. 2 of 2020 holding that there is a prima

facie evidence against the present petitioners for committing offences

WP(C) No. 161 of 2022 & ors. Contd.../-

[5]

under Section 7(B)/13 PC Act and Section 120-B/34 of the IPC and that

there is a prima facie case against the petitioners for investigation.

Accordingly, the Manipur Lokayukta passed the following orders by

invoking its jurisdiction under Section 20(3), 28 and 32 of the Lokayukta

Act, which reads as under:-

"[25] In the foregoing discussion, we have already made our considered view that there are enough materials for coming to the decision that there exists prima facie case for investigation. Accordingly, we pass the following orders by invoking our jurisdiction under Sections 20(3), 28 and 32 of the Manipur Lokayukta Act, 2014:

A) To utilise the service of Shri Shrey Vats, IPS (2017(RR) at present SP, Kakching to investigate the present case. Shri Shrey Vats, IPS is directed to investigate the present case by exercising all the power conferred under the Manipur Lokayukta Act, 2014 and relevant Statutes taking the Preliminary Inquiry report of the Inquiry Officer who conducted the Preliminary Inquiry as an Ejahar for the purpose of registration of the case. For registration of the case, we have decided, for convenience, that the case should be registered at the Crime Branch Police Station, Imphal for the purpose of registration of the present case. The Investigating Officer, Shri Shrey Vats, IPS while conducting the investigation will not be under the supervision of his senior officer of his department or the station where the present case is to be registered. It is also made clear that the Investigating Officer shall conduct the investigation with full co-ordination with the Director (Inquiry), Manipur Lokayukta. Entrusting the investigation of the present case to Shri ShreyVats, IPS will be in addition to his normal duty wherever he is posted without disturbing his posting and as such entrustment of the present case for investigation will not amount to new transfer and posting.

 WP(C) No. 161 of 2022 & ors.                                      Contd.../-
                                    [6]

B) The Investigating Officer, Shri Shrey Vats, IPS shall take necessary action to complete the investigation of the present case within 6 (six) months from the date of registration of the case at the Crime Branch Police Station, Imphal. It is also made clear that the Investigating Officer while investigating the present case will not be under the supervision of his senior officer of his department or the station where the present case is to be registered, and it is for the purpose of maintaining the sanctity of Manipur Lokayukta and for not interfering with the proceeding of the case before the Manipur Lokayukta and inquiry and investigation are parts of the proceeding of the case filed before Manipur Lokayukta.

C) The Director General of Police, Manipur shall ensure the registration of the case at the Crime Branch Police Station, Imphal for the matter indicated above and registration of the present case as indicated above in the Crime Branch Police Station will be done immediately upon receipt of this order; and for registration of the case at the Crime Branch Police Station, Imphal under our order further approval of any authority of the police department or Government of Manipur will not be required. We are passing this order in discharging our statutory duties. The Investigating Officer, Shri Shrey Vats, IPS shall report the registration of the present case at the Crime Branch Police Station to the Manipur Lokayukta through the Director (Inquiry), Manipur Lokayukta without any delay.

D) In the present case, there is a report of the Inquiry Officer that many documents in relation with the present project i.e. installation of 2x1 MVA, 33 kV Sub-Station along with the associated 33 kV line and related works at Chakpikarong in Chandel, Manipur executed under the work order dated 25.09.2009 are suspected to be manufactured and recently created ones, many of the important documents like Measurement Books (MBs) are missing and also many of the officers under the

WP(C) No. 161 of 2022 & ors. Contd.../-

[7]

Respondent No. 2, Shri N. Sarat Singh, Managing Director, MSPCL are suspected to be involved in concealing/misplacing and destroying or manufacturing important documents. In such circumstances, we, for proper investigation and also in the larger interest of public and also for maintaining transparency in the administration by the Government recommend to the State Government not to allow the Respondent No. 2, Shri N. Sarat Singh, Managing Director, Manipur State Power Company Limited (MSPCL) to function as Managing Director, Manipur State Power Company Limited (MSPCL) and entrust the function and duties of the Managing Director, Manipur State Power Company Limited (MSPCL) to an official deem appropriate by the State Government till the completion of the investigation. Further, Respondent No. 3, Shri Thockhom Kaminimohon Singh, General Manager, Manipur State Power Company Limited (MSPCL) and Respondent No. 4, Shri Manoharmayum Budhachandra Sharma, General Manager, Manipur State Power Company Limited (MSPCL) should be taken out / transferred from their present posting till the completion of the investigation of this case. These recommendations and directions are for larger interest of the State Government and public at large and shall be implemented as soon as possible for unhindered investigation of the present case as per our direction.

