Shriniwas Tiwari vs The State of Madhya Pradesh

G.S. Solanki, J.—This is the first application filed by the applicant under Section 438 of the Criminal Procedure Code for grant of anticipatory bail.

The applicant apprehends his arrest in connection with Crime No. 153/2015 registered at Police Station Jahangirabad, District Bhopal for the offences punishable under Sections 420, 467, 468, 471 and 120-B of the IPc and Section 13(1)(D) of the Prevention of Corruption Act.

As per prosecution, it is alleged that applicant Shriniwas Tiwari, Ex Speaker of Legislative Assembly, M.P. during his tenure from 1993-2003 had made illegal appointment of his relatives and supporters and thereby he misused his discretionary powers under M.P. Vidhan Sabha Sachivalaya Adhiniyam, 1981 and Secretariat (Recruitment and Service Conditions) Rules, 1990. About 18 persons were illegally appointed by applicant Shriniwas Tiwari (the then Speaker). It is further alleged that co-accused Satyanarayan Sharma was not having prescribed qualification for being appointed as LDC. Despite this fact co-accused Satyanarayan Sharma was appointed on the post of LDC as Temporary Clerk vide order dated 31/12/1993 with the condition that he will pass Hindi Typing within the prescribed period. He worked as LDC for less than 1 year and made assistant to applicant Shriniwas Tiwari where he remained for one month thereafter, sent on deputation at Katni Nagar Palika Nigam under local administration department vide order dated 20/09/1994 from where he again promoted as Assistant of the then Speaker of Secretariat of Legislative Assembly, MP vide order dated 31/01/1995 from where he has been promoted to Section Officer vide order dated 6/07/1995 thereafter, he again promoted to Undersecretary, Secretariat of Legislative Assembly, MP as personal staff of Speaker vide order dated 3/02/1996. Thereafter, he promoted to Undersecretary vide order dated 15/12/1997 from where he sent on deputation in Commercial Tax Department vide order dated 17/09/1998 where he was posted as District Excise Officer and has been absorbed in aforesaid department, from where he has been again sent to the Secretariat of Legislative Assembly, MP on the post of Undersecretary on 25/04/2000 thereafter, he has been promoted to Deputy Secretary of Secretariat of Legislative Assembly, MP on 12/10/01 and then again promoted to Additional Secretary of aforesaid Secretariat on 19/04/2002 and further promoted to Secretary on 13/11/2002. After retirement of applicant Shriniwas Tiwari, the then Speaker, co-accused Satyanarayan Sharma was demoted to post of Additional Secretary on 11/05/2004 and ultimately removed from the service of Secretariat of Legislative Assembly, MP on 20/02/2012. It is further alleged that in aforesaid appointment and promotions of applicant, Rules in regard to deputation as well as reservation were not followed. It is alleged that applicant Shriniwas Tiwari used to pressurize the Government and employees of other Government Departments for making easy way for co-accused Satyanarayan Sharma. During investigation it is found that co-accused Satyanarayan Sharma was appointed as LDC on 31/12/1993 itself and his appointment was approved on 1/01/1994. It is further found that co-accused Satyanarayan Sharma was posted as Revenue Inspector (Class III Officer) from where he could not be absorbed as Undersecretary therefore, he sent to the Commercial Tax Department from where he has been sent on deputation to Secretariat of Legislative Assembly, MP on the post of Undersecretary. His absorption and confirmation on the post of Undersecretary was also illegal and against the Rules. He was again sent to Excise Department and was posted as District Excise Officer and then came on deputation to Secretariat of Legislative Assembly, MP where on the post of deputation itself he was promoted as Deputy Secretary. Ultimately he promoted up to the post of Additional Secretary. All these incidents of postings, deputations and promotions of co-accused Satyanarayan Sharma were made during the tenure of applicant Shriniwas Tiwari, the then Speaker of Legislative Assembly, MP from 1993-2003 and co-accused Satyanarayan Sharma was beneficiary and thereby the applicant and co-accused committed the offences in furtherance of the conspiracy as mentioned hereinabove.

