R D AHERWAR Vs. SPECIAL POLICE ESTABLISHMENT

JUDGEMENT

(1.) The petitioner seeks the relief to quash the prosecution of the petitioner in special case No. 9/98 and further seeks to quash the sanction for prosecution Annexure P.3 pending before Special Judge, Bhopal, against the petitioner for offences under Sections 13(1)(d)(ii)(iii) and Section 13(2) of the Prevention of Corruption Act, 1988 and Sections 120-B and 37 of the IPC.

(2.) The petitioner alleges that he was Additional Secretary on 11/08/1995. An order was passed by the former Minister Shri B.R. Yadav exempting 7.50 acres of land to the land owners from scheme No. 54 of the Indore Development Authority. The petitioner was present during the hearing of the parties on 20-2-97 held by former Minister, Shri Rajendra Kumar Singh and recorded the minutes as per the order of the Minister and communicated such decision vide letter dated 24-2-97. The petitioner submitted a proposal on 28-2-1997 to the Secretary that the compliance of directions issued by the State Government is delayed by the Indore Development Authority and proposed direction to the Indore Development Authority (for short 'IDA') for immediate compliance and after due approval issued direction to the IDA on 5-3-97. The petitioner issued clarification to the IDA on 20-3-97 instructing that plots of 7.50 acres be released to land owners, their family members and their nominated persons.

(3.) The petitioner was retired on 31-3-97 from the post of Additional Secretary to the Govt. of M.P. in Housing and Environment Department. The challan was filed on 4-7-98 in the Court of Special Judge, Bhopal, Petitioner avers that the entire proceedings are illegal, arbitrary and without authority of law. The petitioner only performed official duties and functions assigned to him as Govt. servant and no case of criminal misconduct is made out. The Special Judge took cognizance of the offences. Petitioner submits that the cognizance of offence under Sections 120-B and 37 of the IPC could not be taken without prior sanction under Section 197 of the Cr. P.C. The Additional Secretary, Law Department, respondent No. 2 granted sanction for prosecution against the petitioner vide order dated 26-12-98. The challan filed against the petitioner is illegal and be quashed. Petitioner further submits that so far as prosecution of the two former Ministers Shri B.R. Yadav and Shri Rajendra Kumar Singh is concerned, the matter was placed before Council of Ministers for sanction of prosecution. The Council of Ministers found that there is nothing to infer that both Shri B. R. Yadav and Shri Rajendra Kumar Singh were acting together in pursuit of common end and with other persons and there was no meeting of mind nor common intention and it was found that ingredients for attracting Section 120-B of the IPC were not available. However, his Excellency the Hon'ble Governor of M.P. disagreed with the decision of the Council of Ministers and accorded sanction for prosecution against the two former Ministers by order dated 23-9-98. The order passed by His Excellency, the Hon'ble Governor was challenged by two former Ministers in W.P. No. 4924/98 and W.P. No. 4925/98. The Hon'ble High Court as per order dated 30-1-99 allowed both the petitions and quashed the sanction for prosecution.