ORDER
Dipak Misra, J.
1. “Awake, Arise, ‘O’ Partha”, Lord Krishna thus commanded Arjun, his chosen ‘Sakha’ and dearest disciple, during the war of Mahabharata to carry on the crusade against the ‘Adharma’. Many a determined and dedicated crusaders have selflessly fought against evil being inspired by their ‘Gums’, enthused by their self-protested ideals and sometimes emboldened by the mandate of the majesty of law which has to rule supreme in every circumstance and on each occasion performing its noble duty of a great leveller. With the aforesaid attitude, tenacity, devotion and consecration respondent Nos. 3 and 4, namely, the Director General, Special Police Establishment and the Superintendent of Police, Special Police Establishment have drawn an FIR contained in ‘Annexure P-26’ to this Writ Petition against the present petitioner, the erstwhile Minister of Housing and Environment, Department of State of Madhya Pradesh for offences punishable under Sections 13(1)(d) and 13(2) read with Section 15 of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the Act’), quashment of which is sought for in this Writ Petition preferred under Article 226 of the Constitution.
It has been submitted in course of hearing by Mr. S.C. Datt, learned senior counsel for the petitioner that it is the honour and the honour alone for which the petitioner has visited this Court for lanceting the uncalled for and unjustified initiation of prosecution and investigation against him. In the backdrop of this submission the question that arises for consideration is whether individual honour would have leverage over the acts done by him in the capacity of a Public trustee in a democratic set up and whether his actions are not to be judged as per the criminal law prevalent in the country. Honour may reign from its own pedestal and one may so proclaim from the pulpit but simultaneously, a public trustee is answerable for every act of his. No one is above law, nor can be allowed to be so. He who holds the power, bears the responsibility. There is no escape. That is the command of law which gives accent on justice. In the case of A.R. Antulay v. R.S. Nayak and Anr., AIR 1988 SC 1531, Sabyasachi Mukharji, J. (as his Lordship then was) registered his views as under:
“Yet we must remind ourselves that purity of public life is one of the cardinal principles which must be upheld as a matter of public policy. Allegations of legal infractions and criminal infractions must be investigated in accordance with law and procedure established under the Constitution. Even if he has been wronged, if he is allowed to be left in doubt that would cause more serious damage to the appellant. Public confidence in public administration should not be eroded any further. One wrong cannot be remedied by another wrong.”
Earlier in the case of Krishna Ballabh Sahay v. Commissioner of Enquiry, AIR 1969 258, Hidayatullah, C.J., speaking for the Court expressed thus :
“It hardly needs any authority to state that the enquiry will be ordered not by the Minister against himself but by some one else. When a Minister goes out of office, its successor may consider any glaring charges and may, if justified, order an inquiry. Otherwise, each Ministry will become a law upto itself and the corrupt conduct of its Ministers will remain beyond scrutiny.”
This being the view of the Apex Court, the petitioner has to justify the quashment on the ground as envisaged in law but not on the ground of individual honour. Honour has to save itself on the foundation established in law.
2. Before I advert to deal with the factual matrix, it is essential to refer to the law laid down by the Apex Court in relation to quashment of an FIR or investigation by the High Court in exercise of power under Article 226 of the Constitution or Section 482 of the Code of Criminal Procedure. It has been succinctly summarised in the case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., AIR 1992 SC 604, in Paragraph 108 which I may profitably reproduce:
“108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we given the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Whether the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of the which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engraft in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceeding and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
Similar view was reiterated in the case of Mrs. Rupan Deol Bajaj and Anr. v. Kanwar Pal Singh Gill and Anr. (AIR 1996 SC 309). Thus, if an FIR or the investigation is sought to be quashed it has to succeed on any one of grounds postulated in the decision of State of Haryana and Ors. (supra). I may hasten to add that their Lordships have stated that the grounds enumerated therein are illustrative and not exhaustive. I may note here that in the instant case, Mr. Datt, learned senior counsel for the petitioner has only referred to the foundation/ground predicted under guideline No. 3 and has not proponed on other aspects. Hence, there is no necessity to search for special features to travel beyond the illustrations. Confining his submission to the aforesaid he has only canvassed that the uncontroverted allegations made in the FIR and the evidence collected so far in support of the same do not disclose the commission of any offence and does not make out a case against the petitioner.
3. Keeping the, aforesaid law and the submission of Mr. Datt, I may proceed to state the factual scenario as it emerges from the material brought before this Court. The petitioner was the Minister of the Department of Housing and Environment and took charge on 20-7-96. By that time, the previous Minister, Shri B.R. Yadav had passed an order on 11-8-95 giving certain directions relating to certain land belonging to the Indore Development Authority. The order has a history. Initially an area of 22.56 acres of land belonging to one Smt. Sohan Kumari Shankhla and Shri Ashok Kumar Jain situated in village Bhumori Dube was sought to be acquired under the provisions of M.P. Town Improvement Trust, 1960. Smt. Shankhla made an application on 18-5-66 to the Chairman of the then Indore Improvement Trust for release of 5 acres of land out of the aforesaid land for the purpose of construction of a hospital, nursing home and a laboratory for her son Vijay Kumar Jain. The Chairman of the Indore Improvement Trust by his reply dated 3-8-66 accepted the request of the land owner on certain