1 2025:CGHC:776-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPCR No. 513 of 2024 Vinay Kumar Gupta S/o Gaurishankar Gupta Aged About 55 Years R/o Village - Jarhadih, Post - Maharajganj, District - Balrampur- Ramanujganj, Chhattisgarh ... Petitioner versus 1 - State of Chhattisgarh Through Secretary, General Administration Department, State of Chhattisgarh, Mahanadi Bhawan, Mantralaya, Atal Nagar New Raipur, District - Raipur Chhattisgarh 2 - State of Chhattisgarh Through Principal Secretary, Department of Law And Legislative Affairs, State of Chhattisgarh, Mahanadi Bhawan, Mantralaya, Atal Nagar New Raipur, District - Raipur Chhattisgarh 3 - Additional Director General (Police) Economic Offence Wing/ Anti- Corruption Bureau, Head Quarter, Telibandha, Raipur District - Raipur Chhattisgarh 4 - Superintendent of Police Economic Offence Wing/ Anti-Corruption Bureau, Head Quarter, Telibandha, Raipur District - Raipur Chhattisgarh 5 - Inspector State Economic Offences Wing And Anti-Corruption Bureau Raipur, Unit Ambikapur, District - Surguja Chhattisgarh 6 - Munshi Ram S/o Magaru Ram Aged About 42 Years R/o Post - Sanawal, Tahsil - Ramanujganj, District Balrampur Ramanujganj Chhattisgarh ... Respondents (Cause-title taken from Case Information System) ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.01.07 17:55:04 +0530 2 For Petitioner : Mr. Sushil Dubey, Advocate For State : Dr. Saurabh Kumar Pande, Deputy Advocate General Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Order on Board Per Ramesh Sinha, Chief Justice 06.01.2025 1. Heard Mr. Sushil Dubey, learned counsel for the petitioner. Also heard Dr. Saurabh Kumar Pande, learned Deputy Advocate General, appearing for the State. 2. By way of this petition, the petitioner has prayed for following reliefs:- “10.1 It is therefore prayed that, this Hon'ble Court may kindly be pleased to call for the entire records pertaining to the case of the petitioner. 10.2 That, this Hon'ble Court may kindly be pleased to issue a writ in nature of mandamus whereby to directing to the Respondent No. 1 and 2 to produce all the gazette notifications issued by the Central or State Government in connection with Prevention of Corruption Act, 1988 read with the Amendment Act 2018 regarding 1. Declaration of Office of Anti-Corruption Bureau Ambikapur as a Police Station or Chowki, 2. Conferring of power on a police 3 officer of the rank of Inspector to Investigate the cases under the Act, 1988, 3. After Amendment Act, 2018, the gazette notifications issued in respect of sanction of prosecution, before the learned Trial Court. 10.3 That, this Hon'ble Court may kindly be pleased to issue a writ in nature of mandamus whereby to directing to the Respondent No. 1 and 2 to submit an affidavit to the effect when no gazette notification has been issued by the Central or State Government in connection with Prevention of Corruption Act, 1988 read with the Amendment Act 2018 regarding 1. Declaration of Office of Anti-Corruption Bureau Ambikapur as a Police Station or Chowki, 2. Conferring of power on a police officer of the rank of Inspector to Investigate the cases under the Act, 1988, 3. After Amendment Act, 2018, the gazette notifications issued in respect of sanction of prosecution, before the learned Trial Court. 10.4 That, this Hon'ble Court may kindly be pleased to issue direction to the learned Court to consider the documents/gazette notification or affidavit in the criminal case bearing Special Sessions Case (Corruption) No. 01/2021 which is pending before the Court of Special Court (Prevention of Corruption Act) Balrampur, Place- Ramanujganj (CG) in connection with the 4 Crime No. 01/2021 registered by the State Economic Offence Wing (EOW)/Anti- Corruption Bureau, Raipur. 10.5 Any other relief/reliefs, which this Hon'ble Court may think fit and proper in the facts and circumstances of the case, with cost of the petition, may also please be granted to the petitioners.” 3. Brief facts of the case, in a nutshell, are that, the petitioner is presently posted as Chief Executive Officer in Janpad Panchayat Bhayyathan District - Surajpur (CG). Earlier before joining of the petitioner on the post of Chief Executive Officer, Janpad Panchayat Ramchandrapur District - Balrampur Ramanujganj. a proposal was made by the Village Panchayat Sanawal for construction of a bridge on Kharkharwa Nala, which was sanctioned by the Office of Chief Executive Officer, Zila Panchayat Balrampur-Ramanujganj on 05.10.2018 to the tune of Rs.10,00,000/- and the aforesaid work was completed by the village Panchayat Sanawal (work Agency) on 07.03.2019. A completion certificate was sent to the Office of Chief Executive Officer, Zila Panchayat Balrampur-Ramanujganj and the cost of construction was estimated as Rs.9,95,785/-. Thereafter in month of June 2020, the petitioner was posted as Chief Executive Officer Janpad Panchayat, Ramchandrapur District Balrampur- Ramanujgaj and he joined the post accordingly. On 26.10.2020, 5 the Office of CEO Janpand Panchayat, Ramchandrapur had received an amount of Rs 9,95,785/-through RTGS in the account of CEO Zila Panchayat, Ramchandrapur. 