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2017 DIGILAW 900 (MP)

Vinay Kumar v. State of Madhya Pradesh

2017-08-10

SHEEL NAGU

body2017
ORDER : Sheel Nagu, J. 1. This order shall govern disposal of Cri. Rev. No. 365/12 (Vinay Kumar Vs. State of M.P.) and Cri. Rev. No. 969/13 (A.K. Bansal Vs. State of M.P.). 2. The revisional powers of this Court u/S. 397 Cr.P.C. are invoked to assail framing of charge against the petitioners by the impugned order dated 7/5/2012 in Sessions Case No. 2/2002 alleging offences punishable u/Ss. 120-B, 465 and 471 of I.P.C. 3. Facts giving rise to the present case are that the petitioner Vinay Kumar being Assistant Engineer and petitioner A.K. Bansal being Revenue Inspector at Municipal Council, Morena (M.P.) are implicated in the offence of forgery and criminal conspiracy for having jointly moved a note-sheet proposing allotment of 22,600 sq. ft. of land reserved for stadium, for the purpose of allotment of plots under Awaas Grah Yojna for the employees of Municipal Council, Morena at a rate of Rs. 10/- per sq. ft. which was much lower to the prevailing market value and by wrongly mentioning that the land is not required for the purpose of stadium. It is further alleged that the petitioner would have also been one of the beneficiaries of the said proposal. 4. After lodging of the FIR, investigation was conducted. The sanction for prosecution was obtained from the State and charge-sheet was filed wherein charges have been framed as enumerated above which are under challenge. 5. Learned counsel for the respondent-State has raised preliminary objection as to maintainability of this petition on the ground that the present revision is not maintainable as a trial in relation to the offences in question is exclusively triable by the courts constituted under the Madhya Pradesh Vishesh Nyayalaya Adhiniyam, 2011 (for brevity Adhiniyam 2011). 5.1 The said preliminary submission of the State is being considered to be rejected at the very outset as Sec. 2(e) of the Adhiniyam 2011 clearly provides that the offences contemplated under the Adhiniyam are those which either independently attract Sec. 13(1)(e) of the Prevention of Corruption Act (for short the PC Act) or in combination with any other provision of the PC Act or any of the provisions of the I.P.C. Provision of Sec. 2(e) is reproduced below for ready reference and convenience. “2(e) "offence" means an offence of criminal misconduct which attracts application of Section 13(l) (e) of the Act either independently or in combination with any other provision of the Act or any of the provision of Indian Penal Code, 1860 (45 of 1860); 5.2 A bare perusal of the above definition of “offence” makes it clear that the Adhiniyam 2011 comes into operation only when the offence u/S. 13(1)(e) independently or in combination with other provision of the PC Act or any provision of the IPC is alleged in any case and not otherwise. In the instant case, Sec. 13(1)(e) of the PC Act has not been alleged against the petitioners who in fact are charged with offences punishable u/Ss. 120-B, 465 and 471 of I.P.C. 5.3 At this juncture, it is relevant to deal with the feeble attempt of the learned counsel for the prosecution-respondent to contend that the expression “.................or any other provision of I.P.C.” found in the definition of offence S. 2(e) of 2011 Adhiniyam should be read to include even those offences of criminal misconduct which attract the provision of I.P.C. simplicitor. This argument holds no water as a close scrutiny of the definition of “offence” u/S. 2(e) makes it clear that presence of allegation under Sec. 13(1)(e) is an essential ingredient to constitute offence defined in section 2(1)(e) and thereby attract Adhiniyam 2011. The expression “---------or any of the provisions of the I.P.C.” found in Sec. 2(e) is to be read in conjunction in the following manner:- “................offence of criminal misconduct which attracts application of Sec. 13(1)(e) of the Act either independently or in combination with........any of the provisions of I.P.C.” 5.4 If the contention of the learned counsel for the State is accepted then an incongruous situation would arise where offences of conspiracy and forgery punishable exclusively under the IPC would have to be tried by Special Courts constituted under 2011 Adhiniyam despite offence u/S. 13(1)(e) of PC Act not being alleged. 5.5 More so, this course of action as suggested by the learned counsel for the State would render the very foundational object of 2011 Adhiniyam nugatory. 5.5 More so, this course of action as suggested by the learned counsel for the State would render the very foundational object of 2011 Adhiniyam nugatory. The object of this Adhiniyam is to expedite the trials of offences related to disproportionate assets punishable u/S 13(1)(e) of the PC Act, simplicitor or in combination with other offences under IPC by establishment of Special Courts and laying down procedure for confiscation of unaccounted property and money procured by means of offence defined u/S 2(1)(e) of 2011 Adhiniyam. 5.6 Thus, the allegation if made merely in respect of offence in IPC (as is the case herein) without involvement of Section 13(1)(e) would not attract the provisions of Act of 2011. Thus, the present revision against an order of framing of charge u/Ss. 120-B, 465 and 471 I.P.C. is maintainable. 6. Learned counsel for the petitioners has raised two fold submissions. The first is in respect of technical ground of sanction for prosecution having been granted by incompetent authority. The other ground is of merit which shall be dealt with later on. 6.1 Taking up the first technical ground of incompetence authority granting sanction for prosecution, it is seen from the record that sanction has been granted by the State Govt. (Department of Law and Legislative Affairs, Bhopal). 6.2 The objection of the petitioners is that they are employees of the Municipal Council and not of the State Govt. and therefore the Municipal Council alone is empowered to grant sanction for prosecution of the petitioners. 6.3 Sec. 19(1)(c) of the PC Act prescribes obtaining of prior sanction for prosecution from an authority competent to remove a public servant from his office. 