terms and conditions which were accepted by the land owner who executed an agreement on 20-8-66. In the said agreement it was specifically mentioned that in the event she contravened any of the conditions imposed by the Trust, the Trust would be entitled to take possession of the said land and construction thereon without payment of any compensation. It was accepted by her that she would commence the construction of the hospital and other related work within six months from the date of approval of the plans by the Trust and complete it within two years. In a letter dated 14-6-72 she expressed her incapability to construct a hospital and requested for allotment of the said land to the members of her family for commercial use. That request was negatived by the Indore Improvement Trust by letter dated 17-7-72 and eventually the land was acquired by notification dated 9-11-73 issued under Section 71 (1) of M.P. Town Improvement Trust Act by virtue of which the land vested in the Trust being free from all encumbrances. Actual physical possession of the land was taken on 4-4-1975. In the meantime, Indore Development Authority (hereinafter referred to as ‘Authority’) was constituted under the provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (in short the ‘Adhiniyam’) and all assets and liabilities of the Trust vested with the Authority. It is relevant to state here that challenging the aforesaid action a civil suit was filed for grant of injunction before the competent Court at Indore but the prayer for injunction was rejected. Appeal preferred by Smt. Sohan Kumari Shankhla did not meet with success. Thereafter, a writ petition forming the subject-matter of W.P. No. 1181/88 was filed in the High Court at Indore Bench. During the pendency of the said writ petition Mr. Ashok Kumar Jain S/o. Smt. Sohan Kumari Shankhla moved an application on 6-3-95 before the then Minister Shri B.R. Yadav for release of the said land from the Scheme No. 54. Shri Yadav called for comments from the Indore Development Authority. The Chief Executive Officer of the Authority after narrating the events in a chronological manner clearly stated that the land in Scheme No. 54 had been developed and the plots had been allotted and it was not possible to release the land in question from the scheme. Another application was filed on 27-4-95 indicating that there was no document cancelling the earlier agreement dated 20-6-66. Shri Yadav wanted that he should be apprised of the facts and accordingly the Additional Secretary, Shri R.D. Ahirwar apprised him on 18-7-95 that it was a disputed matter being subjudice and, therefore, it was not proper to pass any order in the matter. Thereafter on 20-7-95 Shri Yadav directed that excluding the lands which are already allotted to Srikrishna Tea Association, the land available in the scheme or the other land available in the adjourning scheme be alloted to the applicant on a no profit no loss basis and the matter may be disposed of by entering into agreement with the by the applicant by the Indore Development Authority. In view of this backdrop, letter No. 5019/M/32/95 dated 11-8-95 was communicated by the Additional Secretary to the Chief Executive Officer of Indore Development Authority. The relevant portion of the said letter has been brought on record as ‘Annexure P-2’, which reads as follows :–
^^iz’uk/khu lkr ,dM+ Hkwfe ls ikap ,dM+ Hkwfe
gkfLiVy o vU; lacaf/kr mi;ksx ds fy;s ;kstuk ls eqä dh xbZ FkhA ftl ckcr~ Hkwfe
Lokeh ,oa lq/kkj U;kl ds e/; fyf[kr vuqca/k fnukad 20&8&66 dks gqvk FkkA
bl fyf[kr vuqca/k ds fujLrh ckcr~ dksbZ fujLrhdj.k ys[k fu”ikfnr gksuk ugha
ekuk tkrk gSA ;g vuqca/k ys[k izkf/kdkjh ij cU/kudkjd gSA fcuk fof/kor~ fujLrh
ds bl Hkwfe dk fu/kkZfjr mi;ksx okf.kfT;d gSA ftlesa gkfLiVy ugha cuk;k tk ldrk]
,slh n’kk esa bl ikap ,dM+ Hkwfe dk ekLVj Iyku vuqlkj Lohdk;Z mi;ksx gh Hkwfe
Lokeh dj ldrs gSaA vr% fodkl ;kstuk ds vuq:i vkosnd dh Hkwfe Hkh ;kstuk ls eqä
dh tkuk u;k;ksfpr gksxkA**
^^;g izdj.k o”kksZa ls yfEcr gSA vr% blds
fudkj.k dk ;g fodYi fodYi izrhr gksrk gS fd bUnkSj fodkl izkf/kdj.k esa vc
v/;{k@lnL;ksa dh fu;qfä gks xbZ gS] vr% ;g mfpr gksxk fd muds le{k ;g izdj.k
izLrqr fd;k tk;] ;fn vkosnd@Hkwfe Lokeh bl ckr ds fy, rS;kj gksa fd mudh lkr ,dM+
Hkwfe ls ftruh Hkwfe vkt rd pk; O;kikjh ,lksfl,’ku vkSj Fkksd fdjkuk O;kikjh ,lksfl,’ku
ds lnL;ksa dks vkcafVr dj nh xbZ gS] mls NksM+dj lkjs fookn lekIr dj ysa o ‘ks”k
cph Hkwfe ls ysa vkSj vkoaVu ls izHkkfor Hkwfe ds {ks=Qy ds cjkcj {ks=Qy dh
Hkwfe blh ;kstuk esa vkSj ;fn blesa miyC/k u gksa rks] mlds vkl&ikl dh ;kstuk
esa u ykHk u gkfu ds vk/kkj ij ys ysa] rks rnuqlkj bUnkSj fodkl izkf/kdkjh
vkosnd@Hkwfe Lokeh ls bl izdkj fyf[kr vuqc/k djds o rnuqlkj le>kSrk djds bl
izdj.k o fookn dk fujkdj.k djsaA**
After issuance of the aforesaid order, Shri Ashok Kumar Jain filed an application in the pending Writ Petition No. 1181/88. The Court by order dated. 13-5-96 directed the Authority to take a decision in pursuance of the letter dated 11-8-95 in accordance with law within a period of two months from the date of receipt of the order passed by the Court. After disposal of the case by the High Court the land owner by his letter dated 17- 7-96 requested for taking immediate steps to transfer 3.18 acres of land in favour of their nominees and to allot the rest of the land i.e., 4.13 acres to be allotted to them. However, in the meantime, the present petitioner who had assumed the charge of the Minister by then by letter dated 16-6-96 passed an order staying release of the land in question. In the meantime, the land owners filed Writ Petition No. 1437/96 and Contempt Petition No. 47/96. The Authority brought this aspect to the notice of the State Government, and eventually Shri Ahirwar proposed to vacate the said order passed by the Government. The petitioner did not agree to vacate the stay and directed that the High Court be apprised of the facts and requested for extension of lime to enable the Government to take a decision in the matter. However, on 20-2-97 the petitioner vacated the order of stay and issued certain directions. The said order was communicated to the Authority by letter dated 24-2-97. The note-sheet giving rise to the ultimate order has been brought on record as ‘Annexure P-12’ and the communication as ‘Annexure P-13’. The relevant portion of the said order reads as follows :
^^bUnkSj fodkl izkf/kdj.k ,oa Jh v’kksd dqekj
tSu i{kdkjksa dh lquokbZ djus ij izdj.k dk lexz :i ls ijh{k.k djus ds i’pkr~ i=