E) The Respondent No. 2, Shri N. Sarat Singh, Managing Director, MSPCL; Respondent No.3, Shri Thockhom Kaminimohon Singh, General Manager, MSPCL and Respondent No. 4, Shri Manoharmayum Budhachandra Sharma, General Manager, MSPCL are not directly involved in the election duty of the ensuing 12th State Assembly Election, 2022 and therefore, their removal from their present postings will not interfere with the election process. The above three officers i.e. Respondent nos. 2, 3 and 4 had already retired from their respective service

WP(C) No. 161 of 2022 & ors. Contd.../-

[8]

on superannuation but they are now continuing on re- engagement.

F) Chief Secretary, Government of Manipur and Director General of Police, Manipur shall ensure that the place of posting of the assigned Investigating Officer of this case may not be disturbed without the prior notice to the Manipur Lokayukta."

"[26] Deputy Registrar, Manipur Lokayukta is directed to send a copy of this order to:

i) the Chief Secretary, Government of Manipur;

ii) the Director General of Police, Manipur;

iii) the S.P., Crime Branch, Government of Manipur;

iv) Shri Shrey Vats, IPS 2017(RR) SP, Kakching;

for information and necessary prompt action and to the

v) Parties of the present case for information." "[27] Await investigation report."

Having been aggrieved by the aforesaid recommendations

made by the Manipur Lokayukta, the petitioners assailed the same by

filing the present writ petitions for redressing their grievances.

[8] Mr. H. Ishwarlal, learned Senior Advocate, Mr. N. Jotendro,

learned Senior Advocate and Mr. Vinay Navare, learned Senior Advocate

appearing for the petitioners in WP(C) No. 161 of 2022 submitted that the

Lokayukta is a creature of statute and it can exercise its jurisdiction only

within the four corners of the statutory provisions of the Manipur

Lokayukta Act and rules framed thereunder. It has also been submitted

by the learned senior counsels appearing for the petitioners that the

Manipur Lokayukta derives its jurisdiction for ordering an investigation

WP(C) No. 161 of 2022 & ors. Contd.../-

[9]

and making appropriate recommendations only on the basis of a valid

complaint and that the Lokayukta has no power and jurisdiction for

ordering an investigation and making recommendations suo motu. It has

also been submitted that in the present case, there is no valid complaint

before the Manipur Lokayukta inasmuch as, the signatures appended to

the complaint dated 25-09-2020 filed before the Manipur Lokayukta and

on the basis of which, investigation had been ordered by the Manipur

Lokayukta are not the genuine signatures of the complainant and those

signatures have been forged and fabricated by another person other than

the complainant. Accordingly, it has been submitted by the learned senior

counsel appearing for the petitioners that the Manipur Lokayukta had

transgressed its jurisdiction in passing the impugned judgment and order

and that the said impugned judgment and order is not sustainable in the

eyes of law and is liable to be quash and set aside as having been passed

without any jurisdiction.

[9] The learned senior counsel further submitted that the present

petitioners have already brought to the notice of the Manipur Lokayukta

about the forgery and fabrication of the said complaint dated 25-09-2020

by filing an application under Section 340 of the CrPC, which was

registered as Misc. Case No. 11 of 2021, praying for taking appropriate

steps against the persons who fabricated the said complaint, however,

the Manipur Lokayukta deferred the consideration and disposal of the

said application and instead passed the impugned judgment and order.

According to the learned senior counsel, the Manipur Lokayukta should

have first considered and disposed of the said Misc. Case No. 11 of 2021

WP(C) No. 161 of 2022 & ors. Contd.../-

[10]

before passing the impugned judgment and order dated 07-02-2022 and

that such failure on the part of the Manipur Lokayukta vitiated the

impugned judgment and order.

