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Wednesday, March 25, 2015

whether the material available against the accused persons at this stage makes out a prima facie case that the alleged offence could have been committed by them. The offences charged against the accused are the offences under Section 13(2) and Section 13(1)(d) of the Prevention of Corruption Act and Section 120B of the Indian Penal Code.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 498 OF 2015
                (Arising out of SLP (Crl.)  No.5279 of 2007)

State of Madhya Pradesh                            ...Appellant
                                  :Versus:
Rakesh Mishra                                     ...Respondent
                                    WITH

                       CRIMINAL APPEAL NO. 499 OF 2015
                 (Arising out of SLP (Crl.)  No.5828 of 2007

State of Madhya Pradesh                            ...Appellant
                                  :Versus:
Gyanendra Singh Jadon                        ...Respondent







                               J U D G M E N T

Pinaki Chandra Ghose, J.

1.    Leave granted in both the matters.
2.    These appeals arise out of the judgment  and  order  dated  18th  May,
2007 passed by the High Court of Madhya Pradesh  (Indore  Bench),  disposing
of Criminal Revision Petition  Nos.636/2007,  610/2007  and  566/2007  which
were filed under Section 397 read with Section 401 of the Code  of  Criminal
Procedure, 1973. By the impugned judgment the High Court of  Madhya  Pradesh
has allowed the three revision petitions, setting aside the  orders  of  the
First Additional Judge/ Special Judge, Indore, for framing  charges  against
three accused persons, namely, Rakesh  Mishra,  Gyanendra  Singh  Jadon  and
Sajid Dhanani. It may be noted that the  State  has  assailed  the  impugned
judgment only against Rakesh Mishra and G.S. Jadon.

3.    The brief facts of the case are that Sajid  Dhanani  is  the  Managing
Director of the Sayaji Hotel situated at Scheme No.54, Near Meghdut  Gardan,
Vijay Nagar, Indore. Gyanendra Singh Jadon was working at the relevant  time
as Building Officer posted  at  Municipal  Corporation,  Indore  and  Rakesh
Mishra was working as Sub-Engineer, Municipal  Corporation,  Indore.  It  is
alleged that these three accused hatched a  criminal  conspiracy   in  which
G.S. Jadon and Rakesh Mishra illegally granted a Building Certificate and  a
Completion Certificate to Sayaji Hotel  in  Indore.  Allegedly,  as  illegal
gratification, Sayaji Hotel provided free lifetime  honorary  membership  to
G.S. Jadon and his family members in the Sayaji Club. The original  Building
Permission was given to the applicant Shajid  Dhanani  for  construction  of
multi-storied hotel and adjoining club by the  then  Building  Officer  Shri
J.M. Avasiya vide letter dated 23-12-1993. This  permission  was  to  remain
valid for one year and the letter granting  permission  mentioned  that,  if
required, renewal application must be made  before  22-11-1994.  G.S.  Jadon
became the Building Officer in 1994 and a revised plan was submitted to  him
in the capacity of Building Officer,  which was approved vide letter  12-01-
1995 along with the renewal of  building  permission.  Also  the  completion
certificate of the Club adjoining the Hotel was granted  on  19-01-1995.  On
18-01-1998 an FIR was lodged at  the  Police  Station  -  S.P.E.,  Lokayukta
Office, Bhopal, against G.S. Jadon alleging irregularities  by  the  accused
persons in giving clearances for development of Sayaji Hotel  and  the  said
Club. After investigation the police filed charge-sheet  against  the  three
accused persons. The First Additional Sessions Judge/Special Judge,  Indore,
after perusing the charge-sheet and accompanying documents  ordered  framing
of charges against the three accused for the offences under  Sections  13(2)
and 13(1) (d) of Prevention of Corruption Act read with Section 120B of  the
Indian Penal Code, 1960. The three  accused  moved  to  the  High  Court  by
filing revision petitions against the order  of  the  Addl.  Sessions  Judge
framing charges. The High Court  allowed  the  Revision  Petitions  and  set
aside the order of framing charges  passed  by  the  Addl.  Sessions  Judge,
Indore.

