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K.K. Shrivastava Vs. Special Police Establishment Lokayukt Gwalior - Court Judgment

LegalCrystal Citation
CourtMadhya Pradesh High Court
Decided On
Case NumberMISC. CR. C. NO. 953, 979, 1096 & 1120 OF 2010
Judge
Reported in2012CrLJ2189
AppellantK.K. Shrivastava
RespondentSpecial Police Establishment Lokayukt Gwalior
Excerpt:
.....was not made and final bills filed by the contractor were forwarded in fraudulent manner by the accused/petitioners for payment to the commissioner municipal corporation, gwalior. it is stated that the petitioners/accused were found guilty of misusing of their powers for illegally profiting the contractor. the payment of the suspicious bills of repairs was deferred because the inquiry of fraudulent transaction was pending before the lokayukt organization. the charge-sheet against the petitioners/accused after grant of permission from the state government are filed before the special court and the court also took the cognizance on the charge-sheet papers. the trial against the accused are in progress. therefore, it is submitted that in the beginning of the trial, quashment of the fir.....
Judgment:

G.D. Saxena, J.

(1) By preferring the aforesaid petitions under Section 482 of Cr.P.C., the petitioners, who are public servants, have approached this Court seeking order(s) setting aside and quashing the First Information Report, which has resulted into registration of Crime No.31/07 for commission of offence punishable under Sections 467, 468, 471,420 and 120-B of I.P.C. read with Section 15 of the Prevention of Corruption Act 1988 against them. Both the petitioners, namely, K.K. Shrivastava and R.N. Karaiya were appointed originally in the Public Health Engineering Department and subsequently were sent on deputation to the Municipal Corpn., on the posts of Assistant Engineers. At the relevant time, they were holding additional charge of Executive Engineers in the Maintenance Div. No.1. Gwalior. The petitioner Ajaya Pandvia at the relevant time was working as Assistant Engineer in Public Health Engineering under Municipal Corporation Gwalior whereas petitioner R.B. Shrivastava was working as In-Charge (Accounts) in the PHE under Municipal Corporation Gwalior.

(2) Brief facts of the case for consideration and decision of these petitions are that complainant Sudhir Singh made a written complaint to Lokayukt Organization, Bhopal about commission of corruption in repairs of tube-wells already  existed in the various areas under Municipal Corporation Gwalior. On the basis of the said complaint, an FIR was lodged and the investigation was conducted. After investigation, it was gathered that there was an attempt made to cause embezzlement of Rs. 9940/- by the accused in conspiracy with others in carrying out the work of tube-wells and hand-pumps of the areas in question. Consequently, the charge-sheet was filed against the petitioners-accused before the Court of Special Judge (Prevention of Corruption), Gwalior for commission of the alleged offences. Hence, these petitions for quashment of the same.

(3) The grounds for assailing the FIR and the subsequent investigation are that on 24th July 2003, the quotations were invited for maintenance of tube-wells in various places in Municipal areas. On invitation, the tenders/quotations for repairs of tube-wells and placement of hand-pumps in place of unrepairable tube wells, were received by the office of Public Health Engineering Section No. 1 working under the  Municipal Corporation, Gwalior. By adopting the prescribed procedure in the department, the tender of lowest amount was accepted and work order was issued to the contractor of lowest rate on 30th December 2003. The tendered work for repairs of tube-wells and placement of hand-pumps on various places were carried out by the contractor under the supervision of Sub Engineers. After completion of the tendered work, the final bills were submitted by the contractor. By passing through the various audit and Accounts Officers, bill were sent by the Executive Engineers to the Commissioner, Municipal Corporation Gwalior M.P. No payments of bills was made to the contractor by the Municipal Corporation Gwalior. As per law, the payment was to be made by the Municipal Corporation through Commissioner. It is further stated that the allegations made against the petitioners regarding violation of the provisions contemplated in Clauses 4.017 and 4.18 of the Act are absolutely false. On the basis of the aforesaid, it is prayed that by allowing the petitions, the FIR lodged by the Police Establishment Bhopal vis-a-vis the investigation and the charge-sheet filed before the trial Special Judge be quashed. In support of his submissions, learned counsel placed reliance on the decisions in the cases of Goli @ Shada Devi Vs. State of MP 2009 (2) MPLJ (Cri) 116), Manoj Mahavir Prasad Khaitan Vs. Ram Gopal Poddar @ others 2010(10) SCC 673, State of A.P. Vs. Bajdoori Kanthaiah and others 2009 (1) SCC 114, State of Maharastra Vs Ishwar Piraji Kalpatri and others (AIR 1996 SC 722), State of M.P. Vs. Awadh Kishore Gupta and others 2004 (1) SCC 691, Central Bureau of 5 Misc.Cr.C.No.953,979,1096 and 1120/10 Investigation Vs K.M. Sharan 200b (4) SCC 471, State of Andra Pradesh Vs. Aravapally Venkanna and others 2009 (13) SCC 443.MS and Pepsi Food Ltd. Vs. State 1998 AIR SC 128.

(4) Controverting the above submissions made on behalf of the petitioners, Shri J.D.Suryavanshi, learned Special Public Prosecutor, submitted that at this stage, the First Information Report should not be quashed, for enough suspicion exists that the petitioners may be involved in the commission of offences alleged against them. The reply, on behalf of the respondent/Police Special Establishment Bhopal is that the petitioners having made connivance with some of the contractors made arrangements of limited sealed tenders and out of them only one tender was passed for the amount and 1805 forged bills of minor work for repairing of tube-wells situated in various places within the limit of Municipal Corporation Gwalior were prepared. It is stated that the total work of repairs was approximately two crores. The tenders of minor work were accepted without basis of present rate of labor and repairing material. The cost of minor repair work was not prepared. Moreover, after completion of work, the inspection by engineering staff was not made and final bills filed by the contractor were forwarded in fraudulent manner by the accused/petitioners for payment to the Commissioner Municipal Corporation, Gwalior. It is stated that the petitioners/accused were found guilty of misusing of their powers for illegally profiting the contractor. The payment of the suspicious bills of repairs was deferred because the inquiry of fraudulent transaction was pending before the Lokayukt Organization. The charge-sheet against the petitioners/accused after grant of permission from the State Government are filed before the Special Court and the Court also took the cognizance on the charge-sheet papers. The trial against the accused are in progress. Therefore, it is submitted that in the beginning of the trial, quashment of the FIR and all other proceedings initiated pursuant thereto would not be justifiable. It is therefore prayed that the above petitions be dismissed. In support of his contentions, learned counsel placed reliance on the decisions rendered in the cases of Dr. Rajesh Rajora Vs. State of MP 2011 (3) MPHT 44, State of Andhra Pradesh Vs. Bajoori Kanthaiah and Another (2009) 4 SCC 114, State of Maharashtra Vs. Ishwar Piraji Kalpatri and others (AIR 1996 SC 722), State of M.P. Vs.  Awadhkishore Gupta and Others (2004) 1 SCC 691, CBI Vs. K.M. Sharan (2008) 4 SCC 471, State of  AP Vs. Arvappally Venkanna and Another (2009) 13 SCC 443.

(5) Heard the learned counsel appearing on behalf of the petitioners and the learned Special Public Prosecutor appearing on behalf of the Police Special Establishment Lokayukt, Bhopal at length. Perused the copy of the FIR and the charge-sheet alongwith the documents filed before the Court of Special Judge (Prevention of Corruption) Gwalior (M.P.) alongwith the law applicable to the case at hand.

(6) The basic question which these petitions have raised is whether the High Court, in exercise of its powers under Section 482 of Cr.P.C. should set aside and quash the First Information Report (FIR) as well as the investigation, which commences pursuant to the FIR, at the stage of trial ?.

(7) Before entering into the merit of the present case, it is apposite to note that it has been the consistent view of law that when allegations made in the FIR, even if they are taken at their face value and accepted in their entirety as true, do not constitute any offence or make out a case against an accused, the Court must not allow investigation by police into such FIR to continue.

(8) In the case of State of Maharashtra v. Arun Gulab Gawali (2010 AIR SCW 6462) the Apex Court held:-

"The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can 'softpedal the course of justice' at a crucial stage of investigation/ proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section  482 of the Code of Criminal Procedure, 1973 (hereinafter called as 'Cr.P.C.') are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers. The State is the prosecutor and all prosecution is the social and legal responsibility of the State. An offence committed is a crime against a society and not against a victim alone. The victim under undue pressure or influence of the accused or under any threat or compulsion may resile back but that would not absolve the State from bringing the accused to book, who has committed an offence and has violated the law of the land.”

(9) In the case of R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the Apex Court laid down the following principles :

“(i) where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;

(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;

(iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and

(iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.”

(10) In the case of Zandu Pharmaceutical Works Ltd. v. Md. Sharaful Haque (AIR 2005 SC 9) it is held :-

"Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a  court of appeal or revision. Inherent urisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”

(11) In the case of State of Haryana v. Bhajan Lal (1992 Supp (1) 335) the Hon. Supreme Court further held:-

"A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not  constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

(12) In the case of Iridium India Telecom Ltd. v. Motorola Incorporated (AIR 2011 SC 20) it is held:-

"This Court has repeatedly held that power to quash proceedings at the initial stage have to be exercised sparingly with circumspection and in the rarest of the rare cases. The power is to be exercised ex debito justitiae. Such power can be exercised where a criminal proceeding is manifestly attended with mala fide and have been instituted maliciously with ulterior motive. This inherent power ought not to be exercised to stifle a legitimate prosecution.

In such circumstances, in our opinion, the High Court ought to have refrained from indulging in detailed analysis of very complicated commercial documents and reaching any definite conclusions. In our opinion, the High Court clearly exceeded its jurisdiction in quashing the criminal proceeding in the peculiar facts and circumstances of this case. The High Court noticed that while exercising jurisdiction under Section 482 Cr.P.C. "the complaint in its entirety will have to be examined on the basis of the allegations made therein. But the High Court has no authority or jurisdiction to go into the matter or examine its correctness. The allegations in the complaint will have to be accepted on the face of it and the truth or falsity cannot be entered into by the Court at this stage." Having said so, the High Court proceeded to do exactly the opposite.”

(13) The position which emerges from the decisions which are discussed above is that the condition precedent to the commencement of investigation under Section 157 of the Code is that the FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of enquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the FIR, prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must do on. On the other hand, if the FIR does not disclose the commission of a cognizable offences, the Court would be justified in quashing the investigation on the basis of the information laid or received. Simultaneously, the court must be careful to see that its decision in exercise of power under Section 482 of Cr.P.C. is based on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material.

(14) Coupled with the above, it is also imperative to note that an offence, generally, passes, through four different stages, namely, motive, preparation, attempt and commission. It is noteworthy that preparation for forgery is not an offence under the provisions of the I.P.C. Ordinarily, once the act enters into the arena of attempt, criminal liability commences, because attempt takes the offender very close to a stage, where the offence would have stood successfully completed out for some intervening factor, which did not permit the offence to get completed, in other words, but for the intervening factor, the offence would have been successfully completed. That is why, attempt to commit an offence is punishable in law just like the completed offence. There is subtle but definite distinction between preparation and attempt to commit an offence. Preparation consists in devising or arranging means necessary for the commission of an offence, while an attempt is the direct movement towards the commission after the preparation is complete or made. The law punishes a man not for guilty intention, but for the overt act done. If, but for the interruption, offence would have been complete, the act amounts to attempt. The Apex Court has held in the case of Kashavanand Mishra v. State of Bihar (AIR 1961 SC 1698), that a person commits the offence of attempting to commit a particular offence, when he intends to commit the particular offence, and, having made preparations and with the intention to commit that offence, does an act towards its commission and that such an act need not be penultimate act towards the commission of that offence, but must be an act during the course of committing such offence. Preparation for offence is not, punishable, because a preparation, apart from its motive, would, generally, be a harmless act. This apart, it would be impossible in most cases, to show that the preparation was directed to, or aimed at, a wrongful end or was done with an evil motive intent. (15) Keeping the law in view on the subject of quashing of FIR, let us now revert to the factual matrix of the present case.

(16) It appears from the charge-sheet filed before the Special Court that at the relevant time petitioners R.N. Karaia and K.K. Shrivastava were posted as Executive Engineers on deputation from State Public Health Engineering Department to Municipal Corporation, Gwalior as In-charge Executive Engineer Water Supply Maintenance Section No. 1 Gwalior and were authorised for inviting tenders/quotations for all type of maintenance of water supply in Gwalior Municipal area and to sanction the amount up to limit of Rs. Two Lacs per month including all the repairs passed by MCC and Municipal Mayor fund by the Commissioner Municipal Corporation Gwalior M.P. Petitioner Ajay Pandvia was posted as Assistant Engineer in State Public Health Department and was on deputation in Municipal Corporation for maintaining the water supply section No. 1. He was working under supervision and control of In-charge Executive Engineer posted on deputation in the Municipal Corporation Gwalior. Petitioner R.B. Shrivastava was posted as Assistant Treasury Officer in State Treasury Directorate M.P. and was working on deputation in Municipal Corporation Gwalior in Water Supply Maintenance Section under the control of In-charge Executive Engineer Water Supply Maintenance Division Gwalior. All petitioners/accused being on deputation in Municipal Corporation Gwalior from their parent department were under general control of Municipal Commissioner Gwalior and final sanctioning authority of all financial bills was the Commissioner Municipal Corporation Gwalior. True it is, during the relevant period, there was scarcity of water and due to insufficient rainfall in season many tube-wells were dried. On complaint of failure of tube-wells working in the vicinity of the Municipal Corporation Gwalior and for maintaining the regular water supply, necessity of checking the failure tube-wells arrived. It was further suggested that on increasing the water level, fresh hand-pumps be installed. For the present, the repairing and checking of the failure tube-wells were proposed. In this regard the short term sealed quotations for carrying out work in the particular area were invited. Without following the recognized procedure adopted in the Municipal Corporation and the Public Health Engineering Department, the short term sealed quotations for maintenance of tube-wells were invited and sanctioned without obtaining the technical spot inspection report and without verifying the prevailing market rates of the work, the quotation were sanctioned and on completion of tendered maintenance work, the final bills of contractor were finalized and for final sanction and payment they were forwarded to the Municipal Commissioner Gwalior. Complaint in regard to the financial irregularities committed in maintenance of tubewell was sent to Lokayukt. After Dehati Nalish was lodged by the Police Special Establishment M.P., the preliminary inquiry was conducted and thereafter the FIR was lodged. After investigation, the charge-sheet was submitted to the criminal court. It is also true that due to pendency of inquiry and investigation, the final payment of those bills is pending.

(17) From what have been discussed above, it, is abundantly clear that the First Information Report, which is under challenge, if read carefully and taken to be true in its entirety, we find that the same discloses commission of cognizable offence by the petitioners and hence, in such a situation, the police could not be held to have illegally exercised the powers under Section 157 of Cr.P.C. and register the case against the petitioners as has been done and/or commenced investigation into the same.

(18) The next submission of the learned counsel for the petitioners is that the petitioners being public servants, in the light of provisions of Section 197 of Cr.P.C., as well as Section 19 of the P.C. Act, prior permission to prosecute them was mandatory but no such permission was obtained from the appropriate authority and therefore unless sanction is obtained the court cannot take cognizance of such an offence.

(19) It is true that so far as public servants are concerned the cognizance of any offence by any court is barred by Section 197 of the Code but the said question can not be decided at this stage. The question of validity of sanction, absence of sanction, omission or irregularity can be decided at the time of final decision in the case and it is not a proper stage for determination of the same. In this respect it would be useful to refer the decision of the Apex Court in the case of Prakash Singh Badal and Another Vs. State of Punjab and others (2007)1 SCC 1 wherein it has been held that the question as to absence can be agitated at the threshold of the trial while regarding vitiation has to be raised during trial.

(20) Hence, on careful reading of the the FIR and all documents filed by the investigation agency and further considering the legal aspect of the present case, as discussed  above, we are of the view that the ingredients of offence punishable under Section 15 of the Prevention of Corruption Act are made out. At this stage, individual role of each accused can/should not be considered. Of course the petitioners/accused shall have a legal right to defend and prove their innocence by cogent evidence at proper stage of trial before the trial court.

(21) Consequently finding no merits in the petitions, same are dismissed.


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