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MADHYA PRADESH HIGH COURT
Sanjay Yadav, B.K. Shrivastava, JJ.
Kavindra Kiyawat - Appellant
Versus
State Of Madhya Pradesh & Ors. - Respondent
Writ Petition No. 27734 of 2019
Decided On : 11-08-2020
PREVENTION OF CORRUPTION ACT - FIR - QUASHING - [SECTION 7] - [SECTION 17A] - Petitioner, a Govt. servant, seeks quashing of FIR registered against him for offences under Section 7 of the Prevention of Corruption Act, 1988 (as amended vide Amendment Act No.16 of 2018) read with Section 120B of the Indian Penal Code. It is contended that the FIR is false and fabricated, has no footing in any material evidence and is contrary to the facts borne out from the documents obtained from the department through RTI. It is also urged that the lodging of FIR against the petitioner, who is a Govt. servant, is contrary to and is prohibited by Section 17A of the Prevention of Corruption Act, 1988 (as amended vide Amendment Act No.16 of 2018). HELD, dismissing the petition: (i) On the face of the contents of the FIR prima facie it cannot be said that no cognizable offence is made out. The investigation is yet to be completed. The explanation tendered by the petitioner on the basis of the documents obtained from the State Government through RTI and the stand taken by the Principal Secretaries of Aviation and General Administration Department, cannot be adjudicated at the stage when the investigation is not complete. (ii) Section 17A of the Prevention of Corruption Act, 1988 (as amended vide Amendment Act No.16 of 2018) only prohibits conducting of any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the Act if such offence is relatable to any recommendation made or decision taken by such public servant under the Act in discharge of his official functions or duties without the previous approval of the Union/State Government or the appointing authority, as the case may be. The provision of Section 17A does not prohibit lodging of an FIR and in case such information discloses a cognizable offence, it is imperative for a police officer under Section 154(1) of CrPC to register a crime.
Fact of the Case:
Petitioner, a Govt. servant, seeks quashing of FIR registered against him for offences under Section 7 of the Prevention of Corruption Act, 1988 (as amended vide Amendment Act No.16 of 2018) read with Section 120B of the Indian Penal Code. It is contended that the FIR is false and fabricated, has no footing in any material evidence and is contrary to the facts borne out from the documents obtained from the department through RTI. It is also urged that the lodging of FIR against the petitioner, who is a Govt. servant, is contrary to and is prohibited by Section 17A of the Prevention of Corruption Act, 1988 (as amended vide Amendment Act No.16 of 2018).
Finding of the Court:
(i) On the face of the contents of the FIR prima facie it cannot be said that no cognizable offence is made out. The investigation is yet to be completed. The explanation tendered by the petitioner on the basis of the documents obtained from the State Government through RTI and the stand taken by the Principal Secretaries of Aviation and General Administration Department, cannot be adjudicated at the stage when the investigation is not complete. (ii) Section 17A of the Prevention of Corruption Act, 1988 (as amended vide Amendment Act No.16 of 2018) only prohibits conducting of any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the Act if such offence is relatable to any recommendation made or decision taken by such public servant under the Act in discharge of his official functions or duties without the previous approval of the Union/State Government or the appointing authority, as the case may be. The provision of Section 17A does not prohibit lodging of an FIR and in case such information discloses a cognizable offence, it is imperative for a police officer under Section 154(1) of CrPC to register a crime.
Issues: Whether the FIR registered against the petitioner is liable to be quashed?
Ratio Decidendi: The FIR is not liable to be quashed. Section 17A of the Prevention of Corruption Act, 1988 (as amended vide Amendment Act No.16 of 2018) only prohibits conducting of any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the Act if such offence is relatable to any recommendation made or decision taken by such public servant under the Act in discharge of his official functions or duties without the previous approval of the Union/State Government or the appointing authority, as the case may be. The provision of Section 17A does not prohibit lodging of an FIR and in case such information discloses a cognizable offence, it is imperative for a police officer under Section 154(1) of CrPC to register a crime.
Final Decision: Petition dismissed.
JUDGMENT
Sanjay Yadav, J. - Petitioner vide present petition under Article 226 of the Constitution of India, seeks quashment of FIR No.282/2019 dated 24.11.2019 registered against the petitioner including 15 other persons by Special Police Establishment (Lokayukt), Bhopal for the offences under Section 7 of the Prevention of Corruption Act, 1988 (as amended vide Amendment Act No.16 of 2018) read with Section 120B of the Indian Penal Code.
2. Relevant facts borne out from the FIR are that the Lokayukt Organization received a complaint from one Shri Piyush Jain on 12.03.2015 and Shri Bharat Bamne on 06.07.2015, both residents of Indore, alleging large scale corruption by the officials of the Madhya Pradesh Public Works Department and various Collectors posted at Ujjain in connivance with the Directors of a private aviation company viz., Yash Air Limited in respect of maintenance, use and development of airstrip at Datana, Ujjain. These complaints were respectively registered as 4511/C/14 and 1153/C/15 and further led to preliminary enquiry vide P.E. No.120/15 registered on 22.07.2015. The preliminary enquiry report is the genesis for registration of impugned FIR.
3. Taking us through the FIR and relying on the documents obtained through RTI, it is submitted on behalf of the petitioner that he has been falsely implicated. It is urged that the agreement which is the basis for the allegations levelled against the petitioner was entered into between M/s Yash Air Limited and the Aviation Department, Govt. of Madhya Pradesh on 31.08.2006 for maintenance, use and development of airstrip in question, was for a period of 7 years and later, extended for 3 years and the allegation with regard to non-collection of lease rent which led to alleged loss to the Government, is for the period till 2013, whereas, the petitioner was posted as Collector, Ujjain from 07.08.2014 till 27.08.2016. It is urged that the allegations are not supported by any cogent material evidence as would prima facie bring home the guilt of the petitioner. It is urged that the petitioner is a decorated officer dedicated to his service and the facts mentioned in the FIR are entirely fabricated, have no footing in any material evidence and are contrary to the facts borne out from the documents obtained from the department through RTI. It is also urged that the lodging of FIR against the petitioner, who is a Govt. servant, is contrary to and is prohibited by Section 17A of the Prevention of Corruption Act, 1988 (as amended vide Amendment Act No.16 of 2018) [for brevity "1988 Act"]. Petitioner has placed reliance on the decisions in State of Haryana vs Bhajan Lal, (1992) Supp1 SCC 335 and Yashwant Sinha vs CBI, (2020) 2 SCC 338 to bring home the submissions.
4. Respondent No.1-SPE(Lokayukt) has filed detailed return; whereby, besides raising the objection as to maintainability of the petition under Article 226 of the Constitution, the allegations and averments are elaborately answered. However, relying on the contents of the FIR, it is contended that the allegations are not only in respect of recovery of dues qua the use of said airstrip but also as to the expenditure incurred by the State for its maintenance and development and its non recovery. It is urged that the FIR pertains to commission of offence by the aviation company viz. M/s Yash Air Limited, Indore, whose name was later changed to M/s Centaur Aviation Academy Limited, in connivance with the Government officers as to non-compliance of mandatory condition of agreement which led the Government to maintain and develop by incurring expenditure, whereas, the aviation company was allowed to use the facility. It is urged that, at the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154 of the Code of Criminal Procedure, 1973, the officer-in-charge is under an obligation to register a case and then to proceed with the inves
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