4.    At this stage it would be appropriate to refer to order of  the  Addl.
Sessions Judge which framed the charges. The  charges  framed  against  G.S.
Jadon are that as the Building Officer (a public servant),  he  cleared  and
issued the revised building plan  of  the  Sayaji  Hotel  without  sanction,
approval and clearance from High Rise Committee in violation of Rule  12  of
Bhumi Vikas Niyam, 1984 and  also  without  electricity,  water  supply  and
sewage clearance to the said  project.  Further,  the  charge  against  G.S.
Jadon is for issuing completion certificate without  necessary  electricity,
water, sewage and fire fighting clearances thereby causing illegal gains  to
Sajid Dhanani, proprietor of Sayaji Hotel. It is also alleged  that  he  did
not inform about the completion certificate to the Property  Tax  Department
of Indore Municipal Corporation leading to  evasion  of  tax  by  the  Hotel
amounting to  Rs.5,49,000/-.  The  order  further  charged  G.S.  Jadon  for
accepting free lifetime membership in the  club  of  the  Sayaji  Hotel  for
himself and five family members. This constituted the illegal  gratification
to him.

5.    As against Rakesh Mishra, the charge was of criminal  conspiracy,  for
the reason that  he was  the  Sub-Engineer  at  the  relevant  time  in  the
Building Permission Branch and he made certain notings  in  the  Note  Sheet
favouring  Sajid Dhanani. The charges against Sajid  Dhanani  were  that  in
the capacity of applicant for revision of the  building  plan  and  issuance
completion certificate, he was charged for criminal conspiracy for  offences
under the Prevention of Corruption Act by  providing  illegal  gratification
to G.S. Jadon and evading property tax.

6.    The High Court allowed the revision petitions  on  the  findings  that
the original building permission was granted by J.M.  Awasiya   and  it  was
granted after approval from High Rise Building Committee vide  letter  dated
09-12-1993. The accused had merely granted a revision of the  building  plan
which did not require  any  fresh  approval  from  the  High  Rise  Building
Committee. Also, the High Court found that the approval of  Fire  Department
had been taken vide letter dated 18.10.1994.  It was only later,  that  vide
letter dated 19.10.1997 the fire authorities withdrew their  NOC.  The  High
Court found that the Completion Certificate was also granted while the  Fire
NOC was in force and it was in conformity with Rule  31  of  Madhya  Pradesh
Bhumi Vikas Niyam, 1984. The High Court concluded that the Building  Officer
was under no obligation to inform the property tax department of the  Indore
Municipal Corporation about the completion certificate. In fact,  in  regard
to property tax evasion, the alleged  amount  of  Rs.5,49,000  was  paid  by
Hotel Sayaji when it was demanded by the department.

7.    The major argument advanced by the State of Madhya Pradesh  before  us
has been that the High Court traversed beyond the  permissible  limit  while
deciding the legality of order framing charges,  being  a  pre-trial  stage.
Various authorities have been cited before us to prove that point.  However,
it would suffice to say that the law on this point  is  crystal  clear  that
only charge-sheet along with the accompanying material is to  be  considered
at the stage of framing of charges, so as to satisfy whether a  prima  facie
case is made out. It has to be the  subjective  satisfaction  of  the  Court
framing charges. In our opinion,  the  High  Court  has  only  examined  the
material before it against the prevailing  law  to  reach  its  conclusions.
Thus, the impugned judgment may not be assailable on this ground.

8.    However, the question that arises is whether  the  material  available
against the accused persons at this stage makes out a prima facie case  that
the alleged offence could have been committed by them. The offences  charged
against the accused  are  the  offences  under  Section  13(2)  and  Section
13(1)(d) of the Prevention of Corruption Act and Section 120B of the  Indian
Penal Code.

