REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1706-1708 OF 2011
(Arising out of S.L.P. (Crl.) Nos. 364-366 of 2010)
Arun Kumar Aggarwal ........ Appellant
versus
State of Madhya Pradesh & Ors. ........Respondents
J U D G M E N T
H.L. Dattu, J.
1. Leave granted.
2. These appeals, by special leave, are directed against the
Judgment and Order dated 22.4.2009 passed by the High
Court of Madhya Pradesh in Criminal Revision No. 821 of
2005, Criminal Revision Petition No. 966 of 2005 and
Criminal Case No. 3403 of 2005, whereby the High Court has
allowed the revision application and inter alia quashed the
Order dated 26.4.2005 in case diary of Crime No. 165 of 2002
passed by the First Additional Sessions Judge and Special
Judge, Katni (hereinafter referred to as "learned Special
Judge").
3. The brief factual matrix relating to this appeal is as follows:
The respondent no. 2, Shri. Raghav Chandra, who is a
Commissioner of M.P. Housing Board, Bhopal along with
respondent no. 3, Shri. Shahjad Khan, posted as the then
Collector, Katni, Jabalpur and respondent no. 4, Shri. Ram
Meshram, posted as the Land Acquisition Officer, M.P.
Housing Board, Bhopal, whilst, discharging their functions,
had allegedly entered into conspiracy and made a secret plot
with Shri. B.D. Gautam, the Director of Olphert Company and,
subsequently, purchased the land belonging to Olphert
Company at higher rates for the M.P. Housing Board, thereby,
caused a financial loss of over `4 Crores to the Government.
The appellant reported this alleged transaction of purchase of
land by the M.P. Housing Board, alleging financial loss to the
Government, to the Lokayukta, Bhopal. Subsequently, the
Special Police Establishment (Lokayukta), Jabalpur
(hereinafter referred to as "the Lokayukta Police") registered
an FIR No. 165 of 2002 against accused respondent nos. 2 to
4, as the alleged act or conduct of the accused respondents,
all working as Government Servants, amounts to an offence
under Section 13 (1-d) and 13(2) of the Prevention of
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Corruption Act, 1988 (hereinafter referred to as "the PCA")
and Section 120-B of the Indian Penal Code (hereinafter
referred to as "the IPC"). Accordingly a Criminal Case No. 165
of 2002 was registered against respondent nos. 2 to 4 in the
Court of learned Special Judge. However, the sanction of the
Government was necessary as mandated by Section 19 of the
PCA in order to prosecute the said accused respondents.
Acting upon the complaint of the appellant, the Lokayukta
Police, after conducting the investigation, had exonerated
respondent nos. 2 to 4 of all the charges leveled against them
and submitted final closure report, under Section 169 of the
Criminal Procedure Code (hereinafter referred to as "the Cr.
P.C."), to the learned Special Judge, Katni as no case had
been made out to prosecute respondents. Thereafter, the
learned Special Judge, Katni after hearing the respondents,
appreciating the evidence on record and perusing the case
diary, had rejected the closure report vide his Order dated
26.4.2005. The operative portion of the order dated
26.4.2005 passed by the learned Special Judge is extracted
below:
"31. In this way from above record produced,
even prima facie, it is evident that the accused
had made secrete plot (durabhi sandhi) with
Shri B.D. Gautam the Director of Olphert
Company with conspiracy and purchased land
of Olphert Company on higher rate and caused
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financial loss over four crores to the
Government which there are sufficient grounds
for taking cognizance against the accused
persons.
32. Accused person Shri Raghav Chandra is
posted as Commissioner of M.P. Housing Board
and Shri Ram Meshram is posted as Land
Acquiring Officer in M.P. Housing Board and
Shri Shahjaad Khan while remaining posted as
Collector, all above accused persons working
as Government servant, while discharging their
government duties, committed above crime-
under section 19 of Anti Corruption Act 1988, it
is necessary to obtain sanction to prosecute
Government Servant U/S 13 of Anti-Corruption
Act. Therefore matter may be taken up seeking
necessary sanction to prosecute the accused
persons Raghav Chandra, Shri Ram Meshram
and Shahjaad Khan to prosecute them under
Section 13 (1-d), 13 (2) Anti Corruption Act
and under Section 120-B I.P.C. and for
necessary further action, case be registered in
the criminal case diary."
