Atul Kumar vs State of M.P.

T.S. Doabia, J.

This order shall dispose of Criminal Revision No. 219 of 1994, also as in both these petitions same legal issue has been raised. The facts have, however, been taken from criminal Revision No. 14 of 1995.

Proceedings have been initiated u/s. 39 of the Madhya Pradesh Vinirdhistha Barashta Acharan Niwaran Adhiniyam, 1982. (hereinafter referred to as the Adhiniyam). The initiation of these proceedings was challenged in the Court below. It was contended that there is non-compliance of section 39 of the Adhiniyam. It was specifically urged that cognizance of this case could not taken because there was no direction given by the State Government of the officer authorised by a notification under the section. It be seen that section 39 was amended in 1984. It would, therefore, apt to notice the amended as well as un-amended provisions. These read as under:

Un-amended Amended

Cognizance of Offences - 39. All offence under this Act shall be cognizable. Section: 39. Cognizance of Offences - All offences under this Act shall be cognizable.

Provided firstly that no court shall take cognizance of and no Police Officer shall register a case, inquire into or investigate an offence under this Act against any person unless directed by the State Government or such officer or authority, as it may by notification, specify. (Provided that the Police Officer shall not investigate an offence under the Act except on a direction of the prescribed authority not below the rank of the Commissioner of Division on a report submitting by him to such authority)

Provided secondly that if on receiving an information of the commission of an offence under this Act an officer specified under this section apprehends that delay may result in disappearance of material price of evidence, he may forthwith direct a Executive Magistrate sub-ordinate to him to proceed to collect the evidence of ensure against disappearance of the facts relating thereto and facts shall forthwith be reported by such Executive Magistrate to the committing Magistrate having Jurisdiction and also to the officer specified under this section. Provided further that the State Government may, at any time for the purpose of satisfying itself as to the propriety of any order passed by the Commissioner of the Division as prescribed authority either on its own motion or on reference made by the prescribed authority, shall call for and examine the record of any case pending before or disposed of by such authority and may pass such order in reference there to as it thinks fit)

Provided thirdly that no direction shall be issued under this section against a member of the judicial service of the State save with the prior concurrence of the High Court.

Provided fourthly that if the court while discharging or acquitting the accused finds that any officer while giving directions under this section or while granting sanction u/s 197 of the Code of Criminal Procedure, 1973 (No. 2 of 1974), acted malicolously without just cause or excuse, he shall be prosecuted according to law for an offence punishable u/s 182 or 211 or the Indian Penal Code, as the ease may be.

A perusal of the above provisions indicates that there is material difference between the amended and the un-amended section. Under the unlamented statute a Court was not supposed to take cognizance unless and untill it was so directed by the State Government, amended provision have since been interpreted by this Court in State of M.P. v. Harishankar Goel and others. 1984. JLJ 324. It was observed.

However, it was after the case was committed to the Court of Section, that the prosecution, by an application dated 4.4.83, sought to file the endorsement date 6.10. 82 of the Commissioner Gwalior meant for the Collector, in connection with the prosecution of the respondents. This is rather suspicious, since no such correspondence was filed earlier before the committing court. Assuming the bona fide existence of such correspondence, even that would be ineffective in validating the prosecution of the respondents under the Ordinance, since the notification dated 24.9.82 would still require action, and there was no such report in writing of the Commissioner to the Police for the purpose of prosecution, and there was no such report in writing of the Commissioner addressed to the Police.

The above view expressed by this Court was followed in the later decision In Mohd. Umar v. State of M.P. and others i.e. 1989 (1) MPWN. 41. There can be no dispute with the proposition laid down in the abovementioned two cases. But as noticed above, there is an amendment and the case has to be examined now as per the amended law.

Under the amended law, all that has been prescribed is that the police officer shall not go ahead with the investigation unless and until there is a direction given in this regard by the competent authority. So far as this case is concerned, the matter was referred by the Collector, to the Commissioner of the Division. The Commissioner of the Division took notice of the fact that, that a piece of land situated in survey Nos. 933 and 934 has been sold by Shri Atul Kumar s/o Shri Bishambhar Dayal in contravention of the statutory provisions. It was accordingly directed that that investigation be taken in hand. This letter is dated 8th of April, 1992, The direction is specific It is in pursuance of this direction, proceedings have been taken against the petitioner in criminal revision no. 14 of 1992, that is, Atul Kumar A further direction was given to take action against all other defaulting persons action be also taken. Specific mention has been made to section 39 of the Adhiniyam. Merely because action has been taken on a reference made by the Collector, to the Commissioner and merely because the Commissioner ordered investigation, would not give rise to a conclusion that the Commissioner of the division did not apply his mind. As such I am of the view that the decisions on which reliance has been placed by the learned counsel for the petitioner are not applicable. These decisions have been given under the un-amended law. Under the provisions as it exist now, there is no bar to the taking of cognizance. The bar is only in the matter of initiating investigations. So far as this procedural formality is concerned, that has been duly complied with.