6.4 The Trial Court while rejecting the said argument of the petitioners has drawn support from Sec. 94 of the M.P. Municipalities Act, 1961 by holding that since every appointment made by the Municipal Council is subject to approval by the State Govt., which thus has final and substantial role to play in the process of appointment and therefore necessarily in removal of the petitioners from the office. On the basis of this reason, the court-below found that the State Govt. satisfies the requirement of competent authority u/S. 19(1)(c) of the PC Act. 7. The second technical ground raised by the learned counsel for the petitioners is of incompetence of the State Govt. On the basis of this reason, the court-below found that the State Govt. satisfies the requirement of competent authority u/S. 19(1)(c) of the PC Act. 7. The second technical ground raised by the learned counsel for the petitioners is of incompetence of the State Govt. to grant sanction for prosecution u/S. 19(1)(c) of the PC Act in the face of the M.P. Municipalities Act, 1961 and the Rules framed thereunder categorically prescribing the Municipal Council as the appointing authority qua the petitioners. 7.1 This issue of legality and validity and competence of an authority superior to the appointing or disciplinary authority for the purpose of grant of sanction for prosecution is no more res integra in view of the Apex Court decision in the case of State of T.N. Vs. T. Thulasingham & others reported in 1994 Supp.(2) SCC 405 in which the Apex Court in para 77 held thus:- “77. The last finding of the High Court in reversing the decision of the trial court so far as it upheld the sanction for prosecution of the employees is again erroneous. The High Court was in error in its view that only the special officer appointed by the Corporation, when it was superseded, was competent to grant the sanction. It will be noticed that here the sanction had been given by the superior authority, namely the Government itself which appointed the special officer. Once the sanction is granted by the superior authority it does not get invalidated. It could be invalid if the sanction had been granted by the authority subordinate to the authority who had to grant the sanction and in that case would have been subject to challenge. We thus find that the trial court was right in holding that the sanction was validly granted by the competent authority.” 7.2 The above said decision has been followed in the case of State of M.P. Vs. Pradeep Kumar Gupta reported in (2011) 6 SCC 389 . The above said view of the Apex court continues to hold the field till date. 7.3 Therefore, the State Govt. being an authority superior to that of Municipal Council and having supervisory powers over the same including power of validating an appointment made u/S. 94 of the M.P. Municipalities Act, assumes the colour and character of appointing authority. The above said view of the Apex court continues to hold the field till date. 7.3 Therefore, the State Govt. being an authority superior to that of Municipal Council and having supervisory powers over the same including power of validating an appointment made u/S. 94 of the M.P. Municipalities Act, assumes the colour and character of appointing authority. Once having satisfied the definition of the appointing authority in terms of the law laid down by the Apex court, the State Govt. partakes as the authority competent to remove the petitioners from the respective posts thereby satisfying the requirement of Sec. 19(1)(c) of the PC Act. 7.4 Thus, no fault can be found with the order of sanction for prosecution issued by the State Govt. 8. As regards the arguments on merits, it is seen that the prosecution has alleged conspiracy and forgery against the petitioners. It is alleged that the note-sheet moved by the petitioners proposing allotment of the land in favour of the employees of the Municipal Council intentionally did not mention survey numbers and area of the land so as to prevent detection of the criminal act of conspiracy and forgery. It is further alleged by the prosecution that the land in question was proposed to be allotted at a highly depressed rate of Rs. 10/- per sq.ft. More so, it is alleged that the land was wrongly mentioned as not required for stadium. It is further alleged that the note-sheet of the petitioners further failed to disclose material fact that the land in question which was proposed to be allotted belongs to the Govt. and not to the Municipal Council. 8.1 In this regard, learned counsel for the petitioners has drawn attention of this court to a document brought on record by the petitioners vide document No. 2482/12 filed on 25/6/2012 that in revenue record the rate of the land in question was as low as Rs. 6/- per sq.ft., and therefore it is contended that proposal for allotment of the land made by petitioners at the rate of Rs. 10/- per sq. ft. cannot be found fault with. 8.2 A bare perusal of the said document, which though is not part of the charge-sheet, does not disclose the period during which the rate of Rs. 6/- per sq. ft. was prescribed. 10/- per sq. ft. cannot be found fault with. 8.2 A bare perusal of the said document, which though is not part of the charge-sheet, does not disclose the period during which the rate of Rs. 6/- per sq. ft. was prescribed. However, a close scrutiny indicates that the said document pertains to the year 1991 and therefore does not relate to the period in question, i.e., 1994-95, and therefore the said document is of no avail. 8.3 The prosecution has brought on record guidelines issued by the Collector, Morena for the year 1994-95 which prescribe Rs. 90/- per sq.ft., as rate of land in the area in question. 9. From the above, it is evident that the material brought on record by the prosecution prima facie indicates a strong suspicion of the offence of conspiracy and forgery punishable u/Ss. 120-B, 465 and 471 of I.P.C. against the petitioners. 9.1 The basic ingredient of forgery as contained in Sec. 463 I.P.C. is of making of false document inter alia causing any person to part with property with intention to commit fraud, which appears to be satisfied in the present case on prima facie assessment. 9.2 Whether mens rea behind the act of forgery is present or not cannot be decided at this early stage and is best to be left to be adjudicated by the Trial Court after marshalling of evidence. 9.3 From the above discussions, this court is satisfied that no illegality or impropriety is committed by the Trial Court in framing of charge against the petitioners u/Ss. 120-B, 465 and 471 of I.P.C. 10. Consequently, the revisions fail and are dismissed, sans cost.