4. Aggrieved by the above observation, respondent nos. 2 to 4
preferred Criminal Revision Petitions under Section 482 of the
Cr.P.C. before the High Court. The High Court allowed the
revision petitions and quashed the Order dated 26.4.2005 of
the learned Special Judge on the ground that the Order of the
learned Special Judge is illegal and without jurisdiction, in
view of the decision of this Court in Abhinandan Jha v. Dinesh
Mishra, AIR 1968 SC 117, as the Magistrate cannot impinge
upon the jurisdiction of the police by directing them to change
their opinion when the closure report had been submitted by
the police under Section 169 of the Cr.P.C. The reliance is also
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placed on the observation made by this Court in the case of
Mansukh Lal Vithaldas Chauhan v. State of Gujarat AIR 1997
SC 3400 wherein it is observed that:
"19. Since the validity of "Sanction" depends
on the applicability of mind by the sanctioning
authority of the facts of the case as also the
material and evidence collected during
investigation it necessarily follows that the
sanctioning authority has to apply its own
independent mind for the generation of
genuine satisfaction whether prosecution has
to be sanctioned or not. The mind of the
sanctioning authority should not be under
pressure from any quarter nor should any
external force be acting upon it to take a
decision one way or the other. Since the
discretion to grant or not to grant sanction
vests absolutely in the sanctioning authority,
its discretion should be shown to have not
been affected by any extraneous consideration.
It is shown that the sanctioning authority was
unable to apply its independent mind for any
reason whatsoever or was under an obligation
or compulsion or constraint to grant the
sanction, the order will be bad for the reason
that the discretion of the authority "not to
sanction" was taken away and it was
compelled to act mechanically to sanction the
prosecution."
5. Being aggrieved, the appellant is before us in this appeal.
6. The issue involved in the present appeal for our consideration
is: Whether the High Court is justified in treating the
operative portion of the Order of the learned Special Judge as
a direction issued to the sanctioning authority to sanction the
prosecution of the accused respondent Nos. 2 to 4.
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7. We have heard the learned counsel for the parties to the lis
and perused the record.
8. The learned counsel for the appellant submits that the Special
Judge, vide his Order dated 26.4.2005, refused to accept the
closure report submitted before him by the Lokayukta Police
as he found it to be not reasonable and finally rejected it. The
other portion of the Order, wherein the learned Special Judge
observed particularly about the initiation of Challan
proceedings, is a mere observation or passing remark. In
other words, the learned counsel submits that this portion of
the Order, dealing with Challan proceedings, can, at the most,
be treated as expression of his personal opinion. He further
submits that wholistic reading of this Order clearly suggests
that the learned Special Judge's remark pertaining to Challan
proceedings is in the nature of mere obiter dicta and could
not qualify to be treated as a direction of the Court even by
any stretch of imagination. The learned counsel contends that
the Order of the learned Special Judge cannot be treated as
direction issued to the sanctioning authority to prosecute the
respondents as this Order nowhere addresses sanctioning
authority and moreover, nowhere directs sanctioning
authority to do any affirmative action or abstain from doing
anything. Therefore, the High Court is not justified in
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quashing the Order of the learned Special Judge and treating
it to be a direction issued to the sanctioning authority to
prosecute the accused respondent nos.2 to 4.
9. Per contra, the learned counsel for the respondents submits
that the Order of the learned Special Judge is in the nature of
command and amounts to a direction to the sanctioning
authority to prosecute respondent nos. 2 to 4. Therefore, this
Order of the learned Special Judge is illegal and without
jurisdiction. The learned counsel further supported the
impugned Order and Judgment of the High Court.