9.    Learned counsel appearing for the  accused  persons  has  argued  that
G.S. Jadon was  in  the  office  of  Building  Officer  from  31.10.1994  to
16.10.1996.  He cannot be held liable for any act/omission done prior to  or
after this period. It is contended that building permission was  granted  to
Sayaji Hotel prior to his appointment as the Building Officer. It  has  been
further contended that the revision jurisdiction  of  the  High  Court  also
includes the inherent jurisdiction under Section 482 of Cr.P.C..

10.   It is worth noting here that the  revised  building  plan,  which  was
sanctioned in guise of the revision of sanction of the building  permission,
was a complete departure from the original plan. We  do  not  have  detailed
building plans of the original and revised  building  permission.   However,
from the limited information available with us, it can be  fished  out  that
built up area in the original plan was 1810.04 Sq. Mtrs.  on  Ground  Floor,
while  in  the  revised  plan  it  was  increased  to  3476.25  Sq.   Mtrs..
Similarly, for the Club the proposed built up  area  for  Ground  Floor  was
decreased from 4759.11 Sq. Mtrs.  to 1810.62 Sq. Mtrs..

11.   The above are only two illustrations of the changes that  were  sought
to be approved in the revised building plan. It  goes  without  saying  that
when such dramatic and major changes are made to  the  plan,  the  approvals
for fire safety devices, electricity, water supply and  sewage,  granted  as
per original plan would become irrelevant. Also, the completion  certificate
which was granted on 19.01.1995 was merely 7  days  after  the  revision  of
building  permission.   Although,  it  may  be  noted  that  the  completion
certificate was only in relation to the Club and not the Hotel,  yet  it  is
difficult to fathom as to how even a Club could be  completely  built,  with
all compliances within 7 days of building permission,  especially  when  the
revised building plan consisted major changes from  initial  plan.  Further,
the  accused  not  only  granted  the  revision  without  approval  of   any
committee, but also accepted the honorary membership of the Sayaji Club.

12.   Having said so, it would be relevant to  point  out  that  evasion  of
property tax being attributed to the Building Officer; we do not find  merit
in this argument as we do not find any law where  the  Building  Officer  is
required  to  inform  the  property  tax   department   of   the   Municipal
Corporation.

13.   Although we do not wish to comment on the merits of the case  as  this
is the pre-trial stage, yet we are of the view that there exists  sufficient
material to make out a prima facie  case  against  the  accused.  Therefore,
these criminal appeals are allowed, the order passed by the  High  Court  is
set aside and the order of the  Addl.  Sessions  Judge  framing  charges  is
restored.


14.    We  may,  however,  express  our  disappointment  of  such   extended
litigation at the pre-trial stage itself.  The  delay  in  justice  delivery
system not only renders justice  ineffective  but  also  ill-founded  as  it
leads to erosion of evidence. In the light of this observation,  we  request
the Trial Court to conduct the trial in the most expeditious manner.


....................................J
(Pinaki Chandra  Ghose)




....................................J
(R.K. Agrawal)
New Delhi;
March 23, 2015.
ITEM NO.1B               COURT NO.12               SECTION IIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.)  No(s).  5279/2007

(Arising out of impugned final judgment and order dated 18/05/2007  in  CRLR
No. 636/2007 passed by the High Court Of M.P. At Indore)

STATE OF M.P.                                      Petitioner(s)

                                VERSUS

RAKESH MISHRA                                      Respondent(s)


WITH
SLP(Crl) No. 5828/2007

Date : 23/03/2015      These petitions were called on for
            pronouncement of judgment today.

For Petitioner(s)      Mr. Arvind Varma, Sr. Adv.
                       Ms. Deepika Shori, Adv.
                       Mr. C. D. Singh, AOR

For Respondent(s)      Mr. Sumit Kumar Sharma, Adv.
                       Mr. Niraj Sharma, AOR

                       Mr. Brajesh Kumar, AOR

      Hon'ble Mr. Justice Pinaki Chandra  Ghose  pronounced  the  reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr.  Justice  R.K.
Agrawal.
      Leave granted in both the matters.
      The appeals are allowed, the order passed by the  High  Court  is  set
aside and the order of the Addl. Sessions Judge framing charges is  restored
in terms of the signed reportable judgment.

      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)

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