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)
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)