10. We have heard the learned counsel for the parties before us.
The short point in issue before us is based on the nature of
the Order passed by the learned Special Judge whether it
amounts to a direction issued by the Court to the concerned
authority or mere observation of the Court.
11. We will first discuss the nature and scope of the expression
`direction' issued by the Court. This Court in Rameshwar
Bhartia v. The State of Assam, 1953 SCR 126 whilst
distinguishing the expression `Sanction' from the `Direction',
for the purpose of initiating the prosecution has held:
"15. But where a prosecution is directed, it
means that the authority who gives the
direction is satisfied in his own mind that the
case must be initiated. Sanction is in the
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nature of a permission, while a direction is in
the nature of a command." (Emphasis
supplied).
12. In Income Tax Officer, A-Ward, Sitapur v. Murlidhar Bhagwan
Das, Lakhimpur kheri, (1964) 6 SCR 411, this Court has
observed that the expression "direction" cannot be construed
in vacuum, but must be collated to the directions which the
Assistant Appellate Commissioner can give under Section 31
of the Indian Income Tax Act, 1922.
13. This Court in Rajinder Nath v. CIT, (1979) 4 SCC 282, while
considering the meaning of expression `finding' and
`direction', occurring in Section 153(3)(ii) of the Income Tax
Act, 1961, has held:
"11. ... As regards the expression "direction" in
Section 153(3)(ii) of the Act, it is now well
settled that it must be an express direction
necessary for the disposal of the case before
the authority or court. It must also be a
direction which the authority or court is
empowered to give while deciding the case
before it. The expressions "finding" and
"direction" in Section 153(3)(ii) of the Act
must be accordingly confined." (Emphasis
supplied).
14. In Kanhiya Lal Omar v. R.K. Trivedi & Ors., (1985) 4 SCC
628, this Court has observed that "A direction may mean an
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order issued to a particular individual or a precept which
many may have to follow. It may be a specific or a general
order."
15. In Giani Devender Singh v. Union of India, (1995) 1 SCC 391,
this Court, whilst considering the direction issued by the High
Court in a Public Interest Litigation, has observed that the
directions should not be vague, sweeping or affected by
sarcasm which are not capable of being implemented. It
should be specific, just and proper in the facts and
circumstances of the case. This Court further held:
"10. It appears to us that when the High Court
was not in a position to precisely discern what
was the complaint alleged by the petitioner
and when the High Court was of the view that
the prayer made by the petitioner was absurd
and it also held that the officers who were
alleged to have been carrying on nefarious
activities were more imaginary than real, the
direction in general and sweeping terms to
sack erring officers (whomsoever they may be)
and overhaul the administration by recruiting
only conscientious and devoted people like the
petitioner in order to satisfy the vanity of the
petitioner, should not have been made. If the
High Court intends to pass an order on an
application presented before it by treating it as
a public interest litigation, the High Court must
precisely indicate the allegations or the
statements contained in such petition relating
to public interest litigation and should indicate
how public interest was involved and only after
ascertaining the correctness of the allegation,
9
should give specific direction as may deem just
and proper in the facts of the case.
11. It appears to us that the application was
disposed of by the Division Bench of Madhya
Pradesh High Court in a lighter vein and the
order dated 27-2-1992 is couched in veiled
sarcasm. Such course of action, to say the
least, is not desirable and the High Court
should not have issued mandate in general
and sweeping terms which were not intended
to be implemented and were not capable of
being implemented because of utter vagueness
of the mandate and of its inherent absurdity."
(Emphasis supplied)
16. The Blacks Law Dictionary (9th ed. 2009) defines the term
`Direction' as an order; an instruction on how to proceed.
17. The meaning of expression "Direction" has been discussed in
Corpus Juris Secundum, Vol. 26A, at pg. 955-956 as thus:
"The word "direction" is of common usage, and
is defined as meaning the act of governing,
ordering, or ruling; the act of directing,
authority to direct as circumstances may
require; guidance; management;
superintendence; "prescription;" also a
command, an instruction, an order, an order
prescribed, either verbally or written, or
indicated by acts; that which is imposed by
directing, a guiding or authoritative
instruction; information as to method."