4. Thereafter, the complainant Munshiram who is the former Sarpanch of village Sanawal, approached to the resident of the petitioner on 28.10.2020 and demanded a cheque in his name for the construction work of bridge, which was constructed during his tenure as a Sarpanch. When the petitioner refused to fulfill his illegal demand, the complainant threatened the petitioner. Then, petitioner immediately made a complaint against the complainant to the Police Station Ramanujganj on 28.10.2020 and immediately, on 25.11.2020, the petitioner made the payment of Rs.9,95,785/- to the account of work agency through RTGS. The complainant/respondent No.6 Munshi Ram made a written complaint dated 19.11.2020 before the Office of Anti-Corruption Bureau (ACB) Ambikapur stating therein that earlier he was Sarpanch of Village Panchayat Sanawal and during his period, the construction of bridge of Kharkharwa Nala situated in Village Panchayat Sanawal by the Agency of Gram Panchayat, for which, Rs.10,00,000/- had been sanctioned by the Zila Panchayat District- Balrampur-Ramanujganj. In financial year 2018-19, valuation of the bridge of Kharkharwa Nala was evaluated and verified by the Sub-Divisional Officer (RES) Janpad Panchayat Ramchandrapur and payment amounting of Rs.9,93,000/- was 6 pending by the Janpad Panchayat Ramchandrapur District- Balrampur-Ramanujganj. The complainant met with the Chief Executive Officer, Janpad Panchayat Ramchandrapu (present petitioner), who demanded Rs1,00,000/- in consideration of providing cheque in respect of construction of bridge of Kharkharwa Nala and continuously, he was being harassed for demand of bribe. But, he did not want to pay Rs.1,00,000/- to the CEO, but wanted catch him red handed at the time of taking bribe. On the said complaint dated 19.11.2020, no action was taken. Thereafter, a trap proceeding was conducted and a zero FIR has been registered against the petitioner on 30.12.2020 and on the same day, the petitioner was arrested by Office of Anti-Corruption Bureau (ACB) Ambikapur. 5. On the basis of charge-sheet filed against the petitioner by the EOW and ACB Raipur for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short, “P.C. Act”), trial was commenced in the Special Court (Prevention of Corruption Act) Balrampur, Place- Ramanujganj (CG) bearing Special Sessions Case (Corruption) No. 01/2021. 6. During the trial, the petitioner raised the aforesaid legal issues by filing an application under Section 57 of Evidence Act whereby he sought for the documents i.e. Gazette Notification issued by the Central or State Government in respect of establishment/ 7 declaration of Office of ACB Ambikapur as a Police Station or Chowki. The prosecution/State did not file any written reply, but made oral submissions along with copy of certain documents. The learned trial Court rejected the application vide order dated 03.11.2023. When the trial Court rejected the application under Section 57 of the Evidence Act, the petitioner moved another application dated 07.12.2023 under Section 395 of Code of Criminal Procedure, 1973 (for Short, “CrPC”) read with Section 232 of CrPC before the learned trial Court thereby again raising same legal issues with a prayer to make a reference to the Hon'ble High Court. The application was also dismissed by the learned trial Court vide order dated 11.01.2024 7. On the aforesaid points, the petitioner preferred a petition under Section 482 of CrPC for quashing of FIR before this Court bearing CRMP No.1063 of 2021, which was dismissed on the ground that charge-sheet was filed and criminal proceeding was initiated against the petitioner. However, liberty was granted to the petitioner to raise the legal issue before the trial court. By virtue of the order dated 28.06.2024 passed by this Court in CRMP No.1063 of 2021, the petitioner raised the legal issues before the learned trial Court by filing an application dated 08.08.2024, whereby he sought to have produced from prosecution witnesses the gazette notifications issued by the Central or State Government in connection with Prevention of Corruption Act, 1988 8 read with the Amendment Act 2018 regarding : “1. Declaration of Office of Anti-Corruption Bureau Ambikapur as a Police Station or Chowki. 2. Conferring of power on a police officer of the rank of Inspector to Investigate the cases under the Act, 1988, 3. After Amendment Act, 2018, what gazette notifications have been issued in respect of sanction of prosecution”. During the pendency of the aforesaid application, the prosecution/State filed its reply with prayer for dismissal of the application. Thereafter, the learned Trial Court vide order dated 18.09.2024, disposed of the application without granting any relief to the petitioner. Hence this Petition. 