It has also been submitted on behalf of the petitioners that on

examination of the entire judgment and order impugned herein, there is

no evidence against the petitioners to make out a prima facie case that

the petitioners have committed offences under Section 7(B)/13 of the PC

Act and Section 120-B/34 of the IPC as alleged in the impugned judgment

and order. Accordingly, a prayer has been made on behalf of the

petitioners for suspending the operation of the impugned judgment and

order during the pendency of the present writ petitions.

[10] Mr. H.S. Paonam, learned Senior Advocate appearing for the

petitioner in WP(C) No. 168 of 2022 and WP(C) No. 225 of 2022

submitted that despite the comments furnished by the competent

authorities in connection with the Preliminary Enquiry Report in

connection with the allegations made in the said Complaint Case No. 2 of

2020 as being unfounded and baseless, the Manipur Lokayukta passed

the impugned judgment and order dated 07-02-2022 in the said

Complaint Case. According to the learned senior counsel, findings

against the petitioners and on the basis of which further investigation had

been ordered are found to be summarized at paras 6 to 9 of the impugned

judgment and order. It has been submitted that a cursory reading and

minute examination of the said findings of the Manipur Lokayukta along

with the comments submitted by the petitioners as well as by the

WP(C) No. 161 of 2022 & ors. Contd.../-

[11]

competent authorities and also the clarification given by the Department

of Planning, Government of Manipur, the findings against the petitioner is

only the alleged irregularities and not a case of misappropriation of funds,

gratification or otherwise and accordingly, the order for further

investigation under Section 20(3) read with Sections 28 and 32 of the

Lokayukta Act is not only highly misconceived and misplaced but the

same was also in transgression of its jurisdiction.

[11] The learned senior counsel also submitted that the ingredients

required for commission of the offences under Section 7(B)/13 PC Act

and Section 120-B/34 of the IPC is wholly absent in the findings given at

paras 6 to 9 of the impugned judgment and order and therefore, it has

been submitted that having regard to the provisions contained in Section

50 of the Lokayukta Act and also the jurisdiction of the Manipur Lokayukta

as envisaged under Section 14 of the Lokayukta Act, the impugned

judgment and order dated 07-02-2022 including the recommendations

made therein are liable to be quash and set aside as the same have been

passed exceeding the jurisdiction of the Lokayukta.

The learned senior counsel further submitted that in terms of

the impugned judgment and ordered dated 07-02-2022 passed by the

Manipur Lokayukta, one FIR has been registered by the designated

Investigating Officer and investigation is going on with full cooperation

from the side of the petitioner. However, in an unprecedented manner,

the Manipur Lokayukta is seeking action taken report from the concerned

authorities/ officials of the State Government not in connection with the

WP(C) No. 161 of 2022 & ors. Contd.../-

[12]

stage of the investigation but in connection with its recommendation made

in para 25(D) of the impugned judgment and order for not allowing the

present petitioner to function as MD, MSPCL and transferring out two

other officers in the subsequent proceedings of the Manipur Lokayukta in

connection with the Complaint Case No. 2 of 2020. The learned senior

counsel vehemently submitted that the Manipur Lokayukta has no

jurisdiction or authority to direct implementation of its report or

recommendation by the constitutional functionaries and accordingly, a

prayer has been made for passing an interim order restraining the

Manipur Lokayukta from taking any action for implementation of its

recommendation at para 25(D) of the impugned judgment and order

dated 07-02-2022 passed in Complaint Case No. 2 of 2020. In support of

his contentions, the learned senior counsel cited the judgment of the

Hon'ble Apex Court in the case of Ram Kishan Fauji Vs. State of

Haryana & ors., reported in (2017) 5 SCC 533 wherein it has been held

that -

"11. In the concurring opinion, Lokur, J. in Chandrashekaraiah case posed the question whether the Lokayukta is a quasi-judicial authority. The argument on behalf of the State was that Upa- Lokayukta is essentially required to investigate complaints and enquire into the grievances brought before it and, therefore, he may be exercising some quasi-judicial functions, but that does not make him a quasi-judicial authority. The said submission was advanced to highlight the proposition that when the Upa- Lokayukta is not a quasi-judicial authority, the opinion of the Chief Justice of the High Court of Karnataka would not have primacy in the appointment and consultation process. After adverting to the powers and functions of Upa- Lokayukta, it has been held that: (SCC pp. 165-66, paras 105 & 107-08).