Learned Senior counsel for the applicant has submitted that the applicant has been falsely implicated in this case. The applicant was the Speaker of Legislative Assembly of State of M.P. during the year 1993-2003. He has no direct involvement in the alleged offence. He did not appoint any person illegally. All appointments were made according to the Rules. None of the appointments was wrongly made by the applicant. It is further submitted that the son of the applicant is a sitting MLA of the huge constituency of District Rewa, he was instrumental in raising the issues regarding corruption in the VYAPAM scam against the Chief Minister of State of M.P., therefore, with a revengeful attitude, Secretariat of Legislative Assembly made false report against the applicant and other co-accused persons, which is highly belated. It is further submitted that a number of writ petitions were filed by different petitioners in the form of Public Interest Litigation wherein complainant Secretariat, Legislative Assembly, M.P. took the stand that there is illegality in the appointments in the Secretariat during the period 1993-2003 and all the writ petitions were dismissed by this Court, therefore, now they cannot say that the appointments were made illegally. Learned Senior counsel appearing for the applicant has further submitted that the applicant is 89 years old person, he is 100% blind and is suffering with various ailments. In support of the aforesaid contentions, the applicant has filed medical certificate issued by Dr. P.C. Dwivedi, registered practitioner. Learned Senior Counsel has further submitted that the report has been lodged on the basis of report of the Commission headed by Justice Dwivedi and the case has been registered belatedly after more than 20 years of the first incident. It is further submitted that the then Advocate General had opined that the Secretariat of M.P. Legislative Assembly is an independent authority and Government of M.P. has no control over it, therefore, Justice Dwivedi could not be appointed as enquiry Commissioner under The Commission of Enquiry Act. Counsel has placed reliance on a decision of Apex Court in Joginder Kumar Vs. State of U.P. and others, AIR 1994 SC 1349 : (1994) CriLJ 1981 : (1994) 2 Crimes 106 : (1994) 3 JT 423 : (1994) 2 SCALE 662 : (1994) 4 SCC 260 : (1994) 3 SCR 661 and Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, AIR 2011 SC 312 : (2011) 1 Crimes 109 : (2011) 1 RCR(Criminal) 126 : (2010) 12 SCALE 691 : (2011) 1 SCC 694 : (2011) 1 SCC(Cri) 514 : (2011) AIRSCW 3813 : (2010) AIRSCW 7007 : (2010) 7 Supreme 194 : (2010) 8 Supreme 353 .

It is further submitted that the applicant is ready to co-operate in the investigation and trial. All the documents pertaining to the alleged offence have already been seized. Nothing is required to be recovered from the possession of the applicant. The applicant is a reputed citizen of the locality, in the event of arrest his reputation will be tarnished as well as he will have to face lot of health problems, therefore, he be enlarged on anticipatory bail.

Learned Advocate General and learned counsel appearing on behalf of the complainant have opposed the applicant and submitted that the applicant is involved in the conspiracy with the other co-accused persons. He, by misusing the discretionary power, which was given to him under the rules, made appointments in his personal staff. He sent co-accused persons to co-accused employees, who were initially appointed on the post of Lower Division Clerk that too without having prescribed qualification. They served for a short period of 1 year to the applicant and thereafter the applicant, being the Speaker of M.P. Legislative Assembly pressurized the officials of other departments and sent co-accused Satyanarayan Sharma and other co-accused persons on deputation to other departments with intention that they would be absorbed in the said departments and within the short period of aforesaid absorption more than once they were taken to the Secretariat, M.P. Legislative Assembly whereby ignoring the relevant rules of promotions as well as reservation, they were promoted to the post of Additional Secretary and that too within the span of only 10 years. This has been demonstrated by (Annexure R-1) wherein co-accused Satyanarayan Sharma was initially appointed on 31.12.1993 that too one day before his approval of appointment i.e. on 1.1.1994 and that too without having prescribed qualification having passing the Higher Secondary Examination along with Hindi typing examination from a recognized Board. Though, he was directed to pass typing examination within one year but he never passed the aforesaid examination and within the span of less than one year he was sent on deputation to more than one departments for more than once for a limited period for the purpose of his absorption in the aforesaid department and thereafter he was taken in the Secretariat, M.P. Legislative Assembly and thereafter was promoted upto the post of Additional Secretary that too in the short period of 10 years from 1993-2003. It is further submitted that it is a case wherein custodial interrogation of the applicant is necessary, therefore, the applicant is not entitled to be enlarged on anticipatory and the application is liable to be dismissed. Counsel have placed reliance on a decision of Apex Court in Criminal Appeal No. 811/1997 (State rep. by CBI Vs. Anil Sharma) decided on 3.9.1997.

