Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 228 (MP)

Pratap Singh Dhurve v. State of M. P.

2018-02-26

ANURAG SHRIVASTAVA, S.K.SETH

body2018
ORDER Shrivastava,J.--1. The present petition has been preferred by the petitioner for quashing the order of grant of sanction to prosecute the petitioner dated 11.8.2017 under offence punishable under sections 420, 467, 471, 120B, 34 of Penal Code. 2. As per prosecution the petitioner was posted as Tashildar, Seoni in the year 2007. The Sub-Divisional Officer, Seoni on 30.4.2009 submitted a report at Police Station Bandol, wherein it is alleged that one Patwari Kamta Prasad in connivance with present petitioner and other co-accused persons made false entries in revenue records showing the Government land falsely mutated on the name of private persons. These entries are verified and certified by the petitioner. The police registered Crime Nos. 98/2009, 99/2009 and 100/2009 under sections 420, 467, 471 and 120B of IPC. and after investigation the matter was referred to Government (GAD) for grant of sanction for prosecution, which later on accorded by impugned order dated 18.8.2017 (Annexure P/1). 3. It is contended by the learned counsel for the petitioner that the petitioner was given a charge sheet dated 4.6.2009 (Annexure P-4) pertaining to the same incident. The charges are relating to fabrication of revenue record Khasra No. 391, area 3.94 hect., Khasra No. 413, area 30.10 hect., Khasra No. 354, area 64.70 hect., Khasra No. 365/1, area 0.60 hect., Khasra No. 327,area 1.82 hect., Khasra No. 285, area 0.72 hect., Khasra No. 353, area 1.10 hect. and Khasra No. 372, area 1.17 hect., etc. 4. It is further submitted by learned counsel that a regular departmental inquiry was conducted against the petitioner on above charges by order of Commissioner. On conclusion of departmental inquiry, respondents No. 1 and 2 passed the order dated 26.9.2014 (Annexure P-7) and found the charges against the petitioner is not proved and exonerated him and closed the proceedings. Thereafter, petitioner was reinstated after cancellation of suspension by the government vide order dated 2.12.2015 (Annexure P-10). The petitioner was already promoted and working as Deputy Collector at present. 5. It is submitted by learned counsel that on 1/6.10.2015, the Under Secretary, Revenue illegally cancelled the order of acquittal dated 26.9.2014 (Annexure P-7) passed in departmental inquiry without any notice or affording hearing to petitioner. Against this order the petitioner has preferred Writ Petition No. 19161/2015 where interim stay has been granted in his favour. 6. 5. It is submitted by learned counsel that on 1/6.10.2015, the Under Secretary, Revenue illegally cancelled the order of acquittal dated 26.9.2014 (Annexure P-7) passed in departmental inquiry without any notice or affording hearing to petitioner. Against this order the petitioner has preferred Writ Petition No. 19161/2015 where interim stay has been granted in his favour. 6. It is argued by the learned counsel for the petitioner that in departmental inquiry it is duly established that the petitioner was innocent and all the fabrication in revenue records were made by the then Patwari. The petitioner has not certified any false entries and on the basis of this he was exonerated. The sanctioning authority without any reasoning or any consideration whatsoever of the merits of the case in mechanical way accorded sanction. The incident is of 1.12.2007 and FIR is lodged on 30.4.2009. After the lapse of 10 years the sanction cannot be legally granted. The sanction is granted for offence punishable under Penal Code only. The sanction order shows that it is granted under section 19 of Prevention of Corruption Act., which is not a valid sanction. 7. Per contra, it is contended by the learned counsel for respondents that for the offence entailing cheating forgery by Government servant no sanction for prosecution is required and even if a formal sanction is issued the petitioner would not get exoneration from the consequences of committing such offence merely on the ground of delay in sanction. The sanction order is passed considering the material available on record and after application of mind. The finding of exoneration in departmental inquiry have no bearing on criminal case, which requires prove beyond reasonable doubt. In the present case, the petitioner deliberately altered the revenue entries in order to give undue benefits to private persons. 8. Considered the rival contention of the learned counsel for the parties and perused the record. It is alleged that working as Tahsildar the petitioner in connivance with Patwari and other coaccused persons falsely verified the manipulated revenue records prepared by Patwari and certified the entries wherein a large number of Government land has been falsely got recorded on the name of private persons. The police after investigation found the involvement of present petitioner in commission of alleged crime. 9. The police after investigation found the involvement of present petitioner in commission of alleged crime. 9. It is vehemently contended by learned counsel for the petitioner that in the departmental inquiry conducted against the petitioner on the same charges, he has been exonerated. Therefore, he cannot be prosecuted for the same charges. We are not agree with aforesaid contention. 10. Hon’ble apex Court in Superintendent of Police v. Deepak Choudhary [ (1995) 6 SCC 225 ], observed that the grant of sanction is only an administrative function. The exoneration of petitioner by the disciplinary authority in departmental inquiry is not relevant. What is necessary and material is whether the facts collected during investigation would constitute the offence for which the sanction has been sought for. Similar principle is reiterated in case law State (NCT of Delhi) v. Ajay Kumar Tyagi [ (2012) 9 SCC 685 ]. Hon’ble apex Court in paras 24 and 25 observed as under : “24. Therefore, in our opinion, the High Court quashed the prosecution on total misreading of the judgment in the case of P.S. Rajya (supra). In fact, there are precedents, to which we have referred to above speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the report of the Inquiry Officer based on those evidence. 25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy.” 11. Thus, in the present case simply on the ground that the petitioner is exonerated in departmental inquiry, the criminal prosecution against him cannot be quashed. The criminal case has to be decided on the basis of evidence adduced therein and cannot be rejected on the basis of evidence in departmental proceedings or report of Enquiry Officer. In present case the report of Enquiry Officer and its findings have been turned down by the Government vide order dated 6.10.2015 (Annexure P-8). 12. As far as validity of sanction order (Annexure P/1) is concerned on its perusal prima facie it appears that the sanctioning authority has considered the investigation report, material available in case diary and after giving elaborate description of the facts in paras 3 to 8 of the order, the sanction was accorded. In paras 14 and 16 of the order it is mentioned that the sanction is being considered under the provisions of Section 197 of CrPC as well as section 19 of Prevention of Corruption Act. Therefore, at this stage it cannot be said that the sanction was accorded without consideration of relevant material, application of mind and without subjective satisfaction of sanctioning authority. Hon’ble apex Court in case law State of Maharastra through C.B.I v. Mahesh G. Jain [ (2013)8 SCC 119 ], while summarizing the principles for grant of sanction observed in para 14 as under : “14. From the aforesaid authorities the following principles can be culled out : (a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. (b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution. (b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution. (c) The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him. (d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. (e) The adequacy of material placed before the sanctioning authority cannot be gone into by the Court as it does not sit in appeal over the sanction order. (f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction. (g) The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity.” 13. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction arrived at upon perusal of material placed before him. At this stage it cannot be prima facie held that the sanction was accorded without following the above principles. In view of aforesaid, without making any observation on merits of the case, we do not find any illegality in the sanction for prosecution of the petitioner accorded by Government in the present case. 14. Consequently, petition is dismissed.