In the High Court of Judicature for Rajasthan at Jodhpur S. B Criminal Misc (pet.) No 159/2018 Petitioner Kailash Chandra Agarwal & Nand Bihari Respondents State of Rajasthan & Bhanwar Singh Date of Judgement 7th April 2020 Bench Hon'ble Mr. Justice Sandeep Mehta
Relevant Provisions
The Indian Penal Code 1820 section 420, 467, 468, 471 and Prevention of Corruption Act 1988 section 13(1) (d), 13(2)
Facts of the case
The case is in connection with S.B Criminal Misc (pet) No 952/2018 Chota Ram and Ram Ratan vs. State of Rajasthan and S.B Criminal Misc (pet) No 1163/2018 Tejmal Choudhary vs. State of Rajasthan. These three Misc petitions involve identical question of facts and laws and thus being declared together.
Misc petitions were preferred by accused petitioners through FIR. The respondent no 2 lodged a complaint to the District collector, Chief Secretary and IG First A.C.B alleging wholesale irregularities committed in sale of 75 bighas of land made in favour of Kailash Chandra Agarwal and Nand Bihari and revenue officers (chhotaram, patwari Ramratan, Tehsildar Tejmal Choudhury) while recommending sale deeds had conspired to facilitate the fraudulent sale and thereby alleged U/S 420, 467, 468, 471 of IPC and 13(1)(d),13(2) of the Prevention of Corruption Act. FIR was lodged by the respondent no 2 and investigation undertook against the petitioners who have approached the Court seeking quashing of the FIR.
Arguments Advanced
Arguments from the petitioners
- Counsel of petitioners in Misc petition no 159/2018 and Misc petition no 1163/2018 and 953/2018 urged that impugned FIR by ACB on the basis of private complaint is absolutely illegal and without justification where Anil kumar Singh & others vs. M.K Aiyappa & Anr and L. Narayana Swamy vs. State of Karnataka & others were referred.
- They also urged that fresh section 17A in Prevention of Corruption Act was inserted where it states that inquiry or investigation cannot be undertaken by any police officer under the Act 1988 without the prior permission of the competent Government where the alleged offence is relatable to any recommendation made or decision taken by the public servant in discharge of the official functions or duties.
Arguments from the Respondents
- Learned public prosecutor and the advocate of complainant opposed the submission by petitioner’s counsel. But they too can not deny the fact that the FIR has been lodged on the basis of private complaint and no approval of competent Government was taken before initiating the inquiry and registering the formal FIR.
Issues
Whether investigation by investigating officer against public servants for offences under prevention of corruption Act and the private individuals without prior approval of Government is justifiable?
Decision
The newly inserted provision prohibits conducting of investigation/inquiry or enquiry under prevention of corruption Act alleged to have been committed by the public servant in discharge of official functions or duties.
The land subject matter of dispute in the case was sold and transferred in the name of petitioners by the public servants in discharge of their official duties. Before initiating any inquiry against public servants under the said act prior permission of Government is an essential and without such approval FIR could not be lodged.
Judgement
As the public servants cannot be prosecuted in the matter, registration of FIR by the Anti-Corruption Bureau against the private individuals i.e. the petitions are illegal and amounts to gross abuse of process of law.
“The views of the authors are personal.”
