Himachal Pradesh Cricket Association & Anr. Etc. v. The State of Himachal Pradesh & Ors.

(A.K. Sikri, Ashok Bhushan and S. Abdul Nazeer, JJ.)

Himachal Pradesh Cricket Association & Anr. Etc. ______ Appellant(s)

The State of Himachal Pradesh & Ors. _______________ Respondent(s)

Criminal Appeal No(s). 1570-1572 of 2018 [Arising Out of Special Leave Petition (Crl.) Nos. 3298-3300 of 2017], decided on December 6, 2018

The Order of the court was delivered by

Order

1. Leave granted.

2. These appeals are filed against the Judgment dated 06.04.2017 in CRL. MMO No. 285/2015 etc. by the High Court of Himachal Pradesh. The CRL. MMOs were filed by the appellants herein under Section 482 of the Code of Criminal Procedure (“CrPC”) seeking quashing of proceedings arising out of FIR No. 14 of 2013 dated 03.10.2013 registered under Section 447 read with Section 120-B of the Indian Penal Code (“IPC”), Section 3 of the Prevention of Damage to Public Property Act, 1984 and Section 13(2) of the Prevention of Corruption Act, 1988 (“PC Act”). This FIR is sequel to the earlier FIR No. 12 of 2013 dated 01.08.2013 registered under Sections 406, 420, 120-B of the IPC and Section 13(2) of the PC Act against the appellants herein. In respect of that FIR also the appellants had filed petitions under Section 482 of the CrPC which were dismissed by the High Court vide Judgment dated 25.04.2014. That judgment was the subject matter of Criminal Appeal Nos. 1258-1259 of 2018 etc. and vide Judgment dated 2.11.2018 this Court has quashed the proceedings arising out of the said FIR.

3. Facts of the case are stated in detail in the said judgment and our detailed reasoning is given for quashing that FIR. Therefore, it is not necessary to state the facts as well as contentions in detail. In fact, while narrating the sequence of events, facts pertaining to the instant FIR have also been taken note of. We may, therefore, recapitulate in brief that the subject matter of FIR No. 12 of 2013 dated 01.08.2013 was allotment of land to appellant No. 1 for the purpose of constructing cricket stadium at Dharamshala. A Lease Deed dated 29.07.2002 was executed between appellant No. 1 and respondent No. 1 through Director, Himachal Pradesh Youth Services and Sports Department for this purpose. It was proposed to host international cricket matches at Dharamshala. At their request, the International Cricket Council (“ICC”) inspected the cricket infrastructure being developed at Dharmshala by appellant No. 1. The ICC observed that though the cricket stadium had potential to become stadium of international standard, there was a necessity to improve the quality of accommodation and to add more facilities. Need for hostel accommodation for desired quality was also stressed. Keeping in view this Report of the ICC, the appellants had made request, inter alia, for allotment of further land including area of 720 square metres (which is the subject matter of FIR No. 14 of 2013) abutting the stadium. This area was in the occupation of Education Department and there was residential hostel accommodation thereