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Jitendra Kumar Jain & Others v/s State of MP

    CRR. Nos. 752, 765, 919, 974, 1201 & 3093 of 2017

    Decided On, 02 January 2019

    At, High Court of Madhya Pradesh Bench at Indore

    By, THE HONOURABLE MR. JUSTICE S.C. SHARMA & THE HONOURABLE MR. JUSTICE VIRENDER SINGH

    For the Petitioners: P. Mathur, Learned Senior Counsel with M.S. Dwivedi, Ankur Mody, R.K. Gondale, Ajay Bagadiya, Nilesh Sharma, Learned Counsels. For the Respondent: Govind Purohit, Learned Counsel.



Judgment Text

Virender Singh, J.

1. All these petitions have arisen out of the same order of framing charges against the petitioners, therefore, they were heard analogously and are being decided by this common order.

2. Grievance of the petitioners is that without any basis, without any evidence whether documentary or otherwise, without any application of mind and without appreciating the evidence and in a very casual manner the learned trial Court has framed charges under section 120-B, 420, 467/34, 468/34, 471/34, 409/34 of the IPC and section 13(1)(D) read with section 13(2) of the Prevention of Corruption Act (hereinafter referred to as "The Act of 1988") vide order dated 23.03.2017 against them. This order is under challenge in all five petitions.

3. Undisputed facts of the case are that for the area likely to submerge in the Sardar Sarover Dam, the Narmada Valley Development Authority (NVDA) deployed several officers to carry out the work of survey, assessment, valuation, determination of compensation and other subsequent/consequential works necessary for acquisition of the land, plots, houses etc. Several divisions and sub-divisions were constituted to carry out the work. Villages Mandwara and Chichli were under Sub- division No.7 of Division No.3.

4. Allegation against the petitioners is that they all together hatched a conspiracy and in furtherance of the same, carried out misleading and erroneous survey of back water level of Sardar Sarover Dam, brought 13 houses of village Mandawa and 1 house of village Chichli in expected submergence area while actually they were not falling under that area, did valuation of those houses, fabricated falls documents, prepared sham proposals, caused publication of notice under section 4 & 6 of the Land Acquisition Act, 1894, forwarded it to the Collector and ensured the payment of compensation to the persons not entitled for the same and thus, caused wrongful loss to the tune of Rs.59,86,393/- to the State Exchequer.

5. Petitioner Ajay Rishi (CRR 765/17) was In-charge Executive Engineer, Pramil Kumar Yadav (Cr.R No.919/2017) was Executive Engineer, Ashok Kumar Gupta (CRR No.974/2017) and Jai Narayan Taur (CRR No.1201/2017) were Sub Divisional Officers (SDO) and Jitendra Kumar Jain (CRR 752/17) and Baburao Lokhande (CRR 765/17) were Sub Engineers posted at Rehabilitation Division No. 3, District Badwani, Madhya Pradesh.

6. Broadly, common grounds taken by all the petitioners to challenge the impugned order are that the entire proceeding of showing those 14 houses under submergence area is based on the survey and notification published under Section 4 of the Land Acquisition Act, 1894 carried out by the officials posted at Sub-Division No.7, while none of them was posted at this Division/Sub-Division at that time and they only followed the norms as prescribed by their predecessors, a departmental inquiry was initiated against them for the same charge but all of them are exonerated and for the same charges criminal proceedings cannot be initiated and lastly prosecution sanction to prosecute them is granted by an incompetent authority, therefore, their prosecution cannot be permitted to continue as it is sheer abuse of process of law.

7. It is the ground of Sub engineer Jitendra Kumar Jain that he was posted at Sub-Division No. 8 (from 15/07/2002 till 30/04/2003 Annx P/7) at the time of publication of notification under Section 4 of the Act, 1894. Survey of the properties which were likely to come under submergence was conducted by Sub Division No. 7. After the survey, acquisition of the properties in the village Mandwara and Chichli coming under submergence was recommended to the Land Acquisition Officer (LAO) vide letter dated 30/08/2002 & 06/09/2002 (Anx P/2 & 3). Based on the aforesaid recommendation the Collector Badwani published gazette notification dated 13/09/2002 under Section 4 of the Act, 1894. He was only asked to prepare proposal for notification under Section 6 of the Act, 1894 for village Mandwara. He prepared such proposal in terms of and in consequence of the notification already published under Section 4 of the Act, 1894, which was forwarded to the Tehsildar Thikri, District Badwani by the SDO (PWD) NVDA Sub-Division No.8 vide letter dated 30/11/2002. Based on this proposal, notification under Section 6 was published. Thereafter, He did valuation of the properties included in the notification and submitted it to the LAO to onward dispatch to the Collector with its recommendation.

8. Petitioner Ajay Rishi (CRR 765/17) has stated that charge against him is that he changed the water level but the same was determined by the Central Committee of the Government of India and he was not having any authority to change it nor has he changed it. He was only posted as Executive Engineer of Division No.3 at the fake end of the work only to wind up the unit/division. Faction of the work assigned to him was pertaining to Section 9 of the Act, 1894 to do valuation of the property of village Mandwara coming under submergence and to forward it to the persons authorized to finalize the same and he discharged his duty diligently and bona-fidely.

9. Petitioner Baburao Lokhande (CRR 765/17) has stated that he was assigned the work of valuation of the properties of village Chinchli and he also discharged his duty diligently and bona-fidely.

10. Petitioner Pramil Kumar Yadav (CRR No.919/2017) has stated that he had given additional charge of Executive Engineer of Rehabilitation Division No.3 of NVDA from 27.06.2002 to 28.08.2002 and had handed it over to his successor on 28.08.2002. Charge against him is that he along with his team conducted an erroneous survey in respect to back water level of the houses to ascertain as to whether those houses are expecte

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d submergence and it is alleged that due to said survey, the alleged loss was caused. It is stated that he handed over the said additional charge on 28.08.2002 while notifications under section 4 and 6 were published on 13.09.2002 and 18.12.2002 when he was not In-charge of said Division no.3. He has challenged the prosecution sanction mainly on two ground namely incompetency of sanctioning authority and non application of mind. For the sake of convenience the both the grounds are being reproduced here :-

"A Incompetency-

i. That the observance of the Business Allocation Rules is mandatory and not directory as held by Hon'ble Supreme Court in Delhi International Airport Ltd. Vs. International lease Finance Corporation and others (decided on 17.03.2015.).

ii. That by virtue of provisions of the Business Allocation Rules, the Law Department had been exercising the power of granting sanction under section 19 of the P.C. Act and this power was divested by amending the Business Allocation Rules on 06.10.2015, meaning thereby that the Law Department had the power to grant sanction till 06.10.2015.

iii. That the Government of MP without amending the Business Allocation Rules, issued a circular/executive order dated 05.09.2014 and purportedly delegated the power of sanction to the concerned Administrative Department i.e. Water Resources Department in the case of applicant. It is submitted that the aforesaid circular is void ab-initio and non-est in law so far as it sought to entrust the power of sanction to the Administrative Department as it was issued in complete derogation and contradiction of the Business Allocation Rules. If the government wanted to delegate the power of sanction to Administrative Department, it should have amended the Business Allocation Rules, which was actually done on 06.10.2015. This power could not be delegated by issuing a circular/executive order as was done on 05.09.2014 without amending the Rules.

iv. That on 27.10.2014, when the sanction order was issued, two provisions existed firstly; executive order dated 05.09.2014 empowering the administrative department to grant sanction and secondly; the provision of business allocation rules empowering the Law Department to grant sanction.

v. That the government of MP after issuing the defective circular dated 05.09.2014 sought to amend the Business Allocation Rules, only on 06.10.2015 to bring the circular in consonance with the Rules. It is submitted that the period from 05.09.2014 to 06.10.2015 (referred to as the intervening period) between the issuance of the circular and amendment of the rules would be governed by the Rules as the circular was void ab-inito as the provision of the Rules cannot be amended by issuing the executive instruction. Thus the Administrative Department did not have power to grant sanction in the intervening period and the impugned sanction order dated 27.10.2014 has obviously been issued by the incompetent authority i.e. Administrative Department and is thus not a valid sanction on account of incompetency.

vi. That, alternatively, if at any point of time if executive order and Rules co-exist on the issue, the provisions of Rules shall prevail over the provision of the Executive Order.

vii. That moreover the executive order dated 05.09.2014 does not bear the caption "In the name of and by the order of Governor" and therefore, not the order of State Government as it does not comply the provision of Rule 6 of the Business Allocation Rules which makes it mandatory that all the orders of the State Government are to be mandatorily issued in the name of Governor and also the provision of Article 166(1) of the Constitution.

viii. That the question regarding validity of sanction can be raised at any stage of proceedings and if the Trial Court proceeds despite the invalidity attached to the sanction order, the same shall be deemed to be non-est in the eyes of law.

ix. That the Trial Court failed to appreciate that the sanction order was issued by the incompetent authority and thus it was an invalid sanction.

x. That from the aforesaid facts and legal positions it is prima facie established that the sanction order dated 27.10.2014 passed by the Administrative Department was without authority and void ab-initio and non-est in law and the trial Court should have discharged the accused as held by the Hon'ble Supreme Court in Nanjappa Vs. State of Karnataka (decided on 24.07.2015).

B. Non-application of mind- The trial Court has also failed to appreciate that the Administrative Department did not peruse the entire case which was based on the written evidences and oral evidences has no bearing in the present case. The details follows:-

i. That, it is pertinent to mention that for acquiring land for government use, a notification is first issued under section 4 of the Land Acquisition Act, 1994 specifying the land to be acquired for any project of public importance. Thereafter in the said area, survey is made as to the house situated in the said land and thereafter a notification is issued under section 6 of the Act specifying the names of the house owners situated in the said land. Thereafter, inviting objections and suggestions in the notification issued under section 6, the list is finalized after adjudicating the objections received and thereafter the list is sent to the Land Acquisition Officer for disbursing the compensation to the house owners so finalized and situated in the said land.

ii. That from the perusal of letter dated 30.08.2002 (Annexure-9) sending the proposal for issuing the notification under section 4 of the Act, it is clear that it has not been signed by the applicant. Similarly, the letter dated 06.09.2002 (Annexure-10) sending the proposal for inviting the objections from the house owners situated in the said land, also does not bear the signature of the applicant. Both of these letters have been annexed with the charge sheet by the prosecution itself.

iii. That on the basis of letter dated 18.09.2007 (Annexure-11) which depicts the incumbency of the officers from 28.08.2002 to 30.04.2003, the prosecution has made all of them the accused in the case. The prosecution must have investigated and examined the role of each officer posted during the period who was instrumental in sending the proposal under section 4 and 6 of the Act.

iv. The sanctioning authority has not even ventured to see that the applicant was only posted for a period of 01 months and 20 days and had neither sent the proposal for notification under section 4 or neither sent the proposal for notification under section 6 of the Act and thus he was in no way related with the case.

v. That, the note sheet (Annexure-12) regarding sanction as obtained under RTI Act, clearly reveals the above facts that the applicant was in no way related to the issuance of notifications under section 4 and 6 and this has not even been seen which was the genesis of the case.

vi. That, from the foregoing paras, it is crystal clear that the sanctioning authority has not applied its mind while granting the sanction and it has just reiterated that facts as mentioned in the prosecution story. Thus, the grant of sanction being mechanical and without application of mind is invalid sanction in the eyes of law and the Hon'ble court cannot proceed on the basis of this invalid sanction. The trial Court has failed to appreciate that the sanctioning authority has not applied its mind rendering the sanction order as invalid. "

11. Petitioners Ashok Kumar Gupta (CRR No.974/2017) and Jai Narayan Taur (CRR No.1201/2017) were posted as Sub-Divisional Officers at Division no.3 on 07.10.2002 and 06.11.2002 and by that time the list of villagers, records, field map, measurements and water levels etc were already prepared and forwarded by the Tehsildar Thikri much prior to their posting, therefore, they cannot be held responsible for inclusion of 14 houses into submergence due to incorrect measurement of back water level, preparation of calculation sheet for determination and distribution of the compensation amount as proceedings for the same had already been done before their posting. No objections were received against notification under section 4 of the Act, 1894, therefore, proceedings under section 6 of the Act, 1894 were initiated and the notification was published. Thereafter, notice under section 9 of the Act, 1894 was issued on 17.01.2003 and on 28.01.2003 final award was passed in respect to village Mandwara Tehsil and District Badwani.

12. There were two reports of measurement of back water level, which clearly shows that a mistake was committed in measurement of back water level and hut measurement and the petitioners were not responsible for the said mistake. The allegation against them is that they in collusion with other co-accused persons have taken wrong back water level while they have not taken the same. The petitioners were not expert to take such measurement, therefore, they cannot be held liable for wrong measurement of back water level. Validity of sanction is also challenged by them.

13. We have heard the learned counsels for the parties at length and have gone through the records.

14. The question as to what would be the standards to examine the material produced by the prosecution at the time of framing of charge was considered by the Hon'ble Supreme Court in State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338 : 2000 SCC (Cri) 1110 at page 342. The Court answered the same in the following terms:

7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.

8. In Ananda Bezbaruah v. Union of India [1994 Cri LJ 12 (Gau)] the Gauhati High Court was of the view that where the CRR Nos.752/2017, 765/2017, 919/2017, 974/2017, 1201/2017 and 3093/2017accused was charged with the offence of having resources and property disproportionate to his income and the trial court failed to consider and evaluate the income tax return which clearly established that the property included in the assets of the accused and shown to be disproportionate is the wife's property bought from her own resources and should have been excluded from the assets of the accused.

9. Yet in another decision of this Court in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [(1990) 4 SCC 76 : 1991 SCC (Cri) 47] it is held that at the time of framing charges having regard to Sections 227 and 228 CrPC, the court is required to evaluate the material and documents on record with a view of finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose to sift the evidence, as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or broad probabilities of the case.

10. Further in Satish Mehra case [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104 : (1996) 3 Crimes 85 (SC)] this Court has stated that the Sessions Judge was not expected to hold a roving inquiry into the pros and cons of the case at the stage of framing charges by weighing the evidence as if he was conducting the trial.

11. Decision in the case of State of M.P. v. S.B. Johari [(2000) 2 SCC 57 : 2000 SCC (Cri) 311 : (2000) 1 Scale 138] strongly relied on by the learned counsel for the petitioner, in our view does not advance or support the case of the petitioner. That was a case where FIR was lodged at the police station, Bhopal to the effect that there was criminal conspiracy in purchase of medicines by the hospital authorities concerned including the Dean, Superintendent, Medical Officer-In-Charge and others. It was alleged that aforesaid accused entered into criminal conspiracy with some local businessmen of Indore by misusing their posts and also by using some forged documents caused wrongful loss to the Government. It was stated that though many of the items had not been purchased, amount was paid on bogus vouchers. After considering the material on record, learned Sessions Judge framed the charges against the accused for the offence punishable under Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1948 read with Section 120-B IPC and in the alternative for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The High Court in revision quashed the charges accepting the contentions raised by the accused after detailed consideration of material produced on record. Having regard to the facts and circumstances of the case and referring to earlier decisions of this Court in para 4 it is held thus: (SCC pp. 60-61) "4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross- examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan SinghKaram Singh Punjabi v. Jitendra Bhimraj Bijjaya [(1990) 4 SCC 76 : 1991 SCC (Cri) 47] after considering the provisions of Sections 227 and 228 CrPC, the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533] , Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609] and Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274 : 1979 SCC (Cri) 1038] and held thus: (SCC p. 85, para 7) 'From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.' "

As is evident from the paragraph extracted above if the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence then the charge can be quashed.

15. Keeping in view the aforesaid norms, we examined the material available on record and find that FTL (full tank level) of Sardar Sarover Dam was 138.68 meters. The Central Water Commission had taken 'Back Water Level' of the villages coming under submergence of the back water of the dam. According to the report; back water level of village Mandwara was 145.09 and of village Chichli was 145.95 meters. As per this water level, all the land, houses and properties coming under submergence were acquired by the government and compensation was awarded to the owners. The offence came into the light when in the year 2006-07, at the time of flood in the river Nahla Kundli minimum hut level of these houses was taken. Their level was found more than back water level of the dam. It was revealed that those houses were not coming in the submergence area of the dam, the petitioners had falsely shown them falling in such area and their acquisition was wrong. It was found in the investigation that all the petitioners were involved in the procedure of acquisition of these houses at one stage or the other. They prepared false documents, field books, maps, measurement books, submitted reports to show that these houses are also coming in submergence area of the dam and facilitated payment of compensation to the persons not entitled for the same. Claim of the prosecution is based on several documents seized during investigation and affidavit of Magan Singh Ajnare, Chief Engineer, PWD, NVDA, Bhopal dated 20/03/2018 and affidavits of Ashutosh Mishra, Dy.S.P., EOW, Indore dated 13/09/2017, 06/12/2017 & 20/03/2018 regarding period of posting of the petitioners at the relevant time and also regarding submission of the documents showing their involvement. In our considered opinion, prima facie all this evidence is sufficient to frame the charges against the petitioners and the impugned order does not warrant interference by this court.

16. Learned counsel for the petitioner Ashok has placed reliance on State of Karnataka Vs. L.Muniswamy and Others (1977) 2 SCC 699, Gorige Pentaiah Vs. State of Andhra Pradesh and another (2008) 12 SCC 531, P.Vihayan Vs. State of Kerala and Another (2010) 2 SCC 398, Satish Mehra Vs. State (NCT of Delhi ) and another (2012) 3 SCC 614 learned counsel for the petitioner Ajay has placed reliance on Union of India Vs. Prafulla Kumar Samal LAWS (SC) 1978 11 25, State of Orissa VS. Devendra Nath Padhi (2005) 1 568, State of Rajasthan Vs. Fateh Karan Mehdu reported in MANU/SC/0111/2017, State VS. A.Arun Kumar reported in MANU/SC/1174/2014, Mauvin Godinho and others Vs. State of Goa reported in MANU/SC/0071/2018 and State of MP Vs S.B. Johri reported in MANU/SC/0025/2000. In all these judgments, Hon'ble the Supreme Court has discussed the parameters and standards of appreciation of evidence and what is to be considered and up to what extent it is to be considered while examining the matter to find out as to whether any prima facie case is made out or not for the purpose of framing of charges or for quashing the criminal proceedings and the same we have already discussed above while considering the Mohanlal case (supra), therefore, we do not find it necessary to discuss all these judgements again in detail. We have carefully gone through the judgments and followed the principles articulated in these judgments.

17. A three judge bench of the Hon'ble Supreme Court has considered the issue as to whether criminal trial of a public servant can be continued even when for the same charges he is exonerated in the departmental enquiry? The answer was given in positive. Relevant paras of State (NCT of Delhi) Vs. Ajay Kumar Tyagi, (2012) 9 SCC 685 reads thus :

19. Even at the cost of repetition, we hasten to add that none of the heads in P.S. Rajya [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] is in relation to the effect of exoneration in the departmental proceedings on criminal prosecution on identical charge. The decision in P.S. Rajya [(1996) 9 SCC 1 : 1996 SCC (Cri) 897], therefore, does not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to be quashed.

20. It is well settled that the decision is an authority for what it actually decides and not what flows from it. The mere fact that in P.S. Rajya [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] , this Court quashed the prosecution when the accused was exonerated in the departmental proceeding would not mean that it was quashed on that ground. This would be evident from para 23 of the judgment, which reads as follows: (SCC p. 9) "23. Even though all these facts including the report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27-3-1996 [P.S. Rajya v. State of Bihar, Criminal Appeal No. 434 of 1996, order dated 27-3-

1996 (SC)] for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs." (emphasis supplied) From the reading of the aforesaid passage of the judgment it is evident that the prosecution was not terminated on the ground of exoneration in the departmental proceeding but, on its peculiar facts.

21. It is worth mentioning that the decision in P.S. Rajya [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] came up for consideration before a two-Judge Bench of this Court earlier, in State v. M. Krishna Mohan[(2007) 14 SCC 667 : (2009) 1 SCC (Cri) 922]. While answering an identical question i.e. whether a person exonerated in the departmental enquiry would be entitled to acquittal in the criminal proceeding on that ground alone, this Court came to the conclusion that exoneration in departmental proceeding ipso facto would not lead to the acquittal of the accused in the criminal trial. This Court observed emphatically that the decision in P.S. Rajya [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] was rendered on peculiar facts obtaining therein. It is apt to reproduce paras 32 and 33 of the said judgment in this connection: (M. Krishna Mohan case [(2007) 14 SCC 667 : (2009) 1 SCC (Cri) 922] , SCC p. 676)"32. Mr Nageswara Rao relied upon a decision of this Court in P.S. Rajya v. State of Bihar [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] . The fact situation obtaining therein was absolutely different. In that case, in the vigilance report, the delinquent officer was shown to be innocent. It was at that juncture, an application for quashing of the proceedings was filed before the High Court under Section 482 of the Code of Criminal Procedure which was allowed relying on State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] holding: (P.S. Rajya case [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] , SCC p. 9, para 23) '23. Even though all these facts including the report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued." (emphasis in original) Ultimately this Court concluded as follows: (M. Krishna Mohan case [(2007) 14 SCC 667 : (2009) 1 SCC (Cri) 922] , SCC p. 676, para 33) "33. The said decision was, therefore, rendered on the facts obtaining therein and cannot be said to be an authority for the proposition that exoneration in departmental proceeding ipso facto would lead to a judgment of acquittal in a criminal trial."

