caselaws
Supreme Court of India
Vinod Chandra Semwal vs Spl.Police Establisghment … on 24 February, 2015Author: ………………………J.
Bench: Sudhansu Jyoti Mukhopadhaya, N.V. Ramana
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2129 OF 2011
|VINOD CHANDRA SEMWAL |.. |APPELLANT(s) |
| Versus |
|SPECIAL POLICE ESTABLISHMENT, UJJAIN |… |RESPONDENT(s) |
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
This appeal has been preferred by the appellant against the order
dated 13.7.2011 passed by the Principal Bench of High Court of Madhya
Pradesh at Jabalpur, in Criminal Revision No. 1821 of 2009. By the
impugned order, the High Court allowed the criminal revision preferred by
the investigating agency-State and set-aside the order dated 30.3.2007
passed by the Special Judge (Prevention of Corruption Act), Ratlam
(hereinafter to be referred to as “Special Judge”).
2. The appellant Vinod Chandra Semwal is a member of the Indian
Administrative Service of Madhya Pradesh cadre. Since 4.7.1991, he was
posted as Collector, Ratlam. On 21.12.1992, in exercise of the power
conferred under Section 31 of the Madhya Pradesh Town Improvement Trusts
Act, 1961 (for short “the Act”), the State Government appointed him as
Chairman of the Town Improvement Trust, Ratlam (for short “the Trust”), a
statutory body constituted under Section 4 of the Act. The allegation
against the appellant is that while holding the post of the Chairman of
the Trust, he abused his position as a public servant and transferred
30,000 square feet of government land to an ineligible and unauthorised
person Vinod Bhai Parekh without any consideration and thereby caused loss
of Rs. 1,34,33,381/- to State exchequer. The allegation was made after
eight years of the alleged incident. On receipt of the complaint, Shri
Deepak Tiwari, Lokayukta, Bhopal conducted a preliminary inquiry and found
prima face case of commission of offences punishable under Section 13(1)(d)
read with Section 13(2) of the Prevention of Corruption Act, 1988 (for
short “P.C. Act”) and Section 120B of the Indian Penal Code (IPC). A case
as Crime No. 57/2001 was registered by Special Police Establishment,
Lokayukta. Despite repeated requests by the prosecution, sanction under
Section 19 of the P.C. Act to prosecute the appellant under Section
13(1)(d) read with Section 13(2) of the P.C. Act was not granted and by
order dated 23.1.2007, sanction under Section 197 of the Code of Criminal
Procedure to prosecute the appellant under Section 120B IPC was refused by
the Madhya Pradesh Government. It is informed that the Central Government
even refused to grant sanction to prosecute the appellant. However, on
24.1.2007, the prosecution filed charge-sheet against the appellant and co-
accused Vinod Bhai under Section 120B of the Indian Penal Code and under
Sections 13(1)(d) read with 13(2) of the P.C. Act without any sanction.
3. The Special Judge in Special Case No.1 of 2007, vide order dated
30.3.2007, declined to take cognizance against the appellant of the
offences punishable under Section 13(1)(d) read with Section 13(2) of the
P.C. Act for want of sanction of prosecution under Section 19 of the P.C.
Act and refusal of sanction under Section 197 of the Cr.P.C. for
prosecution under Section 120B IPC.
4. On the order being challenged by the prosecution, the Division Bench,
by impugned order, referred the case of Prakash Singh Badal and another
vs. State of Punjab and others (2007)1 SCC 1 and held that the same ratio
was applicable as the appellant had not executed the exchange deed in the
capacity of Collector but in the capacity of Chairman, Town Improvement
Trust, Ratlam.
5. It was contended on behalf of the appellant that as the appellant was
posted as Collector of Ratlam on 4.7.1991, he was ex-officio Chairman of
the Town Improvement Trust, Ratlam, a statutory body under the Act. In
that view of the matter, the sanction was mandatory under Section 19 of
the P.C. Act for prosecution of the appellant for the offences punishable
under Section 13(1)(d) read with Section 13(2) of the P.C. Act and sanction
under Section 197 Cr.P.C. was required for prosecuting the appellant under
Section 120B of the IPC.
