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Madhya Pradesh High Court · body

2001 DIGILAW 860 (MP)

GOWARDHAN DAS v. STATE OF M. P.

2001-11-26

N.K.JAIN

body2001
ORDER N.K. Jain, J. All these revisions involving similar questions of law and facts have been heard as connected matters and are being disposed of by this common order. These revisions arise from the similar orders passed on the same day i.e., 8/3/2001 by Special Judge, Indore, in Criminal Cases Nos. 4/2000 to 13/2000, framing charges under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the P.C. Act') and Section 120B of the Indian Penal Code against the accused Petitioners. Accused Madhukar Verma, Smt. Fareeda Rauf, Kunvinder Singh Gill, Suresh Minda and Vinay Bakliwal are common in all these cases and are charged with the offences under the Prevention of Corruption Act, while one accused each namely; Harbhajan, Rajendra, Kamal Kishore, Suresh Lilani, Mangilal, Suresh Kalani, Rajendra, Goverdhan and Dayaldas has been made co-accused and charged for the said offences of corruption with the aid of Section 120B of Indian Penal Code. Hereafter all these Petitioners shall be referred as accused -person(s). At the relevant time (year 1995) accused Madhukar Verma was the Mayor, while accused Fareeda Rauf, Kunvinder Singh, Suresh Minda and Vinay Bakliwal were the Corporators of the Municipal Corporation, Indore, constituted under the M.P. Municipal Corporation Act, 1956 (for short, 'the M.P. Act, of 1956'). They were also Chairman/Members of the Appellate Committee appointed by the Corporation u/s 403(3) of the M. P. Act. The other accused persons Harbhajan etc., had constructed some houses in Indore town. They were served with notices u/s 307 of the M. P. Act by the Municipal Commissioner, Indore, requiring them to remove some part of their construction not in conformity with the building permission accorded to them u/s 291. These accused persons preferred appeals against the said notices before the Corporation u/s 403 which came up for hearing before the Appellate Committee. The Committee by separate orders allowed these appeals in part directing for composition of alleged illegal construction on payment of composition fee/penalty u/s 308-A, as inserted by the M. P. Amendment Act 16 of 1994. One Shri Parmanand Sisodiya, a Corporator during the same period, filed Writ Petition (W.P. No. 1504/1996) by way of PIL, before this Court calling in question the orders passed by the Appellate Committee in the aforesaid cases. One Shri Parmanand Sisodiya, a Corporator during the same period, filed Writ Petition (W.P. No. 1504/1996) by way of PIL, before this Court calling in question the orders passed by the Appellate Committee in the aforesaid cases. The petition was disposed of by the Division Bench of this Court vide Order dated 26/2/1997 with undernoted direction: We, therefore, direct that Respondents No. 2 to 8 (the Chairman and Members of the Appellate Committee) shall take up all the cases of composition of alleged illegal constructions and if necessary, review the orders It was further observed: That if some person or persons are found guilty of any offence, they may also be dealt with in accordance with law It appears that the Appellate Committee thereafter took all the aforesaid cases in review, recalled its orders of composition and remanded those cases back to the Municipal Commissioner for disposal according to law. The Municipal Commissioner also ordered for composition of the said illegal constructions. He, however, substantially raised the amount of composition fee/penalty. Subsequent to the enhancement of fee/penalty by the Commissioner, said Parmanand Sisodia lodged a complaint dated 28/7/1998 with the Special Police Establishment, Indore, stating inter-alia the enhancement of penalties by the Commissioner and levelling charges of corruption against the accused persons. The Special Police Establishment, on 28/7/1998, registered separate FI Rs against the accused persons in respect to each of the aforesaid cases and proceeded with the investigation. They also applied to the State Government for sanction for prosecution which was, however, refused by the latter vide Order dated 17/12/1999. However, in the meantime, the term of the Office of the accused Mayor and Corporators expired and since the necessity of sanction for prosecution no more existed, the Special Police Establishment, on 17/2/2000, filed charge sheet against them as also the said co-accused builders. The Court below has framed charges as aforesaid against the accused persons. The only allegation against them is that the Chairman/Members of the Appellate Committee had acted without jurisdiction in entertaining appeals filed by the co-accused builders and that undue favour was shown by the formers to the latters by imposing lesser penalty than the one prescribed u/s 308-A of the M.P. Act. The only allegation against them is that the Chairman/Members of the Appellate Committee had acted without jurisdiction in entertaining appeals filed by the co-accused builders and that undue favour was shown by the formers to the latters by imposing lesser penalty than the one prescribed