Faced with this situation, the learned counsel appearing for the petitioner submits that he be permitted to withdraw the petition with liberty to challenge the order of Commissioner before the State Government. According to him under Second proviso to section 39, the State Government can take suo motu action with view to examine as to whether the direction given by the Commissioner of the Division is in accordance with law or not. So far as this aspect of the matter is concerned, the petitioner can if so advised, approach the State Government. Whenever such an application is made, that be considered by the State Government and decided in accordance with law. It is made clear that suo motu jurisdiction would include exercise of power when something is brought to the notice of the Government by a third party also. In this regard, reference may be made to a decision given by this Court in Arajpatrit Shashkiya Karmachari Grih Nirman Sanstha, Gwalior Vs. Subhash Yadav and Others, . Para 10, 11, 12 and 13 are relevant and be noticed : There is no 7 dispute that when some illegality is brought to the notice of the State Government by a third person and action is taken then even that action would be an action taken in exercise of suo motu jurisdiction. Such was the view expressed by Punjab and Haryana High Court in Jaswant Singh vs. State of Punjab, I LR (1986) (P&H) 314. What was being interpreted was section 69 of the Punjab Co-operative Societies Act, 1961. This section confers suo motu powers on the State Govt. It was observed that there is no difference in the exercise of the powers when action is taken by the State Govt, itsalf or when the action is taken when a third person brings some illegality to the notice of the State Govt. At page 318 it was observed :

I hence fail to see how the position would become diametrically different if the matter is brought to the notice of the revisional authority (which is clothed with wide powers) by one of the parades to the dispute. The State Government is not a natural person and has no personal knowledge of its own and matters are thus brought to its notice either directly or by its employees or by others and no fatality can attach to an order on the hyper technical ground that if the State Government had acted suo motu its action would have been unassailable but merely because the action is taken on proceedings brought to its notice by another the self- same action would become totally vitiated.

In this regard, reference be made to the decision given by the Supreme Court in the case of Everest Apartments Co-operative Housing Society Ltd. Vs. State of Maharashtra and Others, . Where the scope of section 154 of the Maharashtra Co-operative Societies Act, 1960 was under consideration. The Supreme Court was of the view that the State could exercise suo motu jurisdiction even where the Government was moved by a person not a party to the dispute. Relevant observations made by the Supreme Court be noticed again:

....It is, of course, true that the words'' on an application of a party'' which occur in section 150 of the Act and in similar enactments in other Acts, are also not be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action unless it thinks fit. The party who moves Government cannot claim that he has a right of appeal or revision. On the other hand, Government should welcome such applications because they draw the attention of Government to cases in some of which of Government may be interested to intervene. In many statutes, as for example the two major procedural Codes, such language'' has not only inhibited the making of applications to the High Court, but has been considered to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond bringing a matter to the notice of the Court. After this is done it is for the Court to consider whether to act or not. The extreme position does not obtain here because there is no right to interference in the same way as in a judicial proceeding. Government may act or may not act; the choice of Government. There is no right to relief as in appeal or revision under the two Codes. But to say that Government has no jurisdiction all in the matter is to err and that is what Government did in this case.

Reference be also made to the decision of the Privy Council in the Commissioner of Income Tax West Punjab vs. The Tribune Trust, Lahore (1948) 16 ITR 214 (PC). In the above case, the privy Council has observed;

It is possible that there might be a contest in which words so inapt for that purpose would create a duty. But in the present case there is no such context. On the contrary section 33 follows upon a number of sections which determine the rights of the assessee and is itself, as its language clearly indicates, intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinate and takes the necessary action upon such review. It appears that as a matter of convenience, a practice has grown up under which the Commissioner has been invited to act ''of his own motion'' under the section and where this occurs a certain degree of formality has been adopted. But the language of the section does not support the contention, which has at the root of the third question and is vital to the respondent''s case, that it affords a claim to relief.

To the same effect is a decision given by a Full Bench of Punjab and Haryana High Court reported as Gurnam Kaur vs. State of Punjab (1993) 13 LR 254. The Full Bench concluded as under:

The aforesaid provision does not specifically mention that such powers could be exercised by the Commissioner or by the Financial Commissioner suo motu or at the instance of the interested or the aggrieved parties. In the absence of use of such phraseology, it cannot be said that the Financial Commissioner or the Commissioner could not act under the provision aforesaid. Rather the statute is to be interpreted in such a manner that it fulfills the object for which the same is framed.

In view of the above, the argument of the learned counsel for the petitioner that proceedings are vitiated for want of failure to follow section 39 cannot be sustained. The petitioner would, however, be at liberty to approach the State Government under second proviso to section 39.

Both the revision petitions are disposed of as indicated above.