Dismissed

Nityanand Pandey v. the State of Madhya Pradesh

Madhya Pradesh HC20 Jul 2022CRR/2807/2021

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision petition challenging the framing of charges against a former Tehsildar for corruption. The Court held the petitioner was not entitled to protection under the Judges (Protection) Act due to his conduct and dismissed the revision as not maintainable because the petitioner had suppressed the pendency of a related writ petition that was subsequently dismiss

What did the court decide?

Criminal revision dismissed with cost of Rs. 10,000 payable to the M.P. State Legal Services Authority.

Nityanand Pandey Vs the State of Madhya Pradesh — Corruption | Madhya Pradesh HC (2022)

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IN THE HIGH COURT OF MADHYA PRADESH AT INDORE

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BEFORE

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HON'BLE SHRI JUSTICE VIVEK RUSIA

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HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

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ON THE 20^th OF JULY, 2022

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CRIMINAL REVISION No. 2807 of 2021

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Between:-

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NITYANAND PANDEY S/O SHRI BASANT KUMAR PANDEY , AGED ABOUT 49 YEARS, OCCUPATION: SERVICE C-1002 SHIVANSH ELEGANCY BEHIND C.H.L. HOSPITAL (MADHYA PRADESH)

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.....PETITIONER

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(SACHIN BHATNAGAR, LEARNED COUNSEL FOR THE PETITIONER.)

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AND

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THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THR. SPECIAL POLICE ESTABLISHMENT LOKAYUKT UNIT (MADHYA PRADESH)

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.....RESPONDENTS

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(SHRI VAIBHAV JAIN, LEARNED COUNSEL FOR THE RESPONDENT.)

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This revision coming on for admission on this day, JUSTICE VIVEK RUSIA passed the following:

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ORDER

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The petitioner has filed this revision petition against order dated 27.08.2021 whereby the learned trial court has framed the charges against the appellant under section 13(1)(d) r/w 13(2) of the P.C. Act and under section 120-B of the IPC from the period 30.09.2005 to 02.05.2006 the petitioner was posted as Tehsildar, Ujjain and during this tenure he has passed certain mutation orders causing loss to the state government accordingly,

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complaint was made to the Special Police Establishment, Lokayukta and the matter was taken into investigation and FIR was registered at crime No.366/2014. The petitioner filed a petition under section 482 of the Cr.P.C. before this court for seeking quashment interalia on the ground that being a Tehsildar he has acted as a judge therefore, he is entitled for protection under section 3(1) of the Judges Protection Act,1985. Vide order dated 07.01.2015 this court has dismissed the revision holding that there is no bar in investigating the matter and dismissed the petition. Thereafter, the petitioner has approached Apex Court by way of SLP Criminal No.4556/2015 and vide order dated 02.11.2015 the Apex Court has declined to interfere with the order and dismissed the SLP.

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Thereafter, the state government has granted the sanction for prosecution which the petitioner challenged by way of writ petition No.7121/2016 by claiming the protection under section 3(1) of the Judges Protection Act,1985. Vide order dated 02.12.2016 this court has dismissed the petition by specific finding that the petitioner is not entitled to claim protection under section 3(1) of the Judges Protection Act,1985. Thereafter, the petitioner appeared in the trial and filed an application under section 227 of Cr.P.C. seeking discharge on the same ground that he is entitled for Judges Protection Act. Vide detailed order dated 27.08.2021 learned court has not only dismissed the application filed by the petitioner but also framed the charges under section 13(1)(d) r/w 13(2) of the P.C. Act and under section 120-B of the IPC hence, present revision has been filed before this court.

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Shri Vaibhav Jain, learned counsel for the respondent/Lokayukta has produced the photocopy of order passed in Writ petition No.7121/2016 (Nityanand Pandey Vs.

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State of M.P.) decided on 02.12.2016 (2016 SCC MP Online MP 7940) . We are surprised to see that the petitioner and the counsel both are same but they did not disclose this fact in this criminal revision. The aforesaid writ petition was filed for quashment of the prosecution mainly on the ground that he is entitled for protection under the Judges (Protection) Act, 1985. Paragraph 16 to 20 of the above mentioned order is reproduced below:-

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“16. Section 3 of the Judges (Protection) Act, 1985 reads as under:- (

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“3.Addition Protection to Judges- 1. Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of subsection (2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. 1. Nothing in sub-section (1) shall debar or affect in any manner, the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal or departmental proceedings or otherwise) against any person who is or was a Judge.