8. Mr. Sushil Dubey, learned counsel for the petitioner submits that the petitioner has wrongly been made an accused in a criminal case bearing Special Sessions Case (Corruption) No. 01/2021, which is pending before the Court of Special Court (Prevention of Corruption Act) Balrampur, Place- Ramanujganj (CG) in connection with the Crime No. 01/2021 registered by the State Economic Offence Wing (EOW)/Anti-Corruption Bureau, Raipur for the offence punishable under Section 7 of the P.C. Act read with the Amendment Act, 2018. He further submits that the investigation conducted by the Office of ACB Ambikapur by registering a zero FIR and by an officer who is holding the rank of Inspector without following the provision of Act, 1988, which is illegal and contrary to law after passing of the Amendment Act, 9 2018. It has been contended that the Office of Anti Corruption Bureau Ambikapur is not a police Statio and there is no gazette notification regarding declaration of the Office of ACB Ambikapur as a Police Station under Section 2 (s) of the Cr.P.C as well as there is only an executive instruction (Order) dated 10.11.2022, which declares the Office of ACB Ambikapur as Head Office. It has been further contended that learned trial Court has dismissed the applicants made by the petitioner and closed the opportunity to bring into picture a legal issue. The petitioner is only accused of an offence and he is considered innocent until proven guilty and if he is not afforded any opportunity of raising the legal issue in his defence before the Court, it will amount to failure of justice. As such, the petition be allowed. 9. On the other hand, learned State Counsel opposes the submissions advanced by learned counsel for the petitioner and submits that earlier the petitioner has filed a petition, being Cr.M.P. No.1063 of 2021, which was dismissed by this Court vide order dated 28.06.2024. He further submits that some of the witnesses have recorded their statement and statement of some of them are yet to be recorded. It has been contended that learned trial Court has rejected the application of the petitioner vide order dated 11.01.2024, which was not challenged by the petitioner in any of the forum, as such, the said order has attained finality. Therefore, the instant petition deserves to be dismissed as 10 no interference is warranted by this Court. 10. We have heard learned counsel for the parties and perused the documents annexed with the writ petition, particularly, the order dated 11.01.2024 passed by the trial Court with utmost circumspection. 11. Perusal of the documents annexed with the writ petition, it goes to show that earlier the petitioner has filed a petition bearing Cr.M.P. No.1063 of 2021, which was dismissed vide order dated 28.06.2024 by observing as follows :- “5. From the documents on record and looking to the facts and circumstances of the case and also considering the fact that the charge sheet has been filed after collection of evidence, we are not inclined to interfere with the charge sheet filed or criminal proceedings initiated against the petitioner. Accordingly, the petition is liable to be and is hereby dismissed. However, the legal issues the petitioner wants to raise, same can be raised at appropriate stage before the trial Court.” 12. From perusal of the order dated 11.01.2024, it transpires that the petitioner has filed an application under Section 395 read with Section 232 of the Cr.P.C., which was dismissed by the trial Court by observing as follows :- “After finding evidence of crime against the petitioner and receiving prosecution 11 approval order from the State Government vide order No.08/34/2021/4842/21-A (Act)/CG Atal Nagar Raipur dated 07.05.2021 of CG Government Law and Legislative Affairs Department, Ministry Mahanadi Bhawan, Nava Raipur, Atal Nagar District Raipur, charge-sheet No.01/2021 has been presented against the accused on 27.07.2021 in crime No.01/2021 for the offence punishable under Section 7 of the Prevention of Corruption Act 1988 (as amended) 2018. Under the application submitted earlier by the petitioners, Section 57 of the Indian Evidence Act has been repealed, and in relation to the said application, the reply was submitted earlier by the Anti Corruption Bureau Ambikapur. In relation to formation of Anti Corruption Bureau, General Administration Department Ministry Raipur dated 27.02.2003 issued a notification in which the General Administration Department's notification No.04/SAPRV/2000 dated 01.11.2000 has been declared as a “Police Station”. It will also be the “Police Station” for the 'Anti Corruption Bureau', which will have jurisdiction over the entire State of Chhattisgarh for the offence punishable under the Prevention