22. This point also fell for consideration before this Court in Supt. of Police (CBI) v. Deepak Chowdhary [(1995) 6 SCC 225 : 1995 SCC (Cri) 1095] , where quashing was sought for on two grounds and one of the grounds urged was that the accused having been exonerated of the charge in the departmental proceeding, the prosecution is fit to be quashed. The said submission did not find favour with this Court and it rejected the same in the following words: (SCC p. 227, para

6) "6. The second ground of departmental exoneration by the disciplinary authority is also 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."

23. The decision of this Court in CBI v. V.K. Bhutiani [(2009) 10 SCC 674 : (2010) 1 SCC (Cri) 407] , also throws light on the question involved. In the said case, the accused against whom the criminal proceeding and the departmental proceeding were going on, was exonerated in the departmental proceeding by the Central Vigilance Commission. The accused challenged his prosecution before the High Court relying on the decision of this Court in P.S. Rajya [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] and the High Court quashed the prosecution. On a challenge by the Central Bureau of Investigation, the decision was reversed and after relying on the decision in M. Krishna Mohan [(2007) 14 SCC 667 : (2009) 1 SCC (Cri) 922] , this Court came to the conclusion that the quashing of the prosecution was illegal and while doing so observed as follows: (V.K. Bhutiani case [(2009) 10 SCC 674 : (2010) 1 SCC (Cri) 407] , SCC p. 678, para 6) "6. ... In our opinion, the reliance of the High Court on the ruling of P.S. Rajya [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] was totally uncalled for as the factual situation in that case was entirely different than the one prevalent here in this case."

24. Therefore, in our opinion, the High Court quashed the prosecution on total misreading of the judgment in P.S. Rajya case [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] . In fact, there are precedents, to which we have referred to above, that 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 a 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 cannot be rejected on the basis of the evidence in the departmental proceeding or the report of the inquiry officer based on those evidence.

18. As far as exoneration of the petitioners by the Inquiry Officer is concerned, in our opinion, the said order does not preclude the prosecution from taking an action if it is otherwise permissible. The law is fairly well settled. Exoneration by the department does not ipso facto bar the criminal court from exercising power in accordance with the law in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. Strict rules of evidence and procedure do not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability".

19. We have carefully gone through the findings recorded by the Inquiry Officer and also the evidence collected in the investigation and produced with the charge-sheet and we are of the view that looking to the availability of prima facie sufficient evidence and on the peculiar facts of this case, the criminal proceedings initiated against the petitioners cannot be quashed on this ground. We are, therefore, unable to uphold the contention of the petitioners that since they are exonerated in the Departmental Enquiry, the impugned order of framing charge deserves to be quashed and set aside.

20. Challenge to validity of the prosecution sanction is made on two grounds; first incompetency of the authority granted sanction; second non application of mind by the authority.

21. So far as the first ground is concerned suffice is to say that validity or constitutionality of any order of circular etc cannot be challenged while exercising revisional jurisdiction and when a sanction is granted by the administrative department following the circular which is not declared invalid, the sanction cannot be considered invalid or without authority. However, we are observing the facts only with the purpose to find out as to whether any prima facie case exists against the petitioner or not.

22. Circular dated 05/09/2014 is issued by the General Administration Department, Government of M.P. in exercise of the powers conferred by the Rules of Business of the Executive Government of Madhya Pradesh framed in exercise of the powers conferred under Art. 166 (2) & (3) of the Constitution of India by the Governor of Madhya Pradesh. Rule 7 & 13 of Part I of these Rules empowers the Government to issue any circular or direction in exigencies. Rule 13 of Part I of these Rules is as under:

Rule-7- Cases shall be brought before the Council in accordance with the law general, directions issued hereunder or by a special direction of-

The Chief MinisterThe Minister-in-charge of the case with the consent of the Chief Minister; or(iii) The Governor under article 167(c):

Provided that no case in regard to which the finance department is required to be consulted under rule 11 shall, save in an emergency under the direction of the Chief Minister, be discussed by the Council of Ministers unless the Finance Minister is ready for its consideration.

Rule-13- These rules may, to such extent as may be necessary be supplemented by instructions to be issued from time to time.

23. Clause xxvi of part II of these Rules, which deals with the instruction issued by the Governor under Rule 7 is also relevant here, which reads thus: :-

PART-II- Directions issued under Rule 7 of the Business Rules in regard to Council cases or cases to be brought before the Council:-

Under Rule-7 of the Business Rules, the Governor of Madhya Pradesh is pleased to issue the following directions to the cases which shall be brought before the Council:-

The following cases shall be brought before the council, subject to the proviso that if the Chief Minister consider any case to be so urgent as to necessitate the immediate issue of orders, he may direct the issue of orders at once, and when the orders have been issued, the papers shall without avoidable delay, be circulated and brought before a meeting of the Council in accordance with the procedure laid down in supplementary instructions 18 under rule 13:-

xxvi- Circulars embodying any important changes in the administrative system to the State.