Øekad 2@LVsuks 232296] fnukad 13&9&96 ds }kjk fn;s x;s LFkxu dks fujLr
fd;k tkrk gSA lkFk gh bUnkSj fodkl izkf/kdj.k dks ;g Hkh funsZ’k fn;s tkrs gS fd
‘kklu ds i= Øekad 5019@,e@96@32@95] fnukad 11 vxLr] 1995 ,oa la’kks/ku i=
fnukad 30@9@95 ds }kjk fn;s x;s lq>ko@funsZ’k ds ifjizs{; es izkf/kdj.k }kjk
i{kdkjksa ds lkFk fnukad 12 tqykbZ] 1998 ds }kjk fd;s x;s i=kpkj ,oa i{kdkjksa }kjk
izLrqr i= fnukad 17&7&96 dks /;ku esa j[krs gq, gh vius Lrj ls fnukad
20@2@97 rd fu;ekuqlkj ikyu fd;k tkdj ekuuh; mPp U;k;ky; ,oa ‘kklu dks lwfpr fd;k
tk;A**
After the receipt of the said letter the Authority informed the petitioner that decision has to be taken in the Board Meeting scheduled to be held on 12-3-97. On receipt of this letter Shri Ahirwar, Additional Secretary put up a note that there should not be any delay in compliance after the Government’s clear order and this case need not be placed before any Samiti or Board Meeting. The aforesaid proposal was put up before the present petitioner who accepted the proposal and accordingly the letter dated 5-3-97 was issued. The relevant portion of the said letter reads as follows :
^^ekuuh; mPp U;k;ky; dh bUnkSj [k.MihB ds le{k
izLrqr pkfpdk Ø- 1181@88 1437@96 ,oa 47@96 ds ifjizs{; es jkT; ‘kklu }kjk
fnukad 24&2&97 dks bUnkSj fodkl izkf/kdj.k dks mfpr funsZ’k fn;s tk pqds
gSaA iqu% /kkjk 52 /kkjk 72 ,oa /kkjk 73 ^^e/;izns’k uxj rFkk xzke fuos’k vf/kfu;e]
1973** ds vUrxZr funsZ’k fn;s tkrs gSa vkSj Li”V fd;k tkrk gS fd bl izdj.k
dks izkf/kdj.k dh fdlh lfefr vFkok cksMZ ds le{k u j[kk tkdj ‘kklu ds
funsZ’k@vkns’k fnukad 11&8&95] 30&9&95 ,oa 24&2&97 ds
vuqlkj iz’uk/khu Hkwfe ds laca/k esa bUnkSj fodkl izkf/kdj.k }kjk fnukad
12&7&96 ds i= ds }kjk i{kdkjksa dks fn;s x;s izLrko ¼vkWQj½ o
i{kdkjksa }kjk muds i= fnukad 17&7&96 ds }kjk izLrqr dh x;h lgefr ds vk/kkj
ij gh Hkwfe eqfä@Hkwfe vkoaVu ds vkns’k 8&3&97 rd tkjh fd;s tk;s vkSj
ekuuh; mPp U;k;ky; dks rFkk ‘kklu dks lwfpr fd;k tk;A**
After the aforesaid order, there was further correspondence by the Authority indicating that there was no provisions for allotment of developed land by the Authority under the prevalent law and guidance was sought from the Government. On the basis of the communication made by the Authority the Additional Secretary put up a note on 20-3-97 indicating that unnecessary correspondence was made by the Authority. Eventually the petitioner approved the note on 31-3-97. However, before that communication was sent on 20-3-97 to allot the plots comprising an area of 7.50 acres to the applicants, his family members and his nominated persons. When the matter stood thus, the petitioner by letter dated 26-9-97 cancelled the order dated 20-3-97 mentioning that it was not in public interest. A copy of this order was communicated to the landlord and a copy thereof was sent to the Legal Advisor, Lokayukt Office. It is relevant to state here by the time this order was passed, the Lokayukt, on the basis of a complaint made, had proceeded to cause an inquiry into the matter. It is alleged in the Writ Petition that because of the aforesaid situation an FIR was drawn up and investigation has commenced. It is highlighted in the Writ Petition that the petitioner had passed orders as he understood the factual aspects but after he came to know about the real facts he passed the order dated 17-9-97 by recalling the earlier order. It is putforth that the FIR even if accepted in its entirety does not disclose any offence and, therefore, the said FIR warrants interference by this Court at this stage and the quashment of the prosecution would be in the interest of justice. It is also pleaded in the Writ Petition that the petitioner had passed the orders on the basis of the concurrence given by Secretary, Rakesh Sahni who was responsible for ensuring factual and legal correctness of the proposal. It is also stated therein that the petitioner had to pass the order contained in ‘Annexure P-10’ dated 24-2-97 as a contempt proceedings was initiated by the land holder in the High Court and the said Contempt Petition forming the subject-matter of MCC No. 47/96 was only dismissed on 3-6-97 on the basis the orders passed on 24-2-97 and 5-3-97. It is also highlighted that in Writ Petition No. 1437/97 the High Court also took note of the order passed on 24-2-97 and 5-3-97 and observed that nothing survived in the petition as the respondents agreed to implement the directions already given therein. In pursuance of the aforesaid orders the Indore Development Authority by letter dated 14-3-97 sought guidance from the State Government on two aspects, namely, whether developed plots equivalent to an area of 7.50 acres be allotted or only 50% i.e., 3.75 acres of developed land be alloted and whether the plots be allotted to the family members and legal representatives. This gave rise to the order passed on 31-3-97. It has also averred in the Writ Petition that a public interest litigation forming the subject-matter of Writ Petition No. 511/97 came to be filed before the Indore Bench challenging the letter dated 23-3-97 and the High Court by order dated 31-3-97 directed for maintenance of status-quo by all parties. The contents of the public interest litigation came to the knowledge of the petitioner in August, 1997 whereafter he reviewed the whole matter and came to realise that Shri Ahirwar had unauthorisedly issued the letter dated 20-3-97 and taken ex-post facto approval on 31-3-97. But he could not cancel the earlier order in view of the order of status-quo in existence. The order of status-quo was vacated on 21-8-97. These petitioner who was on foreign tour, after his return passed the order on 17-9-97 which was communicated on 26-9-97. In this background it is submitted that by no stretch of imagination it can be held that the allegations in the FIR or the material on record constituted the alleged offences or any offence for that matter.
4. In pursuance of the notice to show cause, Mr. Shroti, learned counsel for the respondent Nos. 3 and 4 has entered appearance and produced the materials collected during investigation. At the request of this Court he has submitted the FIR duly translated in English. The Authority has also entered appearance and filed its counter affidavit indicating chronology of events. A statement was made on behalf of the State before this Court on 24-6-98 by the learned Advocate General, that the State Government has been unnecessarily impleaded as a respondent.