 WP(C) No. 161 of 2022 & ors.                                   Contd.../-
                                     [13]

"105. Section 14 of the Act enables the Upa-Lokayukta to prosecute a public servant and if such an action is taken, sanction to prosecute the public servant shall be deemed to have been granted by the appropriate authority." "107. The broad spectrum of functions, powers, duties and responsibilities of the Upa-Lokayukta, as statutorily prescribed, clearly bring out that not only does he perform quasi-judicial functions, as contrasted with purely administrative or executive functions, but that the Upa-Lokayukta is more than an investigator or an enquiry officer. At the same time, notwithstanding his status, he is not placed on the pedestal of a judicial authority rendering a binding decision. He is placed somewhere in between an investigator and a judicial authority, having the elements of both. For want of a better expression, the office of an Upa-Lokayukta can only be described as a sui generis quasi-judicial authority."

(iii) Decisions on the subject "108. ..... The final decision rendered by the Upa-Lokayukta, called a report, may not bear the stamp of a judicial decision, as would that of a court or, to a lesser extent, a tribunal, but in formulating the report, he is required to consider the point of view of the person complained against and ensure that the investigation reaches its logical conclusion, one way or the other, without any interference and without any fear. Notwithstanding this, the report of the Upa-Lokayukta does not determine the rights of the complainant or the person complained against. Consequently, the Upa-Lokayukta is neither a court nor a tribunal. Therefore, in my opinion, the Upa- Lokayukta can best be described as a sui generis quasi- judicial authority."

"14. The aforesaid paragraphs would clearly show that neither the Lokayukta nor has Upa-Lokayukta any jurisdiction or authority to direct implementation of his report by the constitutional

WP(C) No. 161 of 2022 & ors. Contd.../-

[14]

functionary but when after investigation, it is found that the public servant has committed any criminal offence, prosecution can be initiated for which prior sanction of any authority is required under any law for such prosecution and the same shall be deemed to have been granted."

"16. The maze needs to be immediately cleared. In the instant case, we are really not concerned with the nature of the post held by Lokayukta or Upa-Lokayukta. We are also not concerned how the recommendation of the said authorities is to be challenged and what will be the procedure therefor. As has been held by this Court, neither the Lokayukta nor can Upa-Lokayukta direct implementation of his report, but it investigates and after investigation, if it is found that a public servant has committed a criminal offence, prosecution can be initiated."

[12] Mr. N. Ibotombi, learned Senior Advocate assisted by Mr. A.

Rommel, learned Advocate appearing for the petitioners in WP(C) No.

171 of 2022 endorsed the submissions made by Mr. H.S. Paonam,

learned Senior Advocate and further submitted that no allegations have

been made against the petitioner No. 1 in the impugned judgment and

order and that the only allegations made against the petitioner No. 2 as

unfolded in para 11 of the impugned judgment and order is that three

Measurement Books (MBs) of the work in question were found missing

and that the petitioner No. 2 informed the fact of missing of MBs to the

Managing Director. It has also been submitted by the learned senior

counsel that though the Measurement Books were lost, records of the

quantity and materials received so far, details of payments and persons

involved while passing the bill can be obtained from the bill copies of the

1st and 4th Running Account Bills of the scheme, since the Running

Account Bills were prepared in CPWA -26 in which under Column 4,

WP(C) No. 161 of 2022 & ors. Contd.../-

[15]

entries of quantities executed up-to-date as per Measurement Books

were made and under Column 5 and 6, payment details up-to date and

since previous bills were made. It has also been submitted that while

passing the bills, the Divisional Auditor will check the bills both in MBs

and Running Account Bills in CPWA-26 and put up before the Executive

Engineer for passing the bill and that the Executive Engineer still based

the bills both in Measurement Books and Running Account Bills.