6. During the course of arguments, learned senior counsel for the
appellant, referring to the documents on record, submitted that in fact
exchange deed was executed by one K.K. Singh Chauhan as Chairman of the
Trust. On the other hand, learned senior counsel for the State submitted
that the aforesaid plea cannot be taken at this stage as it is a matter of
investigation and can be taken only during the trial. He placed reliance
on Office Order dated 22.12.1992 to suggest that the appellant had
delegated the powers to said K.K. Singh Chauhan.
7. From the record the following fact emerges:
The appellant was not appointed on the post of Chairman of the Trust
by name but was appointed for being posted as Collector, Ratlam. This is
evident apparent from the order No. F-178/32/92 dated 21.12.1992, relevant
portion of which reads as follows:
“MADHYA PRADESH GOVERNMENT
HOUSING & ENVIRONMENT DEPARTMENT
ORDER
Bhopal, dt. 21.12.92
No. F-178/32/92
Exercising the powers conferred under Section 31 of the Madhya Pradesh Town
Improvement Act, 1960 (Act No. 14 of 1961), the State Government hereby
appoint the followings as mentioned in Schedule-I on the posts of Chairman
of the Improvement Trusts of the State
1. Town Improvement Trust (sic): Collector Raigarh
2. Town Improvement Trust Jhansi Collector Hoshangabad
xxx xxx xxx xxx
14. Town Improvement Trust Collector Chhindwara
15. Town Improvement Trust, Ratlam Collector Ratlam
16. Town Improvement Trust Collector Mandsaur
by the order of H.E. the Governor
sd/-
(Rajendra Singh)
Deputy Secretary
Madhya Pradesh Government
(Housing & Environment Dept.)”
8. It appears that as the appellant was the Collector, by order No.
5218/Ratlam dated 22.12.1992, he delegated all his powers, duties and
functions except those conferred or vested in Chairman under Section 25(1)
and (2) of the Act except those conferred or imposed upon or vested under
Sections 16,19,29 and 56 of the Act subject to control and revision by
Chairman, if necessary. The order has been placed by the learned senior
counsel for the State and reads as follows:
OFFICE OF THE TOWN IMPROVMENT TRUST, RATLAM
NO………..RATLAM DATED THE…………
OFFICE ORDER
I, V.Semval, Chairman Town Improvement Trust, Ratlam hereby delegate to
Shri K.K. Singh Chauhan, Chief Executive Officer, Town Improvement Trust,
Ratlam under Section 25(1) and (2) of the Town Improvement Trust Act, 1960
(14 of 1961) all the powers, duties or functions except those conferred or
impose upon or vested in Chairman u/s 16,19,29 and 56 subject to control
and revision by Chairman, if necessary.
In addition to above powers the Chief Executive Officer Shri K.K.Singh
Chauhan will also perform the duties of secretary to the Chairman and draw
and disburse the pay, leave salary, T.A./D.A. etc. of the Trust Officials.
He will also sanction earned leave, half pay leave, commuted w.e.f. to the
sub-ordinate staff.
He will also pay and sign the constructors bill regarding constructions
works being executed by the trust and other routine payments. He will
invite tenders for the works and take necessary follow up actions. He will
sign all the cheques for the payments of bills etc.
sd/
Chairman
Town Improvement Trust
Ratlam (M.P.)
No. 5218/Ratlam dated 22.12.1992
Copy forwarded to Shri K.K. Singh Chauhan, Chief Executive Officer and the
Secretary, Town Improvement Trust, Ratlam for compliance.
sd/
Chairman
Town Improvement Trust
Ratlam (M.P.)
9. The photocopy of the original exchange-deed dated 23.12.1993 in Hindi
has been produced by the learned senior counsel for the appellant. The
English version of which has been produced by the learned senior counsel
for the State and relevant portion of which reads as follows:
Exchange Deed
The Chairman, Ratlam Reformation Trust, hereinafter called the party No. 1
and legal heir Shri Vinod Bhai s/o Jai Singh Bhai M/s. Jai Singh Bhai
Purushottam Das, R/o Ahmedabad, presently residing at Office Road, Ratlam
and Jitender Bhai S/o Rasik Lal Sah through power of attorney holder, Shri
Vinod Bhai s/o Jai Singh Bhai r/o Ahmedabad, presently residing at Office
Road, Ratlam, who are valid legal heirs of the trustee of M/s. Purushottam
Das Hari Ballav Das Jeevan Das, Ahmedabad, according to the deed dated
11.2.1992, are called the party NO. 2.