18. According to P. Ramanatha Aiyar, Advanced Law Lexicon (3rd
ed. 2005) the word `Direction' means: address of letter, order
1
or instruction as to what one has to do. A direction may serve
to direct to places as well as to persons. Direction contains
most of instruction in it and should be followed. It is
necessary to direct those who are unable to act for
themselves. Directions given to servants must be clear,
simple and precise.
19. According to the Words and Phrases, Permanent Edition, Vol.
12A, the term `Direction' means a guiding or authoritative
instruction, prescription, order, command.
20. To sum up, the direction issued by the Court is in the nature
of a command or authoritative instruction which contemplates
the performance of certain duty or act by a person upon
whom it has been issued. The direction should be specific,
simple, clear and just and proper depending upon the facts
and circumstances of the case but it should not be vague or
sweeping.
21. At this stage, it is pertinent to consider the nature and scope
of a mere observation or obiter dictum in the Order of the
Court. The expression obiter dicta or dicta has been discussed
in American Jurisprudence 2d, Vol. 20, at pg. 437 as thus:
"74. -Dicta
Ordinarily, a court will decide only the
questions necessary for determining the
1
particular case presented. But once a court
acquires jurisdiction, all material questions are
open for its decision; it may properly decided
all questions so involved, even though it is not
absolutely essential to the result that all
should be decided. It may, for instance,
determine the question of the constitutionality
of a statute, although it is not absolutely
necessary to the disposition of the case, if the
issue of constitutionality is involved in the suit
and its settlement is of public importance. An
expression in an opinion which is not
necessary to support the decision reached by
the court is dictum or obiter dictum.
"Dictum" or "obiter dictum: is distinguished
from the "holding of the court in that the so-
called "law of the case" does not extend to
mere dicta, and mere dicta are not binding
under the doctrine of stare decisis,
As applied to a particular opinion, the question
of whether or not a certain part thereof is or is
not a mere dictum is sometimes a matter of
argument. And while the terms "dictum" and
"obiter dictum" are generally used
synonymously with regard to expressions in an
opinion which are not necessary to support the
decision, in connection with the doctrine of
stare decisis, a distinction has been drawn
between mere obiter and "judicial dicta," the
latter being an expression of opinion on a point
deliberately passed upon by the court."
(Emphasis supplied).
Further at pg. 525 and 526, the effect of dictum has been
discussed:
"190. Decision on legal point; effect of dictum
1
... In applying the doctrine of stare decisis, a
distinction is made between a holding and a
dictum. Generally stare decisis does not attach
to such parts of an opinion of a court which are
mere dicta. The reason for distinguishing a
dictum from a holding has been said to be that
a question actually before the court and
decided by it is investigated with care and
considered in its full extent, whereas other
principles, although considered in their relation
to the case decided, are seldom completely
investigated as to their possible bearing on
other cases. Nevertheless courts have
sometimes given dicta the same effect as
holdings, particularly where "judicial dicta" as
distinguished from "obiter dicta" are involved."
22. According to P. Ramanatha Aiyar, Advanced Law Lexicon (3rd
ed. 2005), the expression "observation" means a view,
reflection; remark; statement; observed truth or facts;
remarks in speech or writing in reference to something
observed.
23. The Wharton's Law Lexicon (14th Ed. 1993) defines term `obiter
dictum' as an opinion not necessary to a judgment; an
observation as to the law made by a judge in the course of a
case, but not necessary to its decision, and therefore of no
binding effect; often called as obiter dictum, ; a remark by
the way.