5. Mr. Datt, learned senior counsel for the petitioner assailing the initiation of criminal prosecution has contended that the allegation in the FIR and the materials on record do not constitute the alleged offences under Sections 13(1)(d) and 15 of the Act as well as under Section 120B of the Indian Penal Code nor do they make out any offence against the petitioner. In support of his submission he has referred to the FIR in extenso and proponed that accepting the FIR on the face value the basic ingredient to constitute the alleged offences are absent. It is also his submission that the concept of attempt as has been envisaged under Section 15 of the Act is not attracted by any stretch of imagination. It is further contended by him as the order passed by the petitioner has not been given effect to and cancelled before it was carried out, and he has rectified the mistake and passed different order, question of obtainment of pecuniary advantage for himself or for any other person does not arise. He has further built up his argument by contending that the attempt in its connotative sweep would engulf the intention of criminality and in absence of the same no offence is conceivable. To substantiate his contention he has placed reliance on the decisions rendered in the cases of Major S.K. Kale v. State of Maharashtra, AIR 1977 SC 822; S.P. Bhatnagar and Anr. v. State of Maharashtra, 1979 Cr.LJ 566; State of U.P. and Anr. v. R.K. Shrivastava and Ors., AIR 1989 SC 2222; Abhayanand Mishra v. State of Bihar, AIR 1961 SC 1968; State of Maharashtra v. Mohd. Yakub and Ors., AIR 1980 SC 1111 and Delhi Development Authority v. Skipper Construction and Anr., (1996) 1 SCC 272. He has also pyramided his submission by referring to Sections 81 and 82 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 and judgment delivered by the Division Bench at Indore in Contempt Petition No. 69/98 on 24-6-98 to highlight that this Court had given the stamp of approval by holding that the State Government has the authority to modify the scheme under the aforesaid ‘Adhiniyam’ and release of land would come within the said power and, therefore, the act of the petitioner cannot make him liable for prosecution and hence the FIR as well as consequential investigation thereof incur the liability of quashment.
6. Resisting the aforesaid submission Mr. Shroti, learned counsel for the respondent Nos. 3 and 4, has submitted that the FIR disclosed a prima facie case against the petitioner in pursuance of which the investigation has been launched and it is almost complete. Apart from referring to the FIR he has also referred to the statements of some witnesses namely, Shri Rakesh Sahni, the then Principal Secretary, Shri Sujit Kumar, Deputy Secretary and Shri Dinesh Kumar Shrivastava, Chief Executive Officer of the Indore Development Authority, He has also putforth that other witnesses have implicated the petitioner. It is his submission that the materials on record do disclose the alleged offences against the petitioner. To substantiate his submission he has commended this Court to the decisions rendered in the cases of Smt. Rajbala and Anr. v. Deputy Director of Education and Anr., AIR 1993 SC 249 and Union of India and Ors. v. B.R. Bajaj and Anr., AIR 1994 SC 1256.
7. Mr. S.L. Saxena, learned Advocate General for the State has fairly submitted that the State has been unnecessarily impleaded. However, at the request of the Court he has made his submissions with regard to concept of ‘attempt’ in the light of Section 15 of the Act. Submission of Mr. Saxena is that Section 13(1)(d) and Section 15 should be read conjointly to understand the meaning and purport of the word ‘attempt’ as has been used by the legislature. It is canvassed by him that an offence as enjoined under Section 15 of the Act is not complete unless the penultimate act is done and that too in quite proximate. He has referred to the decisions rendered in the cases of Malkiat Singh and Anr. v. State of Punjab, AIR 1970 SC 713; Mohd. Yakub (supra); Kartar Singh v. State of Punjab, AIR 1961 SC 1787 and Hope v. Brown, (1954) 1 All. ER 330. He has referred to Halsbury’s Laws of England Vol. 11 Para 64. He has also referred to ‘Words and Phrases’ Vol. 4A.
8. Mr. Bagdiya, learned counsel for the Indore Development Authority while referring the counter affidavit for the purpose of chronology has also submitted that the Authority had initially refused to release the land in favour of the owners but it is bound by the decision of the Government. It is his further submission that the release in favour of the owners and their nominees is absolutely unjustified and unwarranted and not in public interest.
9. To appreciate the rival submission raised at the Bar i.e., whether the FIR and materials collected so far indicates any cognizable offence against the petitioner, I may refer to the relevant portion of the FIR, the English translation of which has been filed today. It read as under :
“The alleged agreement dated 20-8-66 for release of 5 acres of land for construction of Nursing Home (Hospital) stood cancelled when Lt. Smt. Sohan Kumari expressed her inability to construct the hospital in terms of the said agreement and in any case, the said agreement extinguished when the entire land vested in the Trust and the main basis of the release of land in such a situation. This fact is also important that most of the land was developed by the Authority as per IDA’s letter dated 1-4-95. Thus, it was directed to give developed land in place of undeveloped land. The State Government is empowered to give direction under Section 52 of the “Nivesh Adhiniyam” in public interest only. Shri Yadav’s direction was not in the public interest and it was mentioned in the order also. When IDA did not take any action on State Government’s letter dated 11-8-95 Shri Ashok Kumar Jain filed an application in the pending Writ Petition No. 1181/88 in Indore Bench of High Court. The High Court, therefore, passed the order on 13-5-96 itself which says : Clearly the High Court directed to take a decision in accordance with law but not to comply the Government letter dated 11-8-95 blindly. The Law Officer of IDA had already addressed a letter dated 12-7-96 to Ashok Kumar Jain stating the available plots in Scheme No. 54 and asked for their consent for settlement of dispute as per Government order dated 11-8-95 issued in pursuance of the order passed by Shri B.R. Yadav. The said applicants gave their consent in letter dated 15-7-96.
The applicant requested in a letter dated 17-7-96 that immediate steps be taken to transfer 3.18 acres of land, mentioned in IDA letter dated 12-7-96, in their favour, or their family members or in favour of their nominees and with regard to rest of 4.32 acres of land, a list of those plots in Scheme No. 54 be furnished which have not been allotted to anyone so that they can be allotted to them. Shri Ashok Kumar Jain made the above proposal mischievously with dubious intentions.
The motive behind the said demand for release in favour of their nominees was to evade the provisions of Urban Land (Ceiling and Regulation) Act, 1976 under which the maximum permissible limit for the city of Indore was only 1500 Sq. Mts. apart from that it is an undisputed fact that after the development of land the actual area for allotment in the form of plots is reduced almost to half because half of the land has to be utilised for providing civic aminities, like streets, drainage, park and playgrounds etc.. In view of these facts the release 7.50 acres of developed land would amount to 15 acres and the illegal benefits to Shri Ashok Kumar Jain is clear in itself. Shri Ashok Kumar Jain filed a Contempt Petition No. 47/96 in Hon’ble High Court against Shri R.D. Ahirwar. Shri Ahirwar proposed to vacate the Government stay order to the Minister Shri Rajendra Kumar Singh. Shri Singh did not agree to vacate the stay and directed that the High Court be appraised of all the facts and requested for extension of time to enable the Government to take decision in the matter. However, on 20-2-97 the Minister Shri Rajendra Kumar Singh heard the parties and gave direction contrary to his previous correct view– “The Government stayed temporarily the execution of order dated 11-8- 95 till the hearing of parties. Now the hearing of parties is over. Therefore, keeping in view the Hon’ble High Court’s direction the stay order of Government dated 13-9-96 is cancelled. It is also directed to Indore Development Authority that the appropriate decision shall be taken keeping in view the Government’s directions/suggestions dated 11-8-95, amended letter 30-9-95 and parties consent dated 17-7-96 on IDA’s letter dated 12-7-96 and report compliance to Hon’ble High Court and the Government. The case should be disposed of by 28-2-97”. The above direction of the Minister was conveyed to the Chief Executive Officer, Indore Development Authority in a letter No. 1546/32/97 dated 24-2-97. In compliance of this the Authority informed by a letter dated 26-2-97 that the decision has to be taken in the Board Meeting scheduled for 12-3-97. On this, Additional Secretary, Mr. Ahirwar put up a note that there should not be any delay in compliance after the Government’s clear order and this case need not be placed before any Samiti or Board Meeting. Only the Government order/direction should be complied with. The above proposal was put up before the Environment Minister, Mr. Rajendra Kumar Singh by Shri Rakesh Sahni, Secretary, Environment Department and a letter No. 1883/32/97 dated 5-3-97 was sent to the Authority mentioning that this case need not be placed before any Samiti or Board meeting but according to the order of the Government the release/allotment order be issued by 8-3-97. The Authority in its letter No. 587 dated 14-3-97 wrote to the Secretary, Environment that the applicant’s land survey Nos. 257 and 259 of village Bamhori Dube falling in scheme No. 54 of the Authority was undeveloped in the beginning. Whenever, land is developed and development takes on undeveloped land then 50% of area is available for plots after making provisions for roads, park, parking, and other aminities. It is also written that there is no provision for allotment of undeveloped land by the Authority under the prevailing laws (Vyayan Adhiniyam, 1957) in IDA. It is also written that the Authority can allot any land/plot on lease. Along with this guidance was sought from the government, whether the applicant’s be allotted fully developed equal to 7.50 acres land as per the Government’s direction on a no profit no loss basis or plots equal to 3.75 acres of fully developed area on the above basis and also whether the plots can be allotted to applicant’s relatives or persons nominated by them.
On this letter Shri R.D. Ahirwar put up a note on 20-3-97 saying that unnecessary correspondence shows the deliberate delay in the case. The directions given earlier should be complied with by the Authority. This file was put up before the Minister Shri Rajendra Kumar Singh through Shri Rakesh Sahni, Secretary. It was approved by him on 31-3-97. Before that Shri Ahirwar directed the Authority in a letter dated 20-3-97 to allot the plots comprising an area of 7.5 acres to applicant, his family members and his nominated persons.
The present value of the plots selected by Shri Ashok Kumar Jain and Ors., according to the assessment of Indore Development Authority is approximately Rs. 13,23,80,282/- (Rupees Thirteen Crores Twenty Three Lakhs Eighty Thousand Two Hundred Eighty Two Only). @ 4,360/- per Sq. Mtr. for 7.50 acres. According to the information furnished by the Deputy Registrar Indore, on 10-10-97 some plots have more commercial value being located on Meghdut Garden Road closed to A.B. Road, their price may be 15% more i.e. Rs. 61,94,688/- more. Therefore, the minimum value of the above plots is Rs. 13,85,74,970/- (Thirteen Crores Eighty Five Lakhs Seventy Four Thousand Nine Hundred and Seventy only). These plots were proposed to be transferred on no profit no loss basis @ Rs. 32/- per square feet as development charges and Rs. 2/- per square feet as compensation. Thus, @ Rs. 34/- per square feet, the value of these plots is only Rs. 1,11,07,800/- (Rupees One Crore Eleven Lakhs Seven Thousand and Eight Hundred only). The Government directed to give the plots at this low rate. Environment Department, M.P. Government vide its order No. 6672/97/32 dated 26-9-97 cancelled the earlier order No. 2364/32/97 dated 20-3-97 mentioning that it is not in a public interest. The reality is that the order dated 26-9-97 is issued in as a defence against any action by the enquiry of Lokayukt Organisation. The order dated 24 February, 1997 and 5-3-97 are not amended in this letter.”
I may now profitably refer to the relevant portion of the statements of the witnesses. Shri Rakesh Sahni in his statement has stated so :
^^uksV’khV i`- 44]45 ij fnukad
20&2&1997 dks Jh vkj-Mh vfgjokj] rRdkyhu vfrfjä lfpo }kjk] vafdr Vhi
oLrqr% izdj.k esa i{kdkjksa dh lquokbZ dj ea=hth }kjk fn;s x;s vkns’k dk
vfHkys[k gSA esjs le{k ekuuh; ea=hth ds vuqeksnukFkZ dk;Zokgh Vhi izLrqr gksus
ij eSaus fnukad 21&2&1997 dks gLrk{kj dj ekuuh; i;kZoj.k ea=h Jh jktsUnz
flagth dh vksj uLrh vxzsf”kr dj nh FkhA uksV’khV i`- 45 ij fnukad
21&2&1997 dks esjs gLrk{kj gSaA ekuuh; ea=h Jh jktsUnz dqekj flag }kjk
fnukad 24&2&1997 dks gLrk{kj dj Jh vkj-Mh- vfgjokj }kjk fnukad
20&2&97 dks izLrqr dk;Zokgh Vhi dks vqueksfnr fd;k x;k] uksV’khV i`- 45
ij ekuuh; ea=h Jh jktsUnz dqekj flag ds gLrk{kj gSaA fnukad 20&2&97 dks
Jh vfgjokj }kjk vafdr Vhi esa ekuuh; ea=h Jh jktsUnz flag }kjk i{kdkjksa dh
lquokbZ ds mijkUr fn;s x;s funsZ’kksa dk fooj.k fn;k x;k gSA pwafd funsZ’k
vkns’k ds Lo:i esa lquokbZ ds i’pkr~ fn;s x;s blfy, esjs }kjk Jh vfgjokj dh Vhi
dks vxzsf”kr djrs le; fdlh izdkj dk ifjorZu vFkok ifjo)Zu lq>kuk mfpr
ugha le>k] blfy, eSaus Jh vfgjokj }kjk vafdr lquokbZ dk;Zokgh ;k ea=hth ds
funsZ’kksa dks vuqeksnukFkZ vxzsf”kr dj fn;kA ekuuh; ea=h Jh jktsUnz flag }kjk
lquokbZ djds U;k;ky; tSls gh vkns’k gsrq fu.kZ; fy;k x;k Fkk] blfy, iqufoZpkj dh
ckr esjs }kjk ugha fy[kh x;hA ;fn ekuuh; ea=h th }kjk i{kdkjksa dks ekSf[kd :i
ls lquus ds i’pkr~ fu.kZ; ysdj vkns’k ugha fn, tkrs rks foHkkxh; lfpo gksus dh
gSfl;r ls eSa uLrh ij iqufoZpkj gsrq viuh Vhi fy[krkA**
————–Jh vkj- Mh- vfjokj }kjk fnukad
20&3&97 dh Vhi esa vafdr fcUnqvksa ij esjs }kjk dksbZ vkifÙk blfy, ugha
mBk;h x;h Fkh] D;ksafd ;g Vhi ekuuh; ea=h i;kZoj.k foHkkx Jh jktsUnz dqekj flag
}kjk i{kdkjksa dh lquokbZ fnukad 20&2&97 ds i’pkr~ tkjh vkns’k ds ifjizs{;
esa izkf/kdj.k }kjk mBk;s x;s iz’uksa vkSj iwoZ fopkj ds izdk’k esa gh Jh
vfgjokj dh Vhi ifjyf{kr gksrh gSA bl laca/k esa tks Hkh fopkj vko’;d Fkk] og
ekuuh; ea=h i;kZoj.k Jh jktsUnz dqekj flag th ds Lrj ij gh gksuk Fkk] vkSj
rnuqlkj ekuuh; Jh jktsUnz flag th ds }kjk vuqekfnr dj vkns’k Hkh fn;s x;sA**
The relevant portion of statement of Shri Sunil Kumar reads as under :–
^^————- vkokl ,oa i;kZoj.k foHkkx dh
uLrh Jh ,-ds- tSu vkfn dh Hkwfe bUnkSj fodkl izkf/kdj.k dh ;kstuk Ø- 54 ls eqä
djus ckcr~ ls lacaf/kr uksV’khV ds i`-Ø- 7 ij fnukad 18&9&97 dks
mi&lfpo dh gSfl;r ls eSaus uLrh dks vxzsf”kr djrs gq, gLrk{kj fd;s gSaA
fnukad 18&9&97 dks mä uLrh esjs ikl Jh ih-,l- jktiwr voj lfpo] ds
fnukad 18&9&97 dks vafdr uksV bl vk’; dk ¼dafMdk&5½ fd ^^izkf/kdj.k
ds mijksä i= fnukad 14&3&97 }kjk ekaxk x;k ekxZn’kZu foHkkx ds i=
fnukad 20&3&97 }kjk fn;k x;kA tks ekxZn’kZu fn;k x;k mlesa izFke n’kZu
esa gh ;g Li”V gksrk gS] fd vkosnd@Hkwfe Lokehx.k dks vf/kdre ykHk gks bl
ckr ij Hkh /;ku dsafnzr j[kk x;k gS] ijks{k :i ls ;g Hkh dgk tk ldrk gS fd tks
ekxZn’kZu foHkkxh; i= fnukad 20&3&97 }kjk fn;k x;k gS] og bUnkSj fodkl
izkf/kdj.k ¼’kklu½ ds fy;s vR;f/kd gkfu igqapkus okyk gSA**
Shri Dinesh Shrivastava has implicated the petitioner in the following manner :–
^^———– fnukad 6&12&96 dks
rRdkyhu ea=h Jh jktsUnz dqekj flag] okf.kT; m|ksx ,oa i;kZoj.k us eq>s
nwjHkk”k ij funsZf’kr fd;k Fkk fd Jh vkj-Mh- vfgjokj ds fo:) ekuuh; mPp
U;k;ky; dh bUnkSj [k.MihB esa Jh v’kksd tSu cxSjg ds izdj.k ls yafcr ekugkfu ;kfpdk
vkfn ds laca/k esa jh jksfgr vk;kZ] ,McksdsV ls ppkZ djus ds fy, eSa bUnkSj pyk
tkÅa] D;ksafd Jh jksfgr vk;kZ dy bUnkSj esa jgsaxsA oSls Jh jksfgr vk;kZ]
tcyiqj esa jgrs gSaA eSaus ea=h Jh jktsUnz dqekj th ls dgk fd ekugkfu dk izdj.k
lh/ks&Jh vfgjokj ls lacaf/kr gS] blfy, eSa tokc QkbZy ugha dj ldwaxkA blds
lkFk gh eSa vU; fdlh izdj.k esa Hkh izHkkjh vf/kdkjh ugha gwaA Jh jksfgr vk;kZ]
,MoksdsV dks Hkh ‘kklu us ‘kklu dh vksj ls izfrj{k.k gsrq vHkh ¼ml fnukad rd
odhy fu;qä ugha fd;k gS] vr% eq>s bUnkSj ugha Hkstk tkosA lkFk gh ;g Hkh
fuosnu fd;k fd izdj.k dy] vFkkZr~ fnukad 7&12&96 ds fy, lquokbZ gsrq
fu;r Hkh ugha gSA bu rF;ksa dks ekuuh; ea=h Jh jktsUnz dqekj th dh tkudkjh esa
ykus ds ckn Hkh mUgksaus eq>s bUnkSj tkus ds fy, funsZ’k fn,A
Jh vkj- Mh- vfgjokj] rRdkyhu vfrfjä lfpo] dh
Vhi fnukad 20&3&97 ¼uksV’khV i`-Ø- 55) dk vuqeksnu ekuuh; ea=h Jh
jktsUnz flag th }kjk fnukad 31&3&97 dks fd;k x;k FkkA ¼uksV’khV i`-Ø-
55½ ;g uLrh ,e- 96@32@95 esjs ikl fnukad 4&4&97 dks ykSV dj vk;h FkhA
bl dkj.k 20&3&97 ds izLrko ds vuqlkj ba-fo-izk- dks fy[kk tkus okyk i=
fnukad 4&4&97 ds ckn gh fy[kk tk lduk laHko Fkk] blfy, eSaus mlh fnu
vuqHkkx@’kk[kk esa inLFk fyfid Jh iVsy dks fnukad 20&3&97 dks Jh vkj-Mh-
vfgjokj }kjk izLrqr rFkk ekuuh; ea=h Jh jktsUnz dqekj flag ds }kjk vuqeksfnr fd,
tkus ds vuqlkj izk:i i= rS;kj djus dk funsZ’k fnukad 4&4&97 dks fn;k
FkkA**
The seminal question that falls for consideration is whether the allegations, as stated above, disclose any offence. As submitted by Mr. Datt, learned counsel for the petitioner, no pecuniary advantage has been obtained by the petitioner for himself or for any other third party. It is also submitted by him that there has been no intention on the part of the petitioner. At this juncture, it is worthwhile to refer to Sections 13(1)(d) and 15 of the Act, which read as under:–
“13. Criminal misconduct by a public servant.– (1) A public servant is said to commit the offence of criminal misconduct–
(a) If he–
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or 15. Punishment for attempt.-- Whoever attempts to commit an offence referred to in Clause (c) or Clause (d) or Sub-section (1) of Section 13 shall be punishable with imprisonment for a term which may extend to three years and with fine."
Submission of Mr. Datt, is that the factual matrix does not in any way indicate that the petitioner has obtained any benefits for himself or any other person. As far as attempt is concerned, it is his submission that an attempt to commit an offence can only take place if there has been preparation and intention to commit such an offence. It has been vehemently urged by him that there is no material on record that the petitioner had any dishonest intention in passing the relevant orders. It is also submitted by him that the allegation of attempt collapses inasmuch as by letter dated 26-9-97, all other previous orders have been withdrawn. As far as intention is concerned, it is a state of mind. It is not always a perceptible fact in the world of phenomena and sometimes has to be gathered from the surrounding circumstances. In this context, I may usefully refer to the observation of the Apex Court in the case of Mrs. Rupan Deol Bajaj and Anr. v. Kanwar Pal Singh Gill and Anr., AIR 1996 SC 309, which reads as under :
“It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, it is also equally true that those ingredients being states of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of a given case.”
10. In view of the aforesaid and on consideration of various orders passed by the petitioner and reiteration by him by order dated 24-2-97 directing the Indore Development Authority to accept the proposal of the land owner dated 17-7-96 claiming the developed plots in the name of the nominees and the ultimate order passed on 31-3-97 approving the proposal, on the note-sheet cannot be said, at this stage, that there was total absence of intention. May be the petitioner would be in a position to explain it at the appropriate stage but at present this Court is not a in a position to opine that there was no intention at the time of passing of the orders.
11. It is next contended by Mr. Datt that the materials on record do not indicate any kind of ‘attempt’. He has referred to Kenny’s ‘Outlines of Criminal Law’. He has also placed heavy reliance on the cases of Union of India and Anr. v. Major J.S. Khanna, 1972 Cr.L.J. 849, S.P. Bhatnagar (supra) and R.K. Shrivastava (supra). He has also referred to Black’s Law Dictionary in this respect. Submission of the learned senior counsel is that entire scenario does not even feebly reflect any aspect of ‘actus resus’ by the petitioner. In this regard, Mr. Saxena, learned Advocate General has also canvassed that it is the penultimate act which constitutes an attempt to commit an offence. Learned Advocate General has highlighted that if there is withdrawal at the last moment there is incompleteness and it falls short of attempt. It is well known in criminal jurisprudence that intention to commit an offence is a direction to conduct towards the object chosen upon considering the motive which suggests the choice (See : Stephen’s “General View of the Criminal Law of England”, page 60 Second Edition). I may also refer to Halsbury’s Laws of England Vol. 11 page 64, the relevant portion reads as follows :
“An attempt is any overt act immediately connected with the commission of an offence and forming part of a series of acts which, if not interrupted or frustrated or abandoned, would result in the commission of the completed offence. Acts remotely leading towards the commission of an offence cannot constitute an attempt; the acts must be immediately connected with the offence. An act done preparatory to the commission of an offence is not sufficiently proximate; and it is not an attempt merely to procure materials with which to commit the offence.”
An attempt to commit an offence within its connotative expansion would engulf the intention to commit crime of some act in furtherance of commission and failure to consummate the crime because of certain circumstances. An attempt is to commit offence does not cease to be an attempt merely because before actual commission of the offence the offender is able to prevent it by doing some other act in pursuance of a changed intention. If the means adopted by the person are apparently suitable in the fulfilment of the design, the said acts can be regarded as steps in the ladder for the execution of the principal crime. In this context, I may profitably refer to the views registered by the Apex Court in the case of Mohd. Yakub Khan and Ors. (supra), wherein R.S. Sarkaria, J., and O. Chinnapa Reddy, J., in different judgments expressed as under:
“Per Sarkaria, J.– What constitutes an ‘attempt’, is a mixed question of law and fact, depending largely on the circumstances of the particular case. “Attempt” defies a precise and exact definition. Broadly speaking all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conduct which may be divided into three stages. The first stage exists when the culprit first entertains the idea or intention to commit an offence. In the second stage, he makes preparations to commit it. The third stage is reached when the culprit takes deliberate overt steps to commit the offence. Such overtact or step in order to be ‘criminal’ need not be the penultimate act towards the commission of the offence. It is sufficient if such act or acts were deliberately done, and manifest a clear intention to commit the offence aimed, being reasonably proximate to the consummation of the offence.
Per Chinnapa Reddy, J.– In order to constitute ‘an attempt’, first, there must be an intention to commit a particular offence, second, some act must have been done which would necessarily have to be done towards the commission of the offence, and, third, such act must be ‘proximate’ to the intended result. The measure of proximity is not in relation to time and action but in relation to intention. In other words, the act must reveal, with reasonable certainty, in conjunction with other facts and circumstances and not necessarily in isolation an intention, as distinguished from a mere desire or object to commit the particular offence, though the act by itself may be merely suggestive or indicative of such intention, but, that it must be, that is, it must be indicative or suggestive of the intention. In the instant case the fact that the truck was driven up to a lonely creek from where the silver could be transferred into a sea-faring vessel was suggestive or indicative though not conclusive, that the accused wanted to export the silver. It might have been open to the accused to plead that the silver was not to be exported but only to be transported in the course on inter-coastal trade. But, the circumstances that all this was done in a clandestine fashion, at dead of night, revealed, with reasonable certainty, the intention of the accused that the silver was to be exported.”
It is relevant to state here in the aforesaid case the observation made in the case of Malkiat Singh and Anr. (supra) to which Mr. Saxena has referred to, was distinguished. As per the view taken by the Apex Court it is not penultimate act but the preceding act also would amount to an attempt. It is strenuously urged by Mr. Datt that once earlier orders have been withdrawn by order dated 26-9-97 which was in fact, passed on 17-9-97 the question of attempt would not arise as the petitioner realising the fact that the note submitted by the Additional Secretary after the communication of the order to the Indore Development Authority was not in public interest, had withdrawn the order the factual matrix cannot be said to become a pointer towards attempt. It is proponed by Mr. Datt that the withdrawal of the order was at the stage of preparation. To appreciate the submission of Mr. Datt the facts as enumerated earlier may be stated at the cost of repetition. As alleged in the FIR the petitioner withdrew the earlier order and passed a fresh order after coming to know that a complaint has been lodged before the Lokayukt. A copy of the order passed on 26-9-97 has also been sent to the Legal Advisor, Lokayukt as is evident from ‘Annexure P-19’. It is submitted by Mr. Shroti, that it is not realisation of the mistake by the petitioner or rectification of an error out of his own volition but because of a situation created by virtue of a complaint lodged with the Lokayukt. It is his further submission that but for this the petitioner would not have passed the order which has been passed on 26-9-97. It is also asseverated by him that the petitioner has also not withdrawn all the preceding orders. The essence of Mr. Shroti’s submission is that the plea of volition as advanced by the petitioner is not sanguine. What actually does constitute an offence of attempt, it depends upon the facts of each case. In this context, I may usefully refer to the example given in the case of Malkiat Singh (supra) wherein their Lordships registered the views as under :
“If a man buys a box of matches, he cannot be convicted of attempted arson, however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket but if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it.”