24. Thus, at this stage, it cannot be said that the Government has issued the circular dated 05/09/2014 without any authority to do so.

25. There is no dispute that in the case of the petitioners, Government of M.P. was the competent authority to grant or refuse prosecution sanction. In the case in hand, it is the state government, who accorded the sanction. It does not make any difference as to which department of the Government has dealt with the matter or has accorded the sanction.

Allocation of work is an administrative action and only meant for the convenience of work or smooth functioning of the executive government. Therefore, the plea of the petitioners is not tenable until and unless the vires of the circular is not decided in their favour.

26. In the present case there is no conflict in the Business Allocation Rules or the executive instruction issued by the State Government. It is settled law that only in case of conflict between both of them, the Rule would prevail. Referring the judgement passed in DDA and others v. Joginder S. Monga and others (2004) 2 SCC 297 Bench comprising Hon'ble Justice Deepak Mishra and Justice Prafulla C. Pant has observed in AIR 2015 SC (Supp) 2093 State of Madhya Pradesh and Ors. v. Anand Mohan and Anr. that:

14. In DDA and others v. Joginder S. Monga and others (2004) 2 SCC 297 : (AIR 2004 SC 3291), discussing the situation of conflict between statutory rule and executive instruction, this Court has clarified as under:

"30. It is not a case where a conflict has arisen between a statute or a statutory rule on the one hand and an executive instruction, on the other. Only in a case where a conflict arises between a statute and an executive instruction, indisputably, the former will prevail over the latter. The lessor under the deed of lease is to fix the market value. It could do it areawise or plotwise. Once it does it areawise which being final and binding, it cannot resile therefrom at a later stage and take a stand that in a particular case it will fix the market value on the basis of the price disclosed in the agreement of sale."

27. As there is no conflict between the Rules or the executive instruction, we have no hesitation to discard the stand taken by the petitioners.

28. In writ petitions WP 18235 and 16793/2015 G.N. Singh Vs. State of M.P. and others decided on 21/06/2017, Division Bench of this Court considered the prosecution sanction accorded under the G.A.D. circular dated 05/09/2014 and holding that there is nothing wrong in the procedure prescribed by this circular, dismissed the petitions.

29. Issue of error in the sanction is also raised before us. This issue is set at rest by the Division Bench of this Court at Principal Seat, Jabalpur in B.S. Waskel Vs. State of M.P. & others (WP Nos. 8043 of 2014, 6917, 6919 & 7302 of 2015) decided on 28/07/2015. The Division Bench has dealt with this question in para 8,10,13 to 19, which are being reproduced here:

8. Shri Rajendra Tiwari, learned Senior Advocate and Shri Amal Pushp Shroti, learned counsel for the petitioners argued that in all these cases prosecution has been sanctioned by the concerned department and not by the law department. It is said that on the basis of certain procedure laid down by the State Government in the Circular issued on 05.09.2014 by the Chief Administrative Department sanction for prosecution is being accorded, this according to petitioners is illegal. In as much as vide notification dated 03.02.1988 by amending the Business Allocation Rule the power to accord sanction was entrusted to the Department of Law and by subsequent circular issued on 09.02.1988 it was contemplated that before according of sanction, the Law Department would obtain the opinion of the Administrative Department concerned, where the government servant was employed. It was further pointed out that vide another circular dated 21.04.1997 a provision was made for referring of matter to the competent authority of Council of Ministers in case of conflict of opinion in the matter of granting sanction by the Administrative Department and the Law Department. Subsequently, this provision for reference to the Sub-Committee was deleted on 10.07.1997 and various other procedures were laid down. For the present, we need not to deal with all these questions for the simple reason that in each case, the case of petitioners is that the sanction is granted by the concerned department based on the procedure contemplated in the circular dated 05.09.2014 which is illegal, this circular has not been authenticated under Article 166 of the Constitution of India and the Rules of Business. Accordingly, the first ground of challenge is that the sanction granted is unsustainable and it is based on the illegal sanction, the prosecution cannot be launched.

10. In support of their contention they invite our attention to recent judgment of the Hon'ble Supreme Court decided on 24.7.2015 in Criminal Appeal No.1867/2012 Nanjappa Vs. State of Karnataka, Criminal Appeal No.1838/2013 CBI Vs. Ashok Kumar Aggarwal decided on 22.11.2013, Gulf Goans Hotels Company Ltd. and Another Vs. Union of India and Others, (2014) 10 SCC 673 and para 21 thereof with regard to validity of the circular and in the case of Jaipur Development Authority and Another Vs. Vijay Kumar Data and Another, (2011) 12 SCC 94 para 53 again with regard to validity of the circular. Accordingly, learned counsel argued that when the sanction granted is not in accordance with law the entire prosecution becomes null and non-est in the eyes of law and such a prosecution should be quashed.

11. Taking us through various observations made by the Hon'ble Supreme Court in the case of Nanjappa (supra) learned counsel says that a sanction which is not in accordance with law is not a sanction at all in the eyes of law, it is void ab initio, it goes to the root of prosecution and, therefore, it being non-est the entire trial becomes illegal. The learned Senior Advocate Shri Rajendra Tiwari and Shri A.P.

Shroti seeks for quashment of the entire prosecution on account of fact that the sanction granted is not proper. .........

14. We have heard learned counsel for the parties at length and we have perused the record. As far as issuance of circular dated 05.09.l2014 and its validity is concerned no prayer is made in the writ petitions to declare that this circular is illegal, unsustainable and therefore liable to be quashed. That being so, we cannot go into the tenability of this circular, without such a specific prayer being made. Therefore, the only question would be as to whether the sanction granted by the State Government or the Department concerned is liable to be quashed at this stage in these proceedings under Article 226of the Constitution.

15. The judgment in the case of Nanjappa and Ashok Kumar Aggarwal (supra) relied upon by the learned counsel for the parties are regular criminal appeals after complete trials have been conducted and persons concerned have been convicted or they may be acquitted and while dealing with those matters in a regular appeal, the question of sanction and procedure followed for sanction have been considered. In the present petitions, the question before us is as to whether we can interfere with the irregular or illegal sanction when the question can very well be considered by the trial court. Section 19 of the Prevention of Corruption Act, 1988 provides for sanction which is necessary for prosecution. sub section (3) of Section 19 and sub clause (b) & (c) thereof contemplates that no Court shall stay a proceeding under the Act on the ground of any error, omission or irregularity in the sanction granted by the authoritiy, unless it is satisfied that such error, omission or irregularity committed has resulted in a failure of justice.

16. Similarly sub-section (4) of Section 19 also contemplates such a provision. This provision have been subjected to interpretation by the Supreme Court in the case of Rajmangal Ram (Supra) and the Hon'ble Supreme Court in the aforesaid case has considered the question of interfering into the question of grant of sanction by a competent authority by the High Court invoking its powers under Section 482 of CrPC which is similar to power available under Article 226 of the Constitution. The Hon'ble Supreme Court in the aforesaid case and after laying down the facts came to the conclusion that the short question of law arising for consideration is as follows :

"Whether a criminal prosecution ought to be interfered with by the High Courts at the instance of an accused who seeks midcourse relief from the criminal charges levelled against him on grounds of defects/omissions or errors in the order granting sanction to prosecute including errors of jurisdiction to grant such sanction ?"

17. The aforesaid question is precisely the question which is before us in all these petitions, the question is as to whether this Court at the instance of the petitioners, who are accused, can interfere into the matter at this stage and as the question involved in these writ petitions are also answered by the Supreme Court after formulating the question, as indicated herinabove, in the case of Rajmangal Ram (supra), we are required to apply the principle as laid down by the Supreme Court in the said case. As indicated hereinabove, the Hon'ble Supreme Court, in para 5 and 6 has elaborated the object behind the grant of sanction to prosecute a public servant, need not detain the court, the rights available to a public servant the requirement of Section 19 of the Prevention of Corruption Act, Section 465 of CrPC and after referring to various judgments has considered the question and the statutory enactment provided for interference in the matter of error, omission or irregularity in sanction, the concept of failure of justice occurring as indicated in statutory provision particularly Section 19(3)(4) and in para 8 has laid down the principle in the following manner :

"8. The above view also found reiteration in Prakash Singh Badal and Another vs. State of Punjab and Others wherein it was, inter alia, held that mere omission, error or irregularity in sanction is not to be considered fatal unless it has resulted in failure of justice. In Prakash Singh Badal (supra) it was further held that Section 19(1) of the PC Act is a matter of procedure and does not go to the root of jurisdiction. On the same line is the decision of this Court in R. Venkatkrishnan vs. Central Bureau of Investigation. In fact, a three Judge Bench in State of Madhya Pradesh vs. Virender Kumar Tripathi while considering an identical issue, namely, the validity of the grant of sanction by the Additional Secretary of the Department of Law and Legislative Affairs of the Government of Madhya Pradesh instead of the authority in the parent department, this Court held that in view of Section 19(3) of the PC Act, interdicting a criminal proceeding mid-course on ground of invalidity of the sanction order will not be appropriate unless the court can also reach the conclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction. It was further held that failure of justice can be established not at the stage of framing of charge but only after the trial has commenced and evidence is led (Para 10 of the Report)."

18. Thereafter in para 9 the Hon'ble Supreme Court refers to a contrary view in the case of State of Goa Vs. Babu Thomas (2005) 8 SCC 130, distinguishes it in the light of the judgment in the case of State of Madhya Pradesh Vs. Virendra Kumar Tripathi (2009) 15 SCC 533 and has quashed the orders passed by the High Court interfering with the sanction, by so observing in para 10 and 11:-

"10. In the instant cases the High Court had interdicted the criminal proceedings on the ground that the Law Department was not the competent authority to accord sanction for the prosecution of the respondents. Even assuming that the Law Department was not competent, it was still necessary for the High Court to reach the conclusion that a failure of justice has been occasioned. Such a finding is conspicuously absent rendering it difficult to sustain the impugned orders of the High Court.

11. The High Court in both the cases had also come to the conclusion that the sanction orders in question were passed mechanically and without consideration of the relevant facts and records. This was treated as an additional ground for interference with the criminal proceedings registered against the respondents. Having perused the relevant part of the orders under challenge we do not think that the High Court was justified in coming to the said findings at the stage when the same were recorded. A more appropriate stage for reaching the said conclusion would have been only after evidence in the cases had been led on the issue in question."

19. Having considered the facts and circumstances of the aforesaid case in the back drop of aforesaid legal principle laid down by the Supreme Court, we are of the considered view that the material available before us is not sufficient enough to indicate that failure of justice has occasioned in the matter and in the absence of the entire evidence we cannot go into all these questions. That apart, when all these questions can be considered by the trial court, and when the question of sanction granted being illegally or irregularity can be challenged before the trial court, interfering into the matter by this Court at this stage is not called for.

30. Some of the petitioners themselves approached this Court by filing Writ Petition Nos. 6847, 6858 and 6860 of 2016 to challenge the prosecution sanction accorded against them on the similar ground. Their petitions were dismissed by Division Bench of this Court observing that:

2. It is also submitted by the learned counsel for the petitioner that the Department, who had granted the sanction, do not have power to grant sanction for prosecution and only the Law and Legislative Affairs Department, which was competent to sanction the same. It is further submitted that on the same charge, the petitioner has been exonerated in the Departmental Enquiry conducted by the respondent No.2 and enquiry report dated 10.10.2011 was passed vide Annexure P/6. There was no fault on behalf of the petitioner. Hence, it is prayed that the impugned order dated 27.10.2014 granting prosecution sanction by the respondent No.1 be quashed.

3. A detailed reply has been filed by the respondent No.1 stating wherein that as per Section 19 (3) & (4) of Prevention of Corruption Act, 1988 as well as the law laid down by the Division Bench of this High Court at Principal Seat Jabalpur in the matter of B.S.Waskel and others vs. State of M.P. and others {W.P. Nos. 8043/2014, 6917,6010 and 7302 of 2015} decided on 28.7.2015, so also the order of Division Bench of this Court in the case of Arvind Geete vs. Law & Legislative Affairs Department {W.P.No.7892/2015} decided on 02.8.2016, the validity of sanction cannot be considered at this stage under Article 226 of the Constitution of India. The petitioner is at liberty to challenge the same in appropriate proceeding at appropriate stage.

4. The facts of the present case and the facts of the case of B.S. Waskel (supra) are similar. Paragraphs Nos. 8, 9, 10, 11, 12, 13, 14, 15, 16 and 19 to 22 are the relevant parts of the order, which are reproduced as under:-

19. Having considered the facts and circumstances of the aforesaid case in the back drop of aforesaid legal principle laid down by the Supreme Court, we are of the considered view that the material available before us is not sufficient enough to indicate that failure of justice has occasioned in the matter and in the absence of the entire evidence we cannot go into all these questions. That apart, when all these questions can be considered by the trial court, and when the question of sanction granted being illegally or irregularity can be challenged before the trial court, interfering into the matter by this Court at this stage is not called for.

20. Apart from challenging the sanction of prosecution granted, in some of the petitions the petitioner B.S. Waskel has also made a prayer that the respondents be restrained from suspending the petitioner due to his involvement in criminal case.

21. In accordance to rule 9 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules in anticipation that the petitioner may be suspended no preventive direction can be issued. That apart, under the statutory rule there is a provision for appeal against order of suspension and, therefore, at this stage when suspension order has not been issued, in anticipation of suspension, interference cannot be made. Accordingly, we find no ground to interfere on such ground.

22. In view of above, for the present, we find no reason to interfere into the matter. All the four petitions are, therefore, dismissed.

5. In view of the aforesaid, so also the law laid down by the Apex Court in the case of State of Madhya Pradesh vs. Pradeep Kumar Gupta reported in (2011) 6 SCC 389 and the law laid down by Division Bench of this Court in the case of B.S. Waskel and others (supra) shall apply mutatis mutandis and therefore, we are of the view that the validity of sanction cannot be considered at this stage. The petitioner is at liberty to challenge the same in appropriate proceeding at appropriate stage.

6. In view of the above, all the three petitions are, therefore, dismissed.

31. In Dinesh Kumar v. Chairman, Airport Authority of India and Anr AIR 2012 Sc 858 the Hon'ble Apex Court held that:

13. In our view, having regard to the facts of the present case, now since cognizance has already been taken against the appellant by the Trial Judge, the High Court cannot be said to have erred in leaving the question of validity of sanction open for consideration by the Trial Court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. Such course is in accord with the decision of this Court in Parkash Singh Badal5 and not unjustified.

32. At the stage of granting sanction meticulous or legalistic examination or analysis of the evidence placed before the authority is not required. When all relevant material/evidence collected by the Investigating Agency is properly placed before the sanctioning authority and the sanction itself is very expressive or itself is eloquent enough, then in that case, the argument that the sanctioning authority has not applied its mind becomes unsustainable. In the present case, from the order granting sanction itself, it is evident that the facts contained in the sanction order read with evidence placed before the sanctioning authority makes it clear that before granting the sanction, the authority has examined the material available on record and has accorded sanction accordingly.

33. Thus, on the question of validity of the sanction on the ground that it has not been issued by the competent authority, we are not impress by the arguments putforth by the learned counsels of the petitioners and so far as its validity on the ground of non application of mind is concern, the plea of the petitioners is not sustainable.

34. In view of the foregoing discussion, we do not see any error, illegality or perversity in the impugned order of framing charge against the petitioners. Therefore, we are not inclined to interfere with the same. In our considered opinion, the petitions are devoid of merits, deserve to be and are dismissed hereby. However, no order as to the cost.
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