u/s 308-A of the M.P. Act. The accused Petitioners have impugned their prosecution and the charges framed against them and it is contended that there is absolu:ely no evidence whatsoever to show that the Members of the Committee indulged in any kind of bribery or corruption while passing the orders in question There was also no basis for inferring any kind of conspiracy amongst the eccused persons. The orders in question, it is submitted, were passed in bona fide exercise of quasi-judicial authority vested in the Appellate Committee by law and the same cannot be, therefore, made basis for any action criminal or civil against the Members of the Committee. Section 402 of the Act, it is pointed out, conferred total indemnity on the various authorities of the Corporation including the Appellate Committee against any civil or criminal action in respect of anything done in good faith under the M. P. Act or under the Rules or Bye-laws made thereunder. It was further contended that the protection available to Judges under the Judges (Protection) Act, 1985, was also available to the Members of the Appellate Committee. On behalf of accused builders it was further submitted that since the prosecution against the Chairman/Members of the Appellate Committee is incompetent, no charge with the aid of Section 120B of Indian Penal Code can legally be framed against these accused persons. As against it, Shri Girish Desai, learned Dy. Advocate General defended the impugned action and submitted that no appeal against any order of the Commissioner passed u/s 307 of the M. P Act lay to the Appellate Committee and that the Chairman/Members of the Committee had acted wholly without jurisdiction in entertaining the appeals and passing orders for composition. It was further submitted that they were not the Judges within the meaning of Judges' (Protection) Act and no such protection was available to them for any act done by them under the M. P. Act. Section 403 of the M. P. Act of 1956 provides for appeal against the order of the Commissioner and subordinate officers. Relevant provisions of this section thus read: 403. Section 403 of the M. P. Act of 1956 provides for appeal against the order of the Commissioner and subordinate officers. Relevant provisions of this section thus read: 403. Appeal against the order of the Commissioner and subordinate officers. ? (1) Any person aggrieved by an order passed by an officer subordinate to the Commissioner, under this Act or under any rule or bye law made thereunder may appeal to the Commissioner within thirty days of the date on which the order is conveyed to him. (2) Any person aggrieved by ? (a) any notice or order issued or other action taken by the Commissioner under Sections 174, 193, 195, 196, 197, 198, 199, 202, 204, 206, 207, 208, 209, 210, 237, 241, 243, 246, 248, 249, 295, 296, 299, 301, 302, 310, 311, 312, 313, 315,322, 323 or 393 of this Act or any rule or bye law made thereunder; (b) any order of the Commissioner regarding granting or refusing a licence or permission; or (c) any other order of the Commissioner that may be made appealable by bye laws u/s 427, may appeal to the Corporation within 30 days from the date of such order. (4) The Appeal Committee shall consist of the Mayor and four elected Councillors elected by the Corporation in accordance with the system of proportional representation by means of a single transferable vote, in the meeting called under Sub-section (1) of Section 18. The Mayor shall be ex-officio Chairman of the Appeal Committee. (5) The appeal Committee may for sufficient cause extend the period prescribed for appeal. (6) The Appeal Committee may remand any case for further enquiry or decision or may pass any other order as may be deemed just and proper; and no appeal or revision shall lie against this decision of the Committee, (7) The Appeal Committee may review its own order. Provided that no order under Sub-section (6) or (7) shall be passed to the prejudice of any person until he has been given a reasonable opportunity of being heard. (8) The Appeal Committee may allow any officer deputed by the Commissioner for the purpose to appear before it in any appeal and to watch, or represent the interests of the Corporation. (8) The Appeal Committee may allow any officer deputed by the Commissioner for the purpose to appear before it in any appeal and to watch, or represent the interests of the Corporation. A reading of the aforesaid provisions would make it clear that the Appellate Committee has been conferred with the power of hearing appeals and decide the correctness or otherwise of the orders passed by the Commissioner, as enumerated in Sub-section (2) of Section 403. The Committee may not be termed as a judicial body but it certainly exercise quasi-judicial function in adjudicating appeals preferred before it u/s 403. The word "quasi" literally means "not exactly". It is common place to state that an authority is described as quasi-judicial because it has some of the attributes or trappings of a "Court", but not all. A quasi-judicial function is one which stands mid-way between a judicial and an administrative function. However, before a body is called