According to the learned senior counsel, the missing of the said

Measurement Books cannot be a ground for alleging that a prima facie

case has been made out against the petitioners for committing offences

under Section 7(b)/13 PC Act and Section 120-B/34 of the IPC.

It has been submitted that the present case is a classic example

where the Lokayukta have not appreciated the provisions of the Manipur

Lokayukta Act, 2014 which is meant to check corruption by public

functionaries and transgress its jurisdiction by embarking upon a journey

of finding fault as regards irregularity occasioned in the process of

implementation of schemes which does not involve loss of public fund but

still insisting to cause further investigation only on the ground of presence

of alleged irregularity which has been condoned and approved by the

State Government. The learned senior counsel, accordingly, made a

prayer for passing an interim order suspending the operation of the

impugned judgment and order.

[13] Mr. M. Rarry, learned counsel appearing for the respondent No.

1 submitted that the petitioners did not enclosed copies of the Preliminary

WP(C) No. 161 of 2022 & ors. Contd.../-

[16]

Enquiry Report running into 838 pages in their writ petitions or have

concealed the findings given in the said Preliminary Enquiry Report about

commission of irregularities/ offences by twelve officials/ individuals of the

MSPCL (including the present petitioners) and M/S Shyama Power (India)

Pvt. Ltd. By drawing the attention of this court at paras 45 and 46 of the

said Preliminary Enquiry Report, it has been submitted by Mr. M. Rarry,

learned counsel that the Enquiry Officer gave specific findings about

commission of irregularities/ offences by twelve officials/ individuals of the

MSPCL (including the present petitioners) and M/S Shyama Power (India)

Pvt. Ltd. and that such specific findings against the said officials have

been concealed by the present petitioners while filing the present writ

petitions. The learned counsel further submitted that the petitioners

concealed material facts while filing their writ petitions and approached

this court without clean hands, clean heart or clean mind and accordingly,

the present writ petitions deserves to be rejected outright on this count

alone.

[14] Mr. M. Rarry, learned counsel appearing for the respondent

No. 1 read line by line the entire judgment and order dated 07-02-2022

passed by the Manipur Lokayukta in Complaint Case No. 2 of 2020 and

submitted that the impugned judgment and order had been passed by the

Lokayukta after careful consideration and examination of the Preliminary

Report submitted by the Enquiry Officer, the written comments submitted

by the concerned officials of the State Government in connection with the

said Preliminary Enquiry Report, the written comments submitted by the

present petitioners against the said Preliminary Enquiry Report as well as

WP(C) No. 161 of 2022 & ors. Contd.../-

[17]

after hearing the petitioners through their counsels. It has also been

submitted by the learned counsel for the respondent No. 1 that after

careful examination of the Preliminary Enquiry Report, the comments

submitted by the officials in connection with the Preliminary Enquiry

Report and after careful consideration of the submissions advanced on

behalf of the present petitioners, the Manipur Lokayukta was of the

considered view that there is prima facie evidences against the petitioners

for causing an investigation to find out as to whether the present

petitioners and other officials of the MSPCL have committed any offences

of corrupt practices. Accordingly, the Manipur Lokayukta by exercising its

jurisdiction under Section 20(3), 28 and 32 of the Lokayukta Act made the

recommendations as contained in para 25 of the impugned judgment and

order.

[15] Mr. M. Rarry, learned counsel vehemently submitted that the

Manipur Lokayukta was within its power and jurisdiction in recommending

for investigation against the officials of the MSPCL including the present

petitioners and the petitioners have not been able to make out any case

for interfering with the impugned judgment and order and that the present

writ petitions have been filed prematurely and accordingly, the present

writ petitions are liable to be dismissed as not maintainable. In support of

his contention, Mr. Rarry, relied on the judgment of the Hon'ble Apex

Court in the case of State of Maharashtra Vs. Som Nath Thapa,

reported in (1996) 4 SCC 659 wherein it has been held -

"30. In Antulay's case, Bhagwati, CJ., opined, after noting the difference in the language of the three pairs of section, that

WP(C) No. 161 of 2022 & ors. Contd.../-

[18]

despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame a charge against him for committing that offence".

