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     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

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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

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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

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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

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 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

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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:

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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

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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

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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.