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17. Simple reading of this Section leaves no doubt that there is no embargo or rider on the powers of Central Government or State Governments to take any action by way of criminal proceedings against any person who is or was a Judge. 18. Getting direct evidence regarding intention is not so easy but the same can be inferred from the conduct of the petitioner. The answer can be traced in a decision of the Hon'ble Apex Court in R.R. Parekh vs. High Court of Gujarat and Another, reported in AIR 2016 S.C. 3356. The Hon'ble Court has held in Para no.15 of the judgment that :-

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" (The issue of whether a judicial officer has been actuated by an oblique motive or corrupt practice has to be determined upon a careful appraisal of the material on the record. Direct evidence of corruption may not always be forthcoming in every case involving a misconduct of this nature. A wanton breach of the governing principles of law or procedure may well be indicative in a given case of a motivated, if not reckless disregard of legal principle. In the absence of a cogent

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explanation to the contrary, it is for the disciplinary authority to determine whether a pattern has emerged on the basis of which an inference that the judicial officer was actuated by extraneous considerations can be drawn. Cases involving misdemeanours of a judicial officer have to be dealt with sensitivity and care. A robust common sense must guide the disciplinary authority. At one end of the spectrum are those cases where direct evidence of a misdemeanour is available. Evidence in regard to the existence of an incriminating trail must be carefully scrutinized to determine whether an act of misconduct is established on the basis of legally acceptable evidence. Yet in other cases, direct evidence of a decision being actuated by a corrupt motive may not be available. The issue which arises in such cases is whether there are circumstances from which an inference that extraneous considerations have actuated a judicial officer can legitimately be drawn. Such an inference cannot obviously be drawn merely from a hypothesis that a decision is erroneous. A wrong decision can yet be a bona fide Error of judgment. Inadvertence is consistent with an honest error of judgment. A charge of misconduct against a judicial officer must be distinguished from a purely erroneous decision whether on law or on fact. The legality of a judicial determination is subject to such remedies as are provided in law for testing the correctness of the determination. It is not the correctness of the verdict but the conduct of the officer which is in question. The disciplinary authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power. The circumstances let into evidence to establish misconduct have to be sifted and evaluated with caution. The threat of disciplinary proceedings must not demotivate the honest and independent officer. Yet on the other hand, there is a vital element of accountability to society involved in dealing with cases of misconduct. There is on the one hand a genuine public interest in protecting fearless and honest officers of the district judiciary from motivated criticism and attack. Equally there is a genuine public interest in holding a person who is guilty of wrong doing responsible for his or his actions. Neither aspect of public interest can be ignored. Both are vital to the preservation of the integrity of the administration of justice'

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(Emphasis Supplied)

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19. In the present case, repeated orders have been passed by the petitioner in the same manner and in all 18 cases were found in which he has mutated the name of the parties in the same manner which caused loss to

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the State exchequer. Therefore, in our considered opinion, he cannot claim protection under the Judges (Protection) Act. It is already decided in the order dated 07.01.2015, passed in MCRC No.7970/2014 that prima facie case is made out against the applicants and from the orders it is reflected that he constituted a conspiracy to cause wrongful loss to the State exchequer.

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20. As far as mutation order dated 11.07.2011 is concerned, that is a matter of fact and it can be decided by the trial Court on merit."

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This court has categorically held that looking to the conduct of the petitioner he is not entitled for the protection under the Act of 1985. The petitioner has not approached this court with clean hands.

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The aforesaid fact of filing and dismiss of the writ petition has been suppressed in this revision, therefore, this criminal revision is not maintainable hence is hereby dismissed with the cost of Rs.10,000/- payable in the M.P. State Legal Services Authority.

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(VIVEK RUSIA) (AMAR NATH (KESHARWANI)) JUDGE JUDGE

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Ajit/-

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AJIT KAMALASAN AN

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Digitally signed by AJIT KAMALASANAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba241e ffad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D61A1EE901 C09EF29, serialNumber=7F0BEE2D78BD57DA058F3247441C87E7 E0817FB61F5E2ABCAEE63CAAA7B3B9FF, cn=AJIT KAMALASANAN Date: 2022.07.21 17:03:46 +05'30'

Nityanand Pandey v. the State of Madhya Pradesh

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Nityanand Pandey v. the State of Madhya Pradesh

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