"31. Let us note the meaning of the word "presume". In Black's Law Dictionary it has been defined to mean "to believe or accept upon probable evidence". (emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law "presume" means "to take as proved until evidence to the contrary is forthcoming", Stroud's Legal Dictionary has quoted in this context a certain judgement according to which "A presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of a fact alleged." (emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at p. 1007 of 1987 Edn."

"32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."

WP(C) No. 161 of 2022 & ors.                                       Contd.../-
                                    [19]


[16]       Mr. M. Rarry, learned counsel also submitted that pursuant to

the recommendations made by the Manipur Lokayukta under the

impugned judgment and order, one FIR had been registered and a

criminal investigation is being carried out against the present petitioners

and other officials of the Manipur State Power Corporation Limited and

that in the event of quashing the impugned judgment and order of the

Manipur Lokayukta by this court, the natural consequences will be that

the said criminal proceedings initiated against the petitioners and other

officials of the Manipur State Power Corporation Limited will also be

annulled automatically. In view of such likely consequences, it has been

submitted by the learned counsel that the nature of the present writ

petitions are in the nature of criminal proceedings and if that is so, the

rigour of the principles laid down by the Hon'ble Apex Court in a catena

of its judgments with regard to passing of an interim order for staying

further investigation in connection with the pending criminal cases will be

squarely applicable and that in the facts and circumstances of the present

cases, the petitioners have not been able to made out any prima facie

case for obtaining an interim order for staying the operation of the

impugned judgment and order of the Manipur Lokayukta and the criminal

investigation being carried out against the petitioners pursuant to the

recommendations made by the Manipur Lokayukta in the impugned

judgment and order. In support of his contention, the learned counsel

cited the following judgments of the Hon'ble Apex Court -

(i) (2017) 5 SCC 533 "Ram Kishan Fauji vs. State of Haryana & ors." (para. 28 - 31, 45, 51-56 & 61)

WP(C) No. 161 of 2022 & ors. Contd.../-

[20]

(ii) 2021 SCC Online SC 315 "Neeharika Infrastructure Pvt. Ltd.

Vs. State of Maharashtra & ors." (para. 80)

[17] Mr. M. Rarry, learned counsel further submitted that insofar as

the recommendation of the Manipur Lokayukta for not allowing the

present petitioners to function as officials of the Manipur State Power

Corporation Limited in their respective capacity till the completion of the

investigation as contained in para. 25(D) and (E) of the impugned

judgment and order is concerned, the State Government wrote a letter

dated 17-02-2022 through the Secretary (Power), Government of Manipur

informing the Office of the Manipur Lokayukta that the recommendations

at para. 25(D) and (E) of the impugned judgment and order have been

examined in the light of the administrative scenario of the Power

Department and it was observed that it was not feasible to accept the

recommendations at present due to administrative reasons. Mr. M. Rarry,

submitted that in view of the said letter dated 17-02-2022 of the Secretary

(Power), Government of Manipur, the Manipur Lokayukta had merely

requested the authorities of the State Government for furnishing the

reasons for not accepting the recommendations made by it and that such

action of the Manipur Lok Ayukta cannot be construed or termed as an

act of insisting the State Government to implement the recommendations

of the Manipur Lokayukta. The learned counsel, accordingly, submitted

that there is no ground or reason for passing any interim order.

[18] After hearing the submissions of the learned counsel appearing

for the parties and on careful consideration of the points advanced by

them, this court is of the considered view that the issues raised in the

WP(C) No. 161 of 2022 & ors. Contd.../-

[21]

present batch of writ petitions will require careful examination and

consideration after giving the parties a reasonable opportunity to

exchange their pleadings and at a later stage. At the present stage, this

court is not inclined to decide the issues raised by the learned counsel

appearing for the parties by appreciating the evidences and by giving

findings, which may cause prejudice to the parties in the present litigation.

In my considered view, the only point to be considered by this court at this

stage is whether there is any ground or justification for passing an interim

order for suspending the operation of the impugned orders of the Manipur

Lokayukta which may result in curtailing or stalling the criminal

investigation being presently carried out against the petitioners and other

officials of the Manipur State Power Corporation Limited.

