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2017 DIGILAW 138 (MP)

Bhawna Kale v. State of M. P.

2017-01-27

A.K.SHRIVASTAVA, ATUL SREEDHARAN, C.V.SIRPURKAR

body2017
ORDER Sirpurkar, J.-- 1. By order dated 12.1.2017, the Court had observed that following four preliminary questions arise for consideration before the Full Bench : (i) Whether an application for withdrawal by the petitioner can be considered by this Bench or it is required to be posted before the Division Bench for consideration? (ii) Since no question has been formulated by referring bench; whether the Full Bench has jurisdiction to delve into the matter and cull out for itself the questions involved and then answer them? (iii) Whether the Full Bench has jurisdiction to call for and decide Criminal Revisions No. 581/2016 and 599/2016, which allegedly involve the same question, analogously with MCrC No. 17270/2016 ? (iv) Whether in view of pendency of the lis challenging the order dated 8.7.2016 passed in MCrC No. 9915/2015 before the Supreme Court, the Full Bench should stay its hands for the present ? 2. Heard learned counsel for the parties and learned amicus curiae on all four questions, at length. For the sake of convenience, the Bench shall firstly consider question no. (iii). This matter has been referred to the Full Bench on the direction of Hon’ble Acting the Chief Justice dated 25.10.2016. in view of order dated 14.10.2016, passed by a division bench comprising of Hon’ble Shri Justice S.K.Seth and Hon’ble Shri Justice G.S. Ahluwalia. The Division Bench in its order dated 14.10.2016 had made following observations : " The aforesaid judgment has been followed and relied upon by the Supreme Court in the case of Union of India v. Prakash P. Hinduja and another, [ AIR 2003 SC 2612 ]. Thus, it is clear that once the charge-sheet is filed, merely because the investigating agency had no jurisdiction to investigate the matter, the charge-sheet cannot be quashed as it is not possible to say that cognizance on an invalid police report is prohibited and, is, therefore, a nullity. In view of the aforesaid discussion, we respectfully differ from the order rendered by the Coordinate Bench of this Court in MCrC No. 9915/2015. We, therefore, direct the Registry to place the papers before Hon’ble The Acting Chief Justice for necessary orders to resolve the controversy. In view of the aforesaid discussion, we respectfully differ from the order rendered by the Coordinate Bench of this Court in MCrC No. 9915/2015. We, therefore, direct the Registry to place the papers before Hon’ble The Acting Chief Justice for necessary orders to resolve the controversy. Aforesaid directions were made by the division bench in the backdrop of the earlier judgment passed by another division bench comprising Hon’ble Shri Justice S.K. Gangele and Hon’ble Shri Justice Ashok Kumar Joshi in MCrC No. 9915/2015, whereby the final report under section 173(2) of the CrPC in Crime No. 47/2015 registered by P.S. Harda, District-Harda and the criminal proceedings arising therefrom, were quashed holding as follows : In this view of the matter, the investigation conducted by the local police and the charge-sheet filed by the police against the petitioner is without power and authority in regard to special offences i.e. punishable under the Prevention of Corruption Act 1988, because the matter is interrelated hence, it would not be appropriate that local police may prosecute the petitioner for other offences also. Consequently, the charge-sheet and the criminal proceedings initiated against the petitioner vide Crime No. 47/2015 registered at Police Station Harda are hereby quashed being without jurisdiction. It is hereby clarified that this Court has not opined on the merits of the case and the competence of competent prosecuting Agency. The matter has been referred to a Larger Bench presumably under rule 12 of Chapter IV of the High Court of Madhya Pradesh Rules, 2008, as rule 8 applies to a case where a substantial question of law of general importance is involved and not where an earlier decision of a co-ordinate Bench requires reconsideration. Though, it may be noted that no question has been formulated for reference to the Larger Bench. 3. Thus, it is clear that the matter has been referred to the Larger Bench to resolve the controversy which arose because the division Bench headed by Hon’ble Shri Justice S.K. Seth did not concur with the view taken by the division bench headed by Hon’ble Shri Justice S. K. Gangele with regard to jurisdiction of the State police to investigate a case involving offences punishable under the provisions of the Prevention of Corruption Act, 1988. If Criminal Revisions No. 581/2016 and 599/2016 involve same or similar questions, they may be decided as covered cases after the resolution of aforesaid controversy in the instant case by the Full Bench. Learned counsel appearing for the parties in those cases are free to address the Full Bench; however, the Full Bench, which has been constituted in a specific case, has no jurisdiction to call for and hear analogously, Criminal Revisions No. 581/2016 and 599/2016 because those cases have not been referred by Hon’ble the Acting Chief Justice to this Bench. 4. As such, the preliminary question No. 3 is answered accordingly. Preliminary questions No. (1) and (2) 5. No sooner this Bench had assembled for the first time on 8.12.2016, then learned counsel for the petitioner Shri Siddharth Gupta had invited attention of the Bench to I.A.No. 23969/2016 filed by the petitioner for withdrawal of this petition under section 482 of the Code of Criminal Procedure (Bhawna Kale v. State of Madhya Pradesh in MCrC No. 17270/2016) on the ground that the order dated 8.7.2016 passed in MCrC No. 9915/2015 by the Division Bench headed by Hon’ble Shri Justice S.K. Gangele, has been challenged before the Supreme Court; therefore, the petitioner did not wish to prosecute this case any further and prayed for its withdrawal with liberty to re-agitate the matter after disposal of proceedings before the Supreme Court. 