I have heard the learned counsel for the parties at length and gone through the case diary and other material produced by the counsel for the parties during the course of arguments. It reveals from the case diary that the applicant was the Speaker of M.P. Legislative Assembly during the year 1993-2003. It is true that he was having the discretionary power to appoint the persons in his personal staff but it is well established principle of law that whenever the discretionary power is given to any authority, it should be exercised judiciously. In the light of the aforesaid principle, when the facts of this case are examined, it reveals that the applicant was holding the respectable and responsible post of the Speaker of M.P. Legislative Assembly and he was having the discretionary power for appointing the persons in his personal staff and he was the sole authority for controlling the affairs of the Secretariat of the Legislative Assembly as rightly pointed out by the learned counsel appearing for the applicant that the government of M.P. has no control over the employees of the Secretariat, M.P. Legislative Assembly. It further reveals from the case diary that co-accused like Satyanarayan Sharma, who is alleged to have entered into the conspiracy along with the applicant was appointed on 31.12.1993 that too without having any prescribed qualification in his personal staff, thereafter without passing the hindi typing examination within one year, as per his appointment letter dated 31.12.1993 and without completing his probation period of 2 years being an unconfirmed employee of Secretariat, how he could be sent on deputation more than once to another department of Government like Local Self Administration Department and Commercial Department on the higher post like Revenue Inspector and thereafter on the post of District Excise Officer that too for a limited period of less than on year. All these show that there was some interference caused by the applicant in the form of misusing his power of being the Speaker of Legislative Assembly of State of M.P. with intention that some employees who were initially appointed as Lower Division Clerk would be again taken to the Secretariat of Legislative Assembly and thereafter would be promoted by ignoring the relevant provisions of the rules that too upto the post of Additional Secretary, which is equivalent to Class I officer, within the short period of 10 years specifically when the applicant was the Speaker of the Legislative Assembly, which shows that the applicant has not exercised his discretionary power judiciously. On the contrary he promoted co-accused persons by doing favoritism. It further reveals from the case diary that not only co-accused Satyaranarayan Sharma but other 17 persons were also given the benefit of same kind.

It appears that the applicant had acted like a Sovereign King, who thought that he is over and above the law. In the democracy like ours, one who is on the higher post cannot be permitted to act over and above the prescribed rules and regulations.

As far as question of pressurizing the government officials of the concerned department is concerned, it is true that the orders were passed by the Principal Secretary, Dy. Secretary and Under Secretary of the different departments including the Secretariat of Legislative Assembly and it would not be possible without any manipulation/pressure of the authority like the applicant on them.

As far as observations passed in writ petitions of this Court are concerned, there is nothing in regard to irregularity or criminal conspiracy which is demonstrated during the argument of respondent. The only observation was that Division Bench of this Court has observed that service matter which involve questions of livelihood of the appointees including the questions relating to their status should be tried and decided by the competent Courts when brought before such Courts and Tribunals by the persons aggrieved thereby and not at the instance of strangers in the shape of public interest litigation. As far as stand taken by Secretariat of Legislative Assembly, MP at the time of consideration of aforesaid writ petitions is concerned same would not make any difference because when cognizable offence has been registered against the applicant and during meticulous investigation it was found that applicant and other co-accused persons were involved in conspiracy of committing the offences u/s 420, 467, 468, 471, 120-B of IPC read with sections 13(1)(d), 13(2) of Prevention of Corruption Act, 1988. Nothing has been expressed in regard to the fact that if any manipulation or criminal offence is committed by anyone, it would not be investigated and person will not be prosecuted.

So far as the delay is concerned, it appears that after demitting the office by the applicant from the post of the Speaker, M.P. Legislative Assembly in the year 2003, co-accused Satyanarayan Sharma was demoted in the year 2004 and thereafter number of cases of irregular appointments and favoritism came in the light in the Secretariat and thereafter the FIR was lodged by the employees of the Secretariat.

The contention that the son of the applicant is a sitting MLA and he has raised his voice in regard to involvement of the Chief Minister in the corruption, therefore, the applicant has been falsely implicated, is concerned, as per the applicant himself the government of M.P. has no control over the Secretariat, then how it is possible that under the pressure of the government, the applicant has been falsely implicated.

So far as interrogation with the assistance of Advocate is concerned, I am of the view that it is a case where custodial interrogation of the applicant is necessary and protection under Section 438 of the IPC cannot be given to the applicant because it is not only the case of one employee but as many as 17 other employees were also appointed and promoted to the higher posts and still some useful information or material, which were concealed by the applicant, may be disclosed by the applicant, which is not possible if the applicant is protected and insulated by pre-arrest bail order during the time he is investigated as observed by the Apex Court in State rep. by CBI Vs. Anil Sharma (supra) that very often interrogation in such a condition would reduce to a mere ritual.

So far as danger of being subjected to third degree is concerned, in the aforesaid case the Apex Court has observed that the Court has to presume that responsible Police Officers would conduct themselves in a responsible manner.

So far as age and health of the applicant is concerned, the applicant is facing the old age problems and usually every old person has to face such type of ailments.

Considering the overall facts and circumstances of the case, I am of the considered opinion that it s a case where custodial interrogation of the applicant is necessary, therefore, I do not find it a fit case to enlarge the applicant on anticipatory bail.

Consequently, the application is hereby dismissed.

Certified copy as per rules.