quasi-judicial, it must be shown having statutory authority to discharge the function in question. It must have power to determine private rights with a binding force, (see: Chapter VII of the Administrative Law II Ird Edn., under the head Quasi-Judicial Functions by D. D. Basu). In the case in hand also the Appellate Committee is a creation of a statute and has been vested with the power to determining private rights with a binding force inasmuch as Sub-section (6) of Section 403 attaches finality to the decision which may be rendered by the Committee. It has also been given power to review its own order. Proviso to Sub-sections (6) and (7) enjoins a duty on the Committee to give opportunity of hearing to a person before any order can be passed to the prejudice of such person. Sub-section (8) also authorise the Committee to allow the Commissioner to depute a person to watch or represent the interest of Corporation during hearing of an appeal by the Committee. There can be thus no manner of doubt that the Appellate Committee is a quasi-judicial body having some of the attributes and trappings of a Court. The question thus arises whether an order passed by the Committee in exercise of its power u/s 403 could form basis for criminal prosecution of the Chairman/Members of the Committee merely because the Committee acted illegally in exercise of its jurisdiction or even acted without jurisdiction. The question thus arises whether an order passed by the Committee in exercise of its power u/s 403 could form basis for criminal prosecution of the Chairman/Members of the Committee merely because the Committee acted illegally in exercise of its jurisdiction or even acted without jurisdiction. Could it be said that it was a case of corruption or bribery on the part of the Chairman/Members of the Committee even without there being an iota of evidence to that effect beyond the order itself passed by the Committee. The answer has to be emphatic No. There is absolutely no evidence of bribery or any familiarity with any of the persons whose cases were compounded by the Committee. The orders for composition were passed not by any individual but by a body of persons five in number. Not only the said orders were subsequently reviewed by the Committee, the cases were also remanded back to the Commissioner for disposal in accordance with law. The illegality, if any, was thus rectified by the Committee itself consisting of same persons, the accused herein. It is pertinent to see that the Commissioner also compounded the said illegal construction though on the conditon of imposition of enhanced penalty. How can then it be said that the Chairman/Members of the Committee were guilty of bribery and corruption. A judicial or quasi-judicial authority cannot be held guilty of corruption only because he or they passed wrong or illegal orders. It is true that an order passed by the Commissioner u/s 307 of the Act did not fall within the purview of orders as enumerated in Sub-section (2) of Section 403 made appealable under that section [Also see: Panch Musalman, 1989 JLJ 468 ]. But, as already stated, mere illegal exercise of jurisdiction is not sufficient to warrant any inference of corruption and cannot be, in absence of any further evidence, a ground for prosecuting the concerning authority judicial or quasi-judicial on any criminal charge of corruption. The Supreme Court in Zunjarrao Bhikaji Nagarkar Vs. But, as already stated, mere illegal exercise of jurisdiction is not sufficient to warrant any inference of corruption and cannot be, in absence of any further evidence, a ground for prosecuting the concerning authority judicial or quasi-judicial on any criminal charge of corruption. The Supreme Court in Zunjarrao Bhikaji Nagarkar Vs. U.O.I. and Others, , where disciplinary proceedings were initiated against a Collector of Central Excise on the ground of his failure to impose penalty on a transporter found gailty of evading excise duty under the provisions of the Central Excise Act, 1944, held: When penalty is not levied, the Assessee certainly benefits but it cannot be said that by not levying penalty, the officer has favoured Assessee or shown undue favour to him.................. That cannot always be a basis for initiating disciplinary proceedings an officer while he is acting as a quasi-judicial authority. It must be kept in mind that being a quasi-judicial authority, he is always subject to judicial supervision in appeal. It was further observed: If every error of law were to constitute a charge of misconduct, it would impinge upon independent functioning of quasi-judicial officers like the Appellant. Misconduct, in sum and substance, is sought to be inferred in the present case from the fact that the Appellant committed an error of law. To maintain a charge sheet against a quasi-judicial authority, something more has to be alleged than a mere mistake of law, eg., in the nature of some extraneous consideration influencing quasi-judicial order The case of Zunjarrao (supra) pertained to disciplinary proceedings only, whereas the accused applicants herein are charged with the offence of bribery and corruption. Needless to say that much higher