State of M.P vs Nanhe Singh

Rakesh Saksena, J.—State has filed this revision against the order dated 13.1.2001 passed by Special Judge [Prevention of Corruption Act], Mandla in Special Case No. 1/95 whereby learned Special Judge discharged the respondent of the charges under sections 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act (for brevity ''the Act''). Brief history of the case is that a first information report was recorded by Special Police Establishment, Lokayukt that respondent, who happened to be the M.L.A. from Dindori, demanded and received Rs. 20,000/- as bribe from four complainants for their appointments on the post of Teacher. After completion of investigation, petitioner filed charge sheet against the respondent without obtaining sanction for prosecution u/s 19 of the Act.

Charge sheet was filed in the Court of Special Judge on 17.5.1995. On 29.5.1995, a bailable warrant was issued for securing presence of respondent in the Court. On 18.12.1995 charges under sections 7 and 13(1)(d) read with section 13(2) of the Act were framed and the case was fixed for recording of the evidence. Statements of 12 prosecution witnesses were recorded till 8.9.1998.

In the course of trial, respondent filed number of applications challenging his prosecution in the absence of sanction u/s 19 of the Act, but they were rejected on the ground that he did not challenge the order of taking cognizance and of framing charge in the High Court. However, on 13.1.2001, learned Special Judge in the light of Apex Court''s decision rendered in P.V. Narsimha Rao Vs. State (CBI/SPE), holding that since respondent, at the time of taking cognizance, was a member of Legislative Assembly, as such a public servant, the prosecution against him could not be continued, discharged him. Aggrieved by the aforesaid order, petitioner ''SPE'' has filed this revision.

Learned counsel for the petitioner submitted that once cognizance against the respondent was taken, the charges were framed and the evidence was recorded, the respondent could not have been discharged since the impugned order of discharge amounted to recall or review of the order taking cognizance or framing charge in the case against the respondent. He placed reliance on the law laid by the Apex Court in the case of Adalat Prasad Vs. Rooplal Jindal and Others, and Everest Advertising Pvt. Ltd. Vs. State, Govt. of NCT of Delhi and Others, In the case of Adalat Prasad (supra), Apex Court observed: "It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 Cr PC because the Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 Cr PC. The view of the Supreme Court in K.M. Mathew Vs. State of Kerala and another, that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law." Similarly in case of Everest Advertising (P) Ltd. (supra), approving the decision rendered by it in Adalat Prasad (supra), Supreme Court held that in a case where summons were issued by the learned Magistrate by reason of an order. He recalled the said order. He did not have any jurisdiction in that behalf. A Magistrate does not have and, thus, cannot exercise any inherent jurisdiction.

In the case of Bholu Ram Vs. State of Punjab and Another, , Apex Court observed: "If the act of taking cognizance, issuance of process or joining of an innocent person as an accused is totally uncalled for or ex facie bad in law, it is open to the aggrieved party to invoke inherent jurisdiction of the High Court u/s 482 CrPC. If the High Court is satisfied that the order passed by the Magistrate was illegal, improper or arbitrary, it can exercise inherent powers and quash criminal proceedings initiated against the party. But that power is independent and has nothing to do with recalling of an earlier order by the Court which passed it."

It has been settled by the Supreme Court in P.V. Narasimha Rao''s case (supra) that a member of Parliament or a member of State Legislature who holds an office and is required to perform public duties is, therefore, a ''public servant''. No doubt cognizance against a public servant for an offence under the provision of the Act cannot be taken in the absence of previous sanction u/s 19 of the Act, but the settled position of law is that once the cognizance is taken, the said order cannot be recalled or reviewed by the same Court even if the same happened to be illegal or bad in law. It would only be open to the aggrieved party to invoke the revisional or inherent jurisdiction of the High Court, as the case may be, to get the illegality or mistake rectified.

Taking into consideration the facts and circumstances of the present case, in the light of the aforesaid propositions of law, we are of the view that the learned Special Judge committed error in recalling the order taking cognizance and discharging the respondent. Accordingly, the impugned order passed by the learned Special Judge is set aside.

In the peculiar facts and circumstances of the case, in view of the law laid down by the Apex Court in the case of P.V. Narasimha Rao (supra) and also in view of the ratio of Division Bench decision of this Court rendered in Gambhir Singh and another v. State of M.P. M.Cr.C. No. 9098\\2010, dated 11.2.2011 (Jab. Bench), we hold that taking of cognizance against the respondent for the offence under sections 7 and 13(1)(d) read with section 13(2) of the Act in the absence of sanction u/s 19 of the Act, at the time when respondent was a sitting M.L.A., was incompetent and illegal and, therefore, deserved to be quashed. Accordingly, the order of taking cognizance and consequent criminal proceedings against the respondent including charges are quashed.

The Special Judge shall, however, be at liberty to consider the matter for taking cognizance afresh against the respondent in case requisite sanction is obtained by petitioner or the petitioner is able to establish that the need of sanction for taking cognizance against the respondent is no longer an essentiality according to law.

Subject to above directions, the revision stands disposed of. Record of the trial Court be sent back immediately.