In my considered opinion, the grievances of the petitioners are

basically against only two of the recommendations made by the Manipur

Lokayukta in the impugned judgment and order, i.e., (i) for conducting a

criminal investigation against them; and (ii) for not allowing the petitioners

to continue as officials of the Manipur State Power Corporation Limited in

their respective capacity till the completion of the said investigation. Such

recommendations have been made by the Manipur Lokayukta in exercise

of the statutory power conferred to it under Section 20(3)(a) and Section

32(1) of the Lokayukta Act.

After hearing the rival submissions of the learned counsel

appearing for the parties and after careful examination of the records

placed before this court in connection with the present writ petitions, this

WP(C) No. 161 of 2022 & ors. Contd.../-

[22]

court is of the considered view that the Manipur Lokayukta has the power

and jurisdiction to made such recommendations and this court did not find

any material or ground to interfere with such recommendations at this

stage of the proceedings of the present writ petitions. Moreover, as the

Manipur Lokayukta had recommended for conducting an investigation

strictly in terms of the relevant provisions of the act and rules, no civil

consequences against the petitioners follows from such action of the

Manipur Lokayukta and the petitioners cannot be said to be aggrieved by

such action of the Manipur Lokayukta and accordingly, this court is not

inclined to pass any interim order at this stage.

The parameters which are required to be considered before

passing an interim order for staying further investigation pending the

quashing petitions under Section 482 Cr.P.C. and / or Article 226 of the

Constitution of India had been clearly laid down by the Hon'ble Apex Court

in a catena of its judgments. In the case of Neeharika Infrastructure Pvt.

Ltd. Vs. State of Maharashtra & ors., reported in 2021 SCC Online SC

315, the Hon'ble Apex Court after referring to a number of its judgments

have laid down as under -

"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/ or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till

WP(C) No. 161 of 2022 & ors. Contd.../-

[23]

the final report / chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: "i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

"ii) Courts would not thwart any investigation into the cognizable offences;

"iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

"iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

"v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

"vi) Criminal proceedings ought not to be scuttled at the initial stage;

"vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

"viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

"ix) The functions of the judiciary and the police are complementary, not overlapping;

"x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

WP(C) No. 161 of 2022 & ors.                                        Contd.../-
                                     [24]

"xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

"xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; "xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

"xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; "xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; "xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in

WP(C) No. 161 of 2022 & ors. Contd.../-

[25]

exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

"xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

"xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

WP(C) No. 161 of 2022 & ors.                                     Contd.../-
                                      [26]

In view of the above principles laid down by the Hon'ble Apex

Court in the case of Neeharika Infrastructure Pvt. Ltd (supra) and taking

into consideration the submissions advanced by the learned counsel

appearing for the parties and on perusal of the records of the present

cases, this court did not find any ground or justification for passing any

interim order at this stage which may result in staying the criminal

investigation against the petitioners.

[19] Even though the Manipur Lokayukta has the power and

jurisdiction to make recommendation for not allowing the petitioners to

continue as officials of the Manipur State Power Corporation Limited in

their respective capacity till completion of the investigation as provided

under Section 32(1) of the Lokayukta Act and even though this court did

not find any material or ground for interfering with such recommendations

at this stage, the question still remains as to whether the Manipur

Lokayukta is justified or has the jurisdiction or authority to insist or direct

the implementation of such recommendations. According to Mr. M. Rarry,

learned counsel, the Manipur Lokayukta never insisted or directed the

authorities of the State Government to implement its recommendation for

not allowing the petitioners to function as officials of the Manipur

State Power Corporation Limited in their respective capacity but had

only sought for furnishing the reasons for not accepting such

recommendations in view of the letter dated 17-02-2022 of the Secretary

(Power), Government of Manipur wherein it has been intimated that it was

not feasible to accept such recommendations.

 WP(C) No. 161 of 2022 & ors.                                        Contd.../-
                                     [27]

Mr. H.S. Paonam, learned Senior Advocate, on the other hand,

submitted that the Manipur Lokayukta passed several orders directing the

concerned officials of the State Government to appear before it personally

and insisting them to give reasons or justification for not accepting such

recommendations and pressurizing the State officials to implement such

recommendations if they failed to give reasons and that such factums are

clearly reflected in the proceedings of the Manipur Lokayukta in

connection with the Complaint Case No. 2 of 2020 pending before the

Manipur Lokayukta.