Thus, in the example given the person concerned extinguishes the match on his own but still he is liable for the ‘attempt’ to commit the offence. Thus, what acts would constitute an attempt would depend upon the facts and surrounding circumstances of the case and one may put up his defence explaining his initial steps and withdrawal later on but it cannot be, at the stage, said that order passed on 26-9-97 totally obliterates the liability of attempt. Further explanation would be in the realm of the defence at the appropriate stage.
On scrutinising the FIR and materials so far collected in a studied manner, it is difficult to accept the contention of the learned counsel for the petitioner that the FIR and the materials collected do not disclose an offence in the terms of Section 15 of the Act. May be, the petitioner would be in a position to explain whole situation at the appropriate stage but the facts as exposited do not warrant for quashment of the prosecution on the ground that it does not by any stretch of imagination conceive the concept of attempt in any eventuality. 12. Now, I shall proceed to deal with the submission of Mr. Datt that under Sections 52 and 81 of the Adhiniyam the State Government is competent to change the scheme and, therefore, the order passed by the petitioner is not illegal, hence no criminality can be attributed to him. In this regard strong reliance has been placed on Paragraphs 7 to 9 of the decision rendered in Contempt Petition No. 69/98 disposed of on 29-6-98. I may first refer to Sections 52 and 81 of the Adhiniyam which read as under:
“52. Powers of State Government to give directions:
(1) The State Government may, if it considers it necessary in public interest so to do, give directions to the Town and Country Development Authority:–
(a) to frame a town development scheme;
(b) to modify a town development scheme during execution;
(c) to revoke a town development scheme, for reasons to be specified in such direction :
Provided that no direction to modify or revoke a town development scheme shall be given unless the Town and Country Development Authority is given an opportunity to present its case.
(2) The directions given by the State Government under this Section shall be binding on the Town and Country Development Authority.
81. Suit and other proceedings.– No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rules made thereunder.”
On an objective perusal of the” aforesaid provisions it is apparent that the words ‘in good faith’ are the key words. Power there may be, but its exercise must be ‘in good faith’. Now I shall refer to paragraphs from the order passed in the Contempt Petition. They read as under :
“7. Section 52 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short ‘the Adhiniyam’) confers powers on State Government to give directions to frame, modify or revoke a town development scheme. Cowperin “The Task” observed that “God made the country and man made the town”. Now if town is to be made, Government should have such a power even when property vested. The direction to release land is like modification of scheme during execution. Apart from this provisions, Section 72 of the Adhiniyam confers power of superintendence and control in the undernoted terms and State Government could “supervise” or “control” in an effort to be a good Government:
“72. State Government’s power of supervision and control.-The State Government shall have power of superintendence and control over the acts and proceedings of the officers appointed under Section 3 and the authorities constituted under this Act.”
8. The different course perused by the Indore Development Authority is inexplicable–
(i) Because, State Government possessed powers under Section 52 as well as 72 of the Adhiniyam in public interest.
(ii) Because, the Court did not deem it proper to quash the order of release on the ground of absence of power or otherwise despite prayer.
(iii) Because, Indore Development Authority obligated to decide the dispute and order of the Court gave no scope to it to leave it to any other forum or authority.
(iv) Because, Indore Development Authority was to act according to directions contained in letter of 26-9-1997.
9. Firstly, State Government is possessed of power, secondly, direction or action of release, even in the absence of power under the law, could not be denounced, without any thing more, as “criminal misconduct” or as vitiated by corrupt or illegal means or as being an abuse of its position. Any public servant or head of Council or Minister for that matter, operating in this regard on behalf of the State, or a beneficiary like owner etc., cannot ipso facto be stigmatised or exposed to prosecution or loss of reputation before public. It is trite law that authority which has “jurisdiction” to decide any question has jurisdiction to decide it rightly or wrongly. But decision, when assumed to be wrong, is not to be viewed as tainted without factual foundation. Certain matters need to be left to Government. In AIR 1990 SC 261 (Sundarjas Kanyalal Bhathija and Ors. v. The Collector, Thane, Maharashtra and Ors.), it is held that:
“We may only observe that the Government is expected to act and must act in a way which would make it consistent with the good administration. It is they, and no one else – who must pass judgment on this matter.”
True it is, there is a finding that the State Government has authority to modify the Town Development Scheme but simultaneously the Court has also observed that the power of State Government to release should not be denounced without anything more. Thus, order of release is not absolute for all purposes and if anything more is there then it can be called in question in any Court of Law and person concerned can be proceeded against if it is not in public interest. Thus, I may humbly state that the State Government may have the authority to modify the scheme but public interest has to be given paramount importance. To appreciate the situation in the obtaining factual backdrop, the petitioner while passing the order of release on 24-2-97 had directed the Indore Development Authority to accept the proposal of the land owners dated 17-7-96 claiming the developed plots in the name of the nominees. Whether it is in public interest or not, is yet to be tested. Initially, the order passed on 11-8-95 indicated that it was in public interest as the scheme as stipulated had been stalled. After passing the order Shri Yadav, the erstwhile Minister observed that the agreement was in force. But as per Section 71 (1) of the Adhiniyam it has already vested in the State Government being free from all encumbrances. Thus, question of release of the land in favour of the beneficiaries accepting the proposal of the land owners for the developed plots of the Trust is not in consonance of the provision of the Adhiniyam inasmuch as by such an order the land owner thereafter got more benefit as alleged by the prosecution. Apart from the above, it is also alleged that the allotment in favour of the nominees would have freed them from the clutches of the Urban Land (Ceiling and Regulation) Act, 1976. Whether it is so or not, has to be enquired into. It cannot be pronounced at this juncture that there is nothing more. Hence, the decision in the contempt proceeding is not much of assistance to the petitioner.
13. Thus, from the aforesaid discussion it can be irrefragably held that the present case is not one, where this Court can come to the conclusion that the allegations in the FIR and the material collected so far, do not disclose any offence against the petitioner. Whether the allegations constitute an offence under Section 13(1)(d), 13(2) and 15 of Prevention of Corruption Act and Section 120B of the Indian penal Code can be agitated by the petitioner at the appropriate stage. It would also depend upon in respect of what offences charge-sheet would be filed. Needless to emphasize, it would be open to the petitioner to call in question the propriety of the charge-sheet at the appropriate stage before the competent forum as per the established parameters of law. It is hereby made clear that the Competent Court shall not be influenced by any of the observations made in this order.
14. Consequently the writ petition, being devoid of merit, is not admitted and is accordingly dismissed.