6. As already observed by us, this matter has been referred to a Larger Bench presumably under rule 12 of Chapter IV of the High Court of Madhya Pradesh Rules, 2008 because it involves reconsideration of an earlier decision of a Coordinate Bench, though no question has been formulated for reference to the Larger Bench. 7. In this regard, inviting attention of the Bench to various authorities, learned amicus curiae submits that though, in some of the cases, it has been held that the Larger Bench can only answer those questions that have been referred to it, in some others, where precise questions had not been formulated by the referring Benches, the Larger Benches had proceeded to formulate the questions for itself and had then answered the same. It has been contended that even if no precise question has been referred for answer by the Larger Bench, this Bench has jurisdiction to cull out the questions, which are at the root of the controversy and may then answer the same. If the Bench adopts such a course, the application for withdrawal of the petition, shall become redundant. It has further been contended that in any case, I.A.No. 23969/2016 is not for unconditional withdrawal but is for withdrawal with liberty to reagitate the matter after the decision of the Supreme Court. 8. In our opinion, this question has to be addressed with reference to the provision of rule 12 of Chapter IV of the High Court of Madhya Pradesh Rules, 2008, which reads as hereunder : 12 Where a Division Bench or a full bench while hearing a case is of the opinion that for the decision of that case, an earlier decision of Coordinate or Larger Bench of this Court needs reconsideration, it may formulate question(s) and refer the same to the Chief Justice with a recommendation that it be placed before a larger Bench.The referring Bench shall thereafter, dispose of the case in accordance with the opinion of the Larger Bench on the referred question (s). 9. Thus, where the Division Bench is of the view that an earlier decision of a Coordinate Bench needs reconsideration, it may formulate question(s) and refer the same to the Chief Justice with a recommendation that it be placed before a Larger Bench. The referring Bench shall thereafter, dispose of the case in accordance with the opinion of the Larger Bench on the referred questions. It is true that in rule 12 word "may" and not "shall" has been used, which ex facie indicates that the referring Bench has a discretion either to formulate or not to formulate question (s); however, immediately thereafter, the Rule states that and refer the same to the Chief Justice. The phrase “the same” connotes the question (s), which signifies that what is required to be referred to the Chief Justice with a recommendation that it be placed before the Larger Bench, is question (s). Hence, it is incumbent upon the referring bench to formulate question (s) for reference to a larger bench. In this situation, the word may occurring between words it” and “formulate will have to be read as shall. Hence, it is incumbent upon the referring bench to formulate question (s) for reference to a larger bench. In this situation, the word may occurring between words it” and “formulate will have to be read as shall. This view is fortified by the last sentence of the rule, which reads as follows : "The referring Bench shall thereafter, dispose of the case in accordance with the opinion of the larger bench on the referred question (s)."� The rule 12 does not envisage reference of a nebulous controversy or entire case to a larger bench at all. 10. In this view of the matter, the question (s) involved in the case is required to be formulated by the referring bench and the referee Bench has jurisdiction only to answer the question (s) referred to it. As per the scheme of rule 12, the case thereafter, is required to be decided by the referring Bench in accordance with the opinion of the Larger Bench on referred question (s). 11. In view of foregoing discussion, it would not be appropriate for this bench to attempt to formulate questions involved in the controversy. This task is required to be performed by the referring Bench. 12. Moreover, we have an application for withdrawal of the proceedings which has given rise to the controversy. We cannot ignore this application and proceed to resolve the controversy which is not before us in the form of a precise question. Thus, what is before us is not the case, wherein the controversy has arisen but only the controversy. The sei sin of the case is still with the Division Bench, which alone is competent to decide the application for withdrawal; therefore, the matter is required to be sent back to the Division Bench for disposal of the application for withdrawal in accordance with law. In case the application for withdrawal is allowed and the case is dismissed as withdrawn, the controversy would cease to exist and the reference may not be warranted. 13. The questions No. (1) & (2) are answered accordingly. Question No.(4). 14. In the light of the view taken by us on questions No. 1, 2 and 3, question No. 4 need not be answered for the present. 15. 13. The questions No. (1) & (2) are answered accordingly. Question No.(4). 14. In the light of the view taken by us on questions No. 1, 2 and 3, question No. 4 need not be answered for the present. 15. On the basis of foregoing discussion, let the matter be placed before Hon’ble the Acting Chief Justice for being posted before the Division Bench for : (i) disposal of I.A.No. 23969/2016 for withdrawal; and (ii) in case the application is disallowed, for formulation of the question (s) for being referred to the Larger Bench.