of Corruption Act 1988 (No. 49 of 1988). Vide letter No.F 5-20/2012/1-7 Raipur dated 10.10.2022 of the General Administration Department Ministry, Deputy Superintendent of Police Anti Corruption 12 Bureau Ambikapur (Surguja) has been declared as the “Drawing and Disbursing Officer”. Anti Corruption Bureau Ambikapur Office is a regional office of State Economic Offences Investigation Bureau/Anti Corruption Bureau Raipur Chhattisgarh whose only Police Station headquarters in entire Chhattisgarh is located in Raipur. Registers and documents related to complaint, investigation and office work are maintained. Since the jurisdiction of the Police Station of Anti Corruption Bureau is entire Chhattisgarh, further action will be taken by registering an unnumbered First Information Report at the regional office. On 17.09.2003, all the Police Inspectors of Anti Corruption Bureau, Chhattisgarh have been authorized by the General Administration Department, Chhattisgarh regarding the right to investigation. Prosecution sanction order was issued against the accused only after obtaining consent from the original department of the accused by Chhattisgarh Law Legislative Affairs Department. If the original Department of the accused does not give consent within the stipulated time period, then Chhattisgarh Law Legislative Affairs Department was competent to issue prosecution sanction order against the accused. As per Madhya Pradesh Government General Administration 13 Department Memorandum No. F. 11(32)/97/1- 10, dated 28.02.1998, a copy of the guidelines issued regarding prosecution sanction against Government officers / employees in Economic Offences Investigation Bureau cases had also been submitted. Citing the judgment passed in CRR No.638/2023 {Narayan Singh Sidar vs. State of Chhattisgarh}, the Hon'ble High Court, considering the order issued by the State Government from time to time in this regard, has rejected the application made on the said points and on the aforementioned grounds, the prosecution has requested to dismiss the application submitted on behalf of the accused. In the context of the arguments presented by both the parties, it is found from the perusal of the record that the applicant/accused through the application submitted by him has complained about the Ambikapur ACB Office, Police Station or Outpost. The basis for sending the case to the Hon'ble High Court of Chhattisgarh Bilaspur has been taken by expressing the pending dispute in the case on the legal point of the notification not being published under Section 2 of Cr.P.C. and on such basis, the action taken by Ambikapur A.C.B. Office against the applicant and the First Information Report against him have also been mentioned 14 to be illegal, but in the order passed by the Court on 03.11.2023, it is evident that the said point advanced by the applicant / accused has been resolved. In the judicial precedent presented in support of the case on behalf of the prosecution, i.e. CRR No.638/2023 {Narayan Singh Sidar vs. State of Chhattisgarh} vide order dated 18.10.2023, the Hon'ble High Court of Chhattisgarh has not accepted the action taken by Bilaspur Unit Anti Corruption Bureau, Raipur (CG) on the same point raised by the applicant/accused as illegal, and the First Information Report on zero registered by Anti Corruption Bureau, Bilaspur has also been opined as not illegal and the entire State of Chhattisgarh. The establishment of a Police Station in Raipur for the Anti Corruption Bureau has been approved by the State Government through a Gazette notification and in the said order itself, a mention has been made about the Ambikapur unit as well. In such a situation, it is evident that the point raised by the applicant/accused has already been rejected by the Hon'ble High Court of Chhattisgarh and in that context, the point raised by the applicant/accused in the application also loses its force. It appears that the State Government, exercising the powers conferred by the first proviso to Section 17 of the Prevention of Corruption Act, 1988 (No. 49 of 1988) through 15 Notification No. F-1-5/2003/1-6 dated September, 2003 by the Department, Sanypur, has authorized all the Police Inspectors of Anti Corruption Bureau, Chhattisgarh for the purposes of the said section, due to which the point raised regarding the Inspector not having the right to investigate under Section 17 (c) of the P.C. ACt and the action taken in the case of registering the First Information against the applicant/accused being invalid, has no substance. The third point raised on behalf of the applicant/accused is related to the prosecution sanction by the competent authority against the accused related to the case on behalf of the prosecution, but the said point has been resolved by this Court vide order dated 03.11.2023. A photocopy of the said prosecution sanction order dated 06.05.2021 has