Arun Kumar Aggarwal vs State Of M.P.& Ors

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

2 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.

5 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,

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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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