The authority can act in accordance with the law beyond the power given in Sec. 92 of the Adhiniyam, and the filing of the FIR cannot be preempted.

Headnote:
Panchayat Raj - Power to Issue Direction for FIR - Sec. 92 of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 - [Sec. 92] - The court discussed the interpretation of Sec. 92 of the Adhiniyam and its application in issuing directions for FIR. It highlighted the principles of natural justice and the authority's power to act in accordance with the law beyond the power given in Sec. 92. The court also referenced relevant judgments to support its decision.
Fact of the Case:

The appellant, a former Surpanch, challenged an order imposing recovery and directing the lodging of an FIR against him. The appellant sought interim protection against the direction to register the FIR.
Finding of the Court:

The court found that the authority had the power to issue directions for lodging the FIR in accordance with the law, and the principles of natural justice under Sec. 92 did not cover the direction to lodge the FIR. The court upheld the learned Single Judge's order based on a Division Bench decision.
Issues: The issues involved the interpretation of Sec. 92 of the Adhiniyam, the authority's power to issue directions for FIR, and the application of principles of natural justice.
Ratio Decidendi: The court held that the authority could act in accordance with the law beyond the power given in Sec. 92, and the direction to lodge the FIR was not covered under the principles of natural justice in Sec. 92. The court also emphasized that the filing of the FIR cannot be preempted, and the appellant could challenge the FIR if and when it is filed against him.
Final Decision: The appeal was dismissed, upholding the learned Single Judge's order.

JUDGMENT

SUJOY PAUL, J. - This intra Court appeal takes exception to order dtd. 1/2/2023 passed in W.P. No. 2268 of 2023 whereby learned Single Judge has issued notices to the respondents and granted limited conditional interim protection to the appellant.

2. The appellant is aggrieved to the extent learned Single Judge has declined to grant interim protection against the direction to register the first information report (FIR).

3. The relevant facts are that appellant/petitioner was a Surpanch till 2020. The specified authority/CEO, Jila Panchayat Satna (respondent No.3) passed an order dtd. 2/1/2023 whereby a recovery was imposed on the petitioner and in addition, the CEO Janpad Panchayat Maihar was directed to lodge a FIR against the petitioner and the other persons concerned.

4. Shri Ajay Pal Singh, learned counsel for the petitioner submits that impugned order was passed in exercise of power under Sec. 92 of the Panchayat Raj and Gram Swaraj Adhiniyam, 1993 (Adhiniyam). Sub Sec. 4 of Sec. 92 makes it clear that principles of natural justice are codified in the shape of Sub Sec. 4 of Sec. 92.

5. The two folds submissions raised are that -

i) under Sec. 92 of the Adhiniyam, the specified authority has no authority, jurisdiction and competence to order registration of FIR.

ii) As per Sub Sec. 4 of Sec. 92, an opportunity of hearing should have been granted to the petitioner before issuing any direction for registration of FIR.

6. The learned Single Judge has mechanically followed the Division Bench order passed in W.A. No. 1259/2021 (Sheshdhar Badgaiya vs. State of Madhya Pradesh and others). In absence of any power under Sec. 92 of Adhiniyam, the learned Single Judge ought to have protected the petitioner from registration of FIR. At the end, he placed reliance on a Single Bench order passed in W.P. No. 16424 of 2021 (Bhupendra Singh Vs. State of M.P. and Ors.) decided on 17/9/2021.

7. Shri Ankit Agrawal, G.A. opposed the prayer, and supported the order of learned Single Judge and has taken assistance of order passed in W.A. No. 1259 of 2021(Sheshdhar Badgaiya vs. State of Madhya Pradesh and others).

8. No other point is pressed by the learned counsel for the parties.

9. We have heard the parties at length and perused the record.

10. So far first point is concerned, in our opinion, whether or not Sec. 92 gives the power to issue direction to register a FIR, fact remains that FIR can be registered in accordance with the provisions of Cr.P.C. It is for the competent authority to decide whether FIR can be reduced in writing/registered or not. The wrong quoting of a provision or non-quoting of a provision will not deprive an authority to issue necessary directions for lodging the FIR. The Supreme Court has considered this aspect in catena of judgments.

"A. In N. Mani v. Sangeetha Theatre [(2004) 12 SCC 278] it is stated: (SCC p. 280, para 9) "9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law."

B. 28. In Ram Sunder Ram v. Union of India [(2007) 13 SCC 255 : (2008) 2 SCC (L&S) 603 : (2007) 9 Scale 197] it was held: (SCC pp. 260-61, para 19) "19. ... It appears that the competent authority has wrongly quoted Sec. 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Sec. 22 of the Army Act.

'9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.' (See N. Mani v. Sangeetha Theatre [(2004) 12 SCC

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