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Madhya Pradesh High Court · body

2012 DIGILAW 142 (MP)

State of M. P. v. Nanhe Singh

2012-02-01

M.A.SIDDIQUI, RAKESH SAKSENA

body2012
JUDGMENT : Rakesh Saksena , J . : - Statehas filed this revision against the order dated 13-1-2001 passed by SpecialJudge (Prevention of Corruption Act), Mandla inSpecial Case No. 1/95 whereby learned Special Judge discharged the respondentof the charges under Sections 1 and 13 (1) (d) read with Section 13 (2) of thePrevention of Corruption Act (for brevity 'the Act'). 2.Brief history of the case is that a First Information Report was recorded bySpecial Police Establishment, Lokayukt thatrespondent, who happened to be the MLA from Dindori ,demanded and received Rs . 20,000/- as bribe from fourcomplainants for their appointments on the post of Teacher. After completion ofinvestigation, petitioner filed charge-sheet against the respondent withoutobtaining sanction for prosecution under Section 19 of the Act. 3.Charge-sheet was filed in the Court of Special Judge on 17-5-1995 . On 29-5-1995 , a bailable warrantwas issued for securing presence of respondent in the Court. On 18-12-1995 charges under Sections 7and 13 (1) (d) read with Section 13(2) of the Act were framed and the case was fixed for recording of theevidence. Statements of 12 prosecution witnesses were recorded till 8-9-1998 . 4.In the course of trial, respondent filed number of applications challenging hisprosecution in the absence of sanction under Section 19 of the Act, but theywere rejected on the ground that he did not challenge the order of takingcognizance and of framing charge in the High Court. However, on 13-1-2001,learned Special Judge in the light of Apex Court's decision rendered in P.V. Narasimha Rao Vs. State(CBI/SPE), AIR 1998 SC 2120 , holding that since respondent, at the time oftaking cognizance, was a member of Legislative Assembly, as such a publicservant, the prosecution against him could not be continued, discharged him.Aggrieved by the aforesaid order, petitioner 'SPE' has filed this revision. 5.Learned Counsel for the petitioner submitted that once cognizance against therespondent was taken, the charges were framed and the evidence was recorded,the respondent could not have been discharged since the impugned order ofdischarge amounted to recall or review of the order taking cognizance orframing charge in the case against the respondent. He placed reliance on thelaw laid by the Apex Court in the case of Adalat Prasad Vs. Rooplal Jindal and others, (2004) 7 SCC 338 and Everest Advertising (P) Ltd. Vs. State, Govt.of NCT of Delhi and others, (2007) 5 SCC 54 . He placed reliance on thelaw laid by the Apex Court in the case of Adalat Prasad Vs. Rooplal Jindal and others, (2004) 7 SCC 338 and Everest Advertising (P) Ltd. Vs. State, Govt.of NCT of Delhi and others, (2007) 5 SCC 54 . In the case of Adalat Prasad (supra), Apex Court observed : "It is true that if a Magistratetakes cognizance of an offence, issues process without there being anyallegation against the accused or any material implicating the accused or incontravention of provisions of Sections 200 and 202, the order of theMagistrate may be vitiated, but then the relief an aggrieved accused can obtainat that stage is not by invoking Section 203, Cr.PC because the Code does not contemplate a review of an order. Hence, in theabsence of any review power or inherent power with the Subordinate CriminalCourts, the remedy lies in invoking Section 482, Cr.PC .The view of the Supreme Court in Mathew case, (1992) 1 SCC 217 , that nospecific provision is required for recalling an erroneous order, amounting toone without jurisdiction, does not lay down the correct law". Similarly inthe case of Everest Advertising (P) Ltd (supra), approving the decisionrendered by it in Adalat Prasad (supra), SupremeCourt held that in a case where summons were issued by the learned Magistrateby reason of an order. He recalled the said order. He did not have anyjurisdiction in that behalf. A Magistrate does not have and, thus, cannotexercise any inherent jurisdiction. 6.In the case of Bholu Ram Vs. State of Punjab, (2008)9 SCC 140, Apex Court observed : "If the act oftaking cognizance, issuance of process or joining of an innocent person as anaccused is totally uncalled for or ex facie bad in law, it is open to theaggrieved party to invoke inherent jurisdiction of the High Court under Section482, Cr.PC . If the High Court is satisfied that theorder passed by the Magistrate was illegal, improper or arbitrary, it canexercise inherent powers and quash criminal proceedings initiated against theparty. But that power is independent and has nothing to do with recalling of anearlier order by the Court which passed it". 7.It has been settled by the Supreme Court in P.V. Narasimha Rao's case (supra), that a member of Parliament or a member of State Legislature who holds an office and isrequired to perform public duties is, therefore, a 'public servant'. 7.It has been settled by the Supreme Court in P.V. Narasimha Rao's case (supra), that a member of Parliament or a member of State Legislature who holds an office and isrequired to perform public duties is, therefore, a 'public servant'. No doubtcognizance against a public servant for an offence under the provision of theAct cannot be taken in the absence of previous sanction under Section 19 of theAct, but the settled position of law is that once the cognizance is taken, thesaid order cannot be recalled or reviewed by the same Court even if the samehappened to be illegal or bad in law. It would only be open to the aggrievedparty to invoke the revisional or inherentjurisdiction of the High Court, as the case may be, to get the illegality ormistake rectified. 8.Taking into consideration the facts and circumstances of the present case, inthe light of the aforesaid propositions of law, we are of the view that thelearned Special Judge committed error in recalling the order taking cognizanceand discharging the respondent. Accordingly, the impugned order passed by thelearned Special Judge is set aside. 9.In the peculiar facts and circumstances of the case, in view of the law laiddown by the Apex Court in the case of P. V. Narasimha Rao (supra) and also in view of the ratio of DivisionBench decision of this Court rendered in Gdmbhir Singh and another Vs. State of M.P., M.Cr.C . No.9098/2010, dated 11-2-2011 (Jab. Bench), we hold that taking of cognizanceagainst the respondent for the offence under Sections 7 and 13 (1) (d) readwith Section 13 (2) of the Act in the absence of sanction under Section 19 ofthe Act, at the time when respondent was a sitting MLA, was incompetent andillegal and, therefore, deserved to be quashed. Accordingly, the order oftaking cognizance and consequent criminal proceedings against the respondentincluding charges are quashed. TheSpecial Judge shall, however, be at liberty to consider the matter for takingcognizance afresh against the respondent in case requisite sanction is obtainedby petitioner or the petitioner is able to establish that the need of sanctionfor taking cognizance against the respondent is not longer an essentialityaccording to law. 11.Subject to above directions, the revision stands disposed of. 12.Record of the Trial Court be sent back immediately.