been submitted, which has been issued by the competent authority. As such, the last point No.04 mentioned in the application was related to the issue of publication or non-publication of the guidelines for sanction of prosecution under Section 29A (b) of the P.C. ACt and the Amendment Act, 2018 in the Official Gazette. But from the perusal of the said provision, it is clear that in respect of Section 29A (b) of the P.C. (Amendment) Act, 2018, there is a provision for the Central 16 Government to make rules by notification in the official Gazette for implementation of the provisions of the P.C. Act and under sub- section 2 (b) of Section 29 (A), there is a provision for sanction of prosecution under sub-section (1) of section 19 of the P.C. Act. It is evident that there is a provision for making guiding principles for the purpose, but it is not mandatory, and it contains a provision for making rules regarding the making of guiding principles, and from the use of the word May therein it is clear that the said provision is not mandatory but of suggestive nature, and as per the argument presented by the defence, even in its absence, the said provision not being mandatory does not appear to pose any obstacle to the prosecution in proceeding with the case against the applicant, nor is there any illegality in the sanction obtained by the prosecution against the applicant. Even after the above situation, on behalf of the prosecution, a copy of the guidelines issued regarding sanction of prosecution against government officers / employees in the cases of Economic Offences Investigation Bureau as per the General Administration Department Memorandum No. F. 11 (32) / 97 / 1-10, dated 28.02.1998 of the Government of the State of Madhya Pradesh has been submitted, in such 17 a situation, the basis and point expressed by the applicant / accused has no force. The applicant/accused, in support of the application, reliance has been placed in the matter of in Lalita Kumari v. State of Uttar Pradesh, but the said judicial precedent related to the Hon'ble Supreme Court is evidently related to the point of making it mandatory to register the First Information Report on giving information of a cognizable offence to the Police Station or on receiving the information and it is evident to be related to facts different from the facts of the present application and case; hence, the said judicial precedent is not found to be beneficial in favour of the applicant/accused. Therefore, in the above circumstances, as there was no question of legal reference presented by the applicant/accused and as there was no situation for the accused to be declared innocent at the present stage, the application filed by the applicant/accused under section 395 read with Section 232 of Cr.P.C. was rejected.” 13. It is an admitted fact that there was no question of legal reference presented by the petitioner and there was no situation for the accused to be declared innocent, as such, the application filed by the applicant/accused under section 395 read with Section 232 of Cr.P.C. was rejected by the trial Court vide order dated 11.01.2024. 18 14. It has been further reflected from the order dated 18.09.2024 that the relief sought for by the petitioner is already granted by this Court vide order dated 28.06.2024 in Cr.M.P. No.1063 of 2021, hence, the trial Court has rejected the application filed by the petitioner. 15. Considering the matter in its entirety as well as appreciating the submissions of the learned counsel for the parties, it is evident that the trial Court has rejected the application filed by the petitioner under Section 395 read with Section 232 of the Cr.P.C by the trial Court on 11.01.2024. The said order has not been challenged by the petitioner in any of the forum, as such, the said order has attained its finality. It further reflected from the record that earlier petition filed by the petitioner being Cr.M.P. No.1063 of 2021 was dismissed by this Court vide order dated 28.06.2024 and liberty was given to the petitioner to raise all objection/plea before the trial Court at appropriate stage. It appears from the order dated 18.09.2024 passed by the trial Court that the petitioner has raised the pleas/objections, which was already decided by the trial Court vide its order dated 11.01.2024, hence, the petitioner is only adopting the diary tactics to delay the proceedings of the trial. Moreover, evidence of some of the prosecution witnesses have been recorded and statements of other witnesses are yet to be recorded, for which the trial is in progress. 19 16. In view of the above, no interference is called for by this Court in its extraordinary power under Article 226 of the Constitution of India for grant of any relief to the petitioner. 17. The petition lacks merit and is, accordingly, dismissed. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Anu