24. The Blacks Law Dictionary, (9th ed, 2009) defines term `obiter
dictum' as a judicial comment made while delivering a judicial
1
opinion, but one that is unnecessary to the decision in the
case and therefore not precedential (although it may be
considered persuasive). -- Often shortened to dictum or, less
commonly, obiter. "Strictly speaking an `obiter dictum' is a
remark made or opinion expressed by a judge, in his decision
upon a cause, `by the way' -- that is, incidentally or
collaterally, and not directly upon the question before the
court; or it is any statement of law enunciated by the judge or
court merely by way of illustration, argument, analogy, or
suggestion.... In the common speech of lawyers, all such
extrajudicial expressions of legal opinion are referred to as
`dicta,' or `obiter dicta,' these two terms being used
interchangeably."
25 The Word and Phrases, Permanent Edition, Vol. 29 defines the
expression `obiter dicta' or `dicta' thus:
"Dicta are opinions of a judge which do not
embody the resolution or determination of the
court, and made without argument or full
consideration of the point, are not the
professed deliberate determinations of the
judge himself; obiter dicta are opinions uttered
by the way, not upon the point or question
pending, as if turning aside for the time from
the main topic of the case to collateral
subjects; It is mere observation by a judge on
a legal question suggested by the case before
him, but not arising in such a manner as to
require decision by him; "Obiter dictum" is
made as argument or illustration, as pertinent
1
to other cases as to the one on hand, and
which may enlighten or convince, but which in
no sense are a part of the judgment in the
particular issue, not binding as a precedent,
but entitled to receive the respect due to the
opinion of the judge who utters them;
Discussion in an opinion of principles of law
which are not pertinent, relevant, or essential
to determination of issues before court is
"obiter dictum"
26. The concept of "Dicta" has also been considered in Corpus
Juris Secundum, Vol. 21, at pg. 309-12 as thus:
"190. Dicta
a. In General
A Dictum is an opinion expressed by a court,
but which, not being necessarily involved in
the case, lacks the force of an adjudication; an
opinion expressed by a judge on a point not
necessarily arising in the case; a statement or
holding in an opinion not responsive to any
issue and noty necessary to the decision of the
case; an opinion expressed on a point in which
the judicial mind is not directed to the precise
question necessary to be determined to fix the
rights of the parties; or an opinion of a judge
which does not embody the resolution or
determination of the court, and made without
argument, or full consideration of the point,
not the professed deliberate determination of
the judge himself. The term "dictum" is
generally used as an abbreviation of "obiter
dictum" which means a remark or opinion
uttered by the way.
Such an expression or opinion, as a general
rule, is not binding as authority or precedent
within the stare decisis rule, even on courts
1
inferior to the court from which such
expression emanated, no matter how often it
may be repeated. This general rule is
particularly applicable where there are prior
decisions to the contrary of the statement
regarded as dictum; where the statement is
declared, on rehearing, to be dictum; where
the dictum is on a question which the court
expressly states that it does not decide; or
where it is contrary to statute and would
produce an inequitable result. It has also been
held that a dictum is not the "law of the case,"
nor res judicata."
27. The concept of "Dicta" has been discussed in Halsbury's Laws
of England, Fourth Edition (Reissue), Vol. 26, para. 574 as
thus:
"574. Dicta. Statements which are not
necessary to the decision, which go beyond
the occasion and lay down a rule that it is
unnecessary for the purpose in hand are
generally termed "dicta". They have no binding
authority on another court, although they may
have some persuasive efficacy. Mere passing
remarks of a judge are known as "obiter
dicta", whilst considered enunciations of the
judge's opinion on a point not arising for
decision, and so not part of the ratio decidendi,
have been termed "judicial dicta". A third type
of dictum may consist in a statement by a
judge as to what has been done in other cases
which have not been reported.
... Practice notes, being directions given
without argument, do not have binding judicial
effect. Interlocutory observations by members
of a court during argument, while of
persuasive weight, are not judicial
pronouncements and do not decide anything."
1
28. In Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1
SCC 101 and Divisional Controller, KSRTC v. Mahadeva
Shetty, (2003) 7 SCC 197, this Court has observed that "Mere
casual expressions carry no weight at all. Not every passing
expression of a judge, however eminent, can be treated as an
ex cathedra statement, having the weight of authority."