degree of proof is required to substantiate such a criminal charge which is totally wanting in the instant case. In Criminal Revision No. 630/1998, State of Madhya Pradesh v. Rajeev Jain decided on 20/8/2001, this Court while dealing with a more or less similar situation held: 9. Of course, if the Judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can certainly be prosecuted and punished in criminal courts. However, in the instant case, there is not even an iota of evidence beyond the said two Orders passed by accused Collector to show that he accepted any bribe or been in the least degree corrupt. However, in the instant case, there is not even an iota of evidence beyond the said two Orders passed by accused Collector to show that he accepted any bribe or been in the least degree corrupt. The prosecuting agency cannot be allowed to sit in judgment over the Orders passed on judicial or quasi-judicial side by a Judge. May be that the accused Collector has mistaken even grossly mistaken, yet he acted judicially and for that reason no action shall lie against him. The wrong, if any, committed by him could be corrected in appeal. That cannot always form a basis for initiating criminal proceedings against him while he is acting as a judicial or quasi-judicial authority. It must be kept in mind that he being a quasi-judicial authority he is always subjected to judicial supervision in appeal or by the High Court under Article 226/227 of the Constitution In the instant case also, the orders passed by the Appellate Committee were open to judicial review by this Court and in fact reviewed by the Division Bench of this Court. Consequent to the order passed by this Court, the Committee consisting of the same Chairman/Members reviewed all its orders, recalled the same and remanded the cases back to the Commissioner for disposal in accordance with law. This only goes to show bona fide on the parts of the Chairman/Members of the Committee. It was thus wrong to attribute corruption to them in the matter of passing of those orders. The prosecution against them should, therefore, fail on merits also. Section 402 or the M. P. Act of 1956 provides for indemnity for the act done in good faith by the Corporation or its various authorities. It thus reads: 402. Indemnity for act done in good faith. ? The prosecution against them should, therefore, fail on merits also. Section 402 or the M. P. Act of 1956 provides for indemnity for the act done in good faith by the Corporation or its various authorities. It thus reads: 402. Indemnity for act done in good faith. ? No suit or prosecution shall be maintainable against the Corporation or the Mayor-in-Council, or Councillor or any Corporation Officer or servant, or any person acting under or in accordance with the direction of the Corporation or Mayor-in-Council or any Corporation officer or servant, or of a Magistrate, in respect of anything in good faith done or intended to be done under this Act or under any rule or bye law made thereunder The orders passed in the instant case are thus fully protected by this Section 402 inasmuch as no mala fide could be attributed to the Chairman /Members of the Committee merely because they acted illegally in exercise of jurisdiction conferred on them by Section 403. Sufficient material is available on record to show that in the past also in hundreds of cases, the previous bodies have similarly compounded the illegal constructions by imposing composition fee/penalty. It may be stated here that the Chaimnan/Members were not the law knowing persons and could be misled by the orders passed by their predecessors earlier in the similar cases. The prosecution against them, in my judgment, is wholly illconceived, initiated without any legal basis and is liable to be quashed. As regards, other accused persons, since no prosecution is maintainable against principal accused Madhukar Verma and others, these other accused persons cannot be prosecuted by taking recourse to Section 120B of Indian Penal Code [see: B.H. Narasimha Rao Vs. Government of Andhra Pradesh, ]. These other accused persons are non-public servants. They can only be prosecuted for abetment of the offence u/s 13 of the Act along with the public servants concerned not otherwise. [see: P. Nallammal Etc. Vs. State Rep. by Inspector of Police, ]. The charges framed against them are also, therefore, liable to be quashed. In the result I allow all these revisions, set-aside the orders passed by the trial Court, framing charges against the applicants. They shall stand discharged. This Order be retained in Criminal Revision No. 238/2001 and a copy each be placed in Criminal Revision Nos. The charges framed against them are also, therefore, liable to be quashed. In the result I allow all these revisions, set-aside the orders passed by the trial Court, framing charges against the applicants. They shall stand discharged. This Order be retained in Criminal Revision No. 238/2001 and a copy each be placed in Criminal Revision Nos. 239/2001, 244/2001, 245/2001, 247/2001, 248/2001, 249/2001,250/2001, 251/2001, 252/2001, 253/2001, 254/2001, 283/2001, 284/2001, 285/2001, 286/2001, 287/2001, 288/2001 and 550/2001.