This Exchange Deed of the year 1993 has been made and executed on day of
December, 1993 between both the parties:
xxx xxx xxx
10. 2 Copies of this deed will be executed and in every deed complete
contents of the registry will be mentioned. Second party will have the
typed deed and the second copy will retained by the first party.
For the testimony of this deed, the said parties in the year mentioned
hereinabove in the presence of below-signed witnesses have signed herein in
Ratlam, which are true and correct and so that this document may be
utilized when it is needed. The end date 23.12.1993.
Signature of the witnesses
sd/-
Signature of the First Party
Sd/-
Signature of the Second Party
10. From the photocopy of the exchange deed (original exchange deed in
Hindi), we find that the said exchange deed has been signed by Shri K.K.
Singh Chauhan as Chairman, Ratlam Sudhar Nyas, Ratlam (M.P.).
11. In the charge-sheet No. 04/07 dated 23.1.2007, the aforesaid fact has
been noticed by the investigating officer and the same appears from the
portion quoted below:
“During the course of posting of Sri Semwal, Collector, Ratlam itself the
State of Madhya Pradesh on 21.12.1992 appointed him President of the City
Development Ratlam (N-No. 1P No. 62). He on 22.12.92 received the charge
of the President from Sri Raghunandan Joshi and on that very date according
to letter No. 5218/22.12.92 udner the City Development Trust Act the powers
vested in the President, delegated Shri K.K. Singh Chauhan the Chief
Executive Officer of the Trust (N-No. 1 page No. 65). Shri Semwal in the
capacity of Collector in Case No. 5A/39/90-91 only after 7 days of the
passing of the order dated 12.02.93 on 19.2.93 in the capacity of President
City Development Trust, Ratlam on page no. 288 Part 3(1) of M.P. Gazette
dated 19th February, 1993 published the acquisition of the said land
(survey No. 130 and 131) for Plan No. 71 for City Center Development of the
Trust whereas he was knowing that the land is of the Government and this
according to the previous proposal of the Trust has to be obtained from the
Collector,Ratlam (N. No. 1 page No. 82).
In that on the seal of first party President City Development Trust Ratlam
is the signature of Shri K.K. Singh Chauhan and the second party Shri Vinod
Bhai Parekh. Transfer-deed is enclosed on (N. No. 1 page No. 150).
12. The above fact is also not disputed by the learned counsel for the
State but according to him those are the questions of fact which are to be
looked into by the trial court.
13. In the present case what we find is that the delegatee K.K.Singh
Chauhan executed the exchange-deed dated 23.12.1993 on behalf of the
Chairman. There is nothing on record to suggest that it was executed at
the instance of the appellant. By Office Order dated 22.12.1992, the
appellant, as Chairman of the Trust, delegated all his powers to Shri
K.K.Singh Chauhan, Chief Executive Officer, Town Improvement Trust under
Section 25(1)(2) of the Act. All the powers, duties or functions were
delegated to him except the powers conferred or imposed upon or vested in
Chairman under Sections 16,19,29 and 56 of the Act. If the delegatee has
not acted in terms of the delegated powers, we are of the view that the
delegator cannot be held to be guilty for such execution of the exchange
deed. Though for some other reasons, we are of the view that it was not a
fit case for grant of sanction either under Section 19 of the P.C. Act for
prosecuting the appellant under Sections 13(1)(d) read with 13(2) of the
P.C. Act or under Section 197 Cr.P.C. for prosecuting the appellant under
Section 120B IPC. If the State Government and the Central Government
refused to grant sanction, the Special Judge rightly declined to take
cognizance of the offences punishable under Section (1)(d) read with
Section 13(2) of the P.C. Act and for want of prosecution of sanction
under Section 19 of the P.C. Act and Section 120B IPC for want of sanction
under Section 197 Cr.P.C.
14. For the reasons aforesaid, we set-aside the impugned order passed by
the Division Bench of the High Court. However, this order will not come in
the way of prosecution to make investigation with regard to other accused
persons.
15. Appeal is allowed with aforesaid observations.
………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………J.
(N.V. RAMANA)
NEW DELHI;
FEBRUARY 24, 2015.
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