29. In State of Haryana v. Ranbir, (2006) 5 SCC 167, this Court
has discussed the concept of the obiter dictum thus:
"A decision, it is well settled, is an authority for
what it decides and not what can logically be
deduced therefrom. The distinction between a
dicta and obiter is well known. Obiter dicta is
more or less presumably unnecessary to the
decision. It may be an expression of a
viewpoint or sentiments which has no binding
effect. See ADM, Jabalpur v. Shivakant Shukla.
It is also well settled that the statements
which are not part of the ratio decidendi
constitute obiter dicta and are not
authoritative. (See Divisional Controller,
KSRTC v. Mahadeva Shetty)"
30. In Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555,
this Court has held:
"Thus, observations of the Court did not relate
to any of the legal questions arising in the case
and, accordingly, cannot be considered as the
part of ratio decidendi. Hence, in light of the
aforementioned judicial pronouncements,
which have well settled the proposition that
1
only the ratio decidendi can act as the binding
or authoritative precedent, it is clear that the
reliance placed on mere general observations
or casual expressions of the Court, is not of
much avail to the respondents."
31. In view of above, it is well settled that obiter dictum is a mere
observation or remark made by the court by way of aside
while deciding the actual issue before it. The mere casual
statement or observation which is not relevant, pertinent or
essential to decide the issue in hand does not form the part of
the judgment of the Court and have no authoritative value.
The expression of the personal view or opinion of the Judge is
just a casual remark made whilst deviating from answering
the actual issues pending before the Court. These casual
remarks are considered or treated as beyond the ambit of the
authoritative or operative part of the judgment.
32. In the facts and circumstances of the present case, we are of
the opinion that the refusal of the learned Special Judge, vide
its Order dated 26.4.2005, to accept the final closure report
submitted by Lokayukta Police is the only ratio decidendi of
the Order. The other part of the Order which deals with the
initiation of Challan proceedings cannot be treated as the
direction issued by the learned Special Judge. The relevant
portion of the Order of the learned Special Judge dealing with
1
Challan Proceeding reads as "Therefore matter may be taken
up seeking necessary sanction to prosecute the accused
persons Raghav Chandra, Shri Ram Meshram and Shahjaad
Khan to prosecute them under Section 13 (1-d), 13 (2) Anti
Corruption Act and under Section 120-B I.P.C and for
necessary further action, case be registered in the criminal
case diary." The wordings of this Order clearly suggest that it
is not in the nature of the command or authoritative
instruction. This Order is also not specific or clear in order to
direct or address any authority or body to perform any act or
duty. Therefore, by no stretch of imagination, this Order can
be considered or treated as the direction issued by the
learned Special Judge. The wholistic reading of this Order
leads to only one conclusion, that is, it is in the nature of
`Obiter Dictum' or mere passing remark made by the learned
Special Judge, which only amounts to expression of his
personal view. Therefore, this portion of the Order dealing
with Challan proceeding, is neither relevant, pertinent nor
essential, while deciding the actual issues which were before
the learned Special Judge and hence, cannot be treated as the
part of the Judgment of the learned Special Judge.
33. In the light of the above discussion, we are of the opinion
that, the portion of the Order of the learned Special Judge
1
which deals with the Challan proceedings is a mere
observation or remark made by way of aside. In view of this,
the High Court had grossly erred in considering and treating
this mere observation of the learned Special Judge as the
direction of the Court. Therefore, there was no occasion for
the High Court to interfere with the Order of the learned
Special Judge.
34. In the result, the appeals are allowed. The impugned Order
and Judgment of the High Court in Criminal Revision No. 821
of 2005, Criminal Revision Petition No. 966 of 2005 and
Criminal Case No. 3403 of 2005 dated 22.4.2009 is set aside.
We restore the Order of the learned Special Judge dated
26.4.2005.
35. We direct the respondents to comply with the order passed by
the Trial Court within two months from this date.
........................
...J.
[G.S. SINGHVI]
........................
...J.
[H.L. DATTU]
New Delhi,
September 02, 2011.
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