Mr. H. Debendra, learned Government Advocate submitted

that the recommendations of the Manipur Lokayukta, for not allowing the

petitioners to function as officials of the Manipur State Power Corporation

Limited in their respective capacity till the completion of the investigation,

was placed before the State Cabinet for its consideration, however, the

State Cabinet had deferred the matter in relation to the said

recommendations made by the Manipur Lokayukta by stating that the

Power Department should re-submit the matter for consideration of the

Cabinet after incorporating the decisions of this court in the pending writ

petitions and accordingly, the State Government is yet to take a decision

with regard to the said recommendation of the Manipur Lokayukta.

[20] On careful consideration of the rival submissions of the learned

counsel appearing for the parties, this court is of the tentative view that

the Manipur Lokayukta was not justified in insisting to furnish the reasons

WP(C) No. 161 of 2022 & ors. Contd.../-

[28]

for not accepting such recommendations since the State Government is

yet to take a decision with regard to the said recommendation.

In the case of Chandrashekaraiah Vs. Janekere C. Krishna,

reported in (2013) 3 SCC 117, the Hon'ble Apex Court held in para. 41 of

its judgment that -

"41. The Governor of the State, acting in his discretion, if accepts the report of the Lokayukta against the Chief Minister, then he has to resign from the post. So also, if the Chief Minister accepts such a report against a Minister, then he has to resign from the post. The Lokayukta or Upa-Lokayukta, however, has no jurisdiction or power to direct the Governor or the Chief Minister to implement his report or direct resignation from the office they hold, which depends upon the question whether the Governor or the Chief Minister, as the case may be, accepts the report or not. But when the Lokayukta or Upa-Lokayukta, if after the investigation, is satisfied that the public servant has committed any criminal offence, prosecution can be initiated, for which prior sanction of any authority required under any law for such prosecution, shall also be deemed to have been granted."

In the case of Ram Kishan Fauji Vs. State of Haryana & ors.,

reported in (2017) 5 SCC 533, the Hon'ble Apex Court held as under -

"14. The aforesaid paragraphs would clearly show that neither the Lokayukta nor has Upa-Lokayukta any jurisdiction or authority to direct implementation of his report by the constitutional functionary but when after investigation, it is found that the public servant has committed any criminal offence, prosecution can be initiated for which prior sanction of any authority is required under any law for such prosecution and the same shall be deemed to have been granted."

"16. The maze needs to be immediately cleared. In the instant case, we are really not concerned with the nature of the post held by

WP(C) No. 161 of 2022 & ors. Contd.../-

[29]

Lokayukta or Upa-Lokayukta. We are also not concerned how the recommendation of the said authorities is to be challenged and what will be the procedure therefor. As has been held by this Court, neither the Lokayukta nor can Upa-Lokayukta direct implementation of his report, but it investigates and after investigation, if it is found that a public servant has committed a criminal offence, prosecution can be initiated."

In view of the above quoted decisions of the Hon'ble Apex

Court and as the State Government is yet to take a decision with regard

to the recommendations of the Manipur Lokayukta for not allowing the

petitioners to continue in their respective official capacity in the Manipur

State Power Corporation Limited till the completion of the investigation,

this court hope and trust that the Manipur Lokayukta will not insist or direct

the authorities of the State Government to implement or carried out such

recommendations. It is, however, made clear that the above observations

made by this court should not be construed as an interim order restraining

the State Government from taking a decision as to whether the State

Government will accept the aforesaid recommendations of the Lokayukta

as mandated under Section 32(2) of the Lokayukta Act. It is hoped and

trust that the State Government will take a decision with regard to the

aforesaid recommendations of the Manipur Lo kayukta as mandated

under Section 32(2) of the Lokayukta Act as early as possible.

List these cases again on 01-08-2022.

                                                         JUDGE

Devananda


 WP(C) No. 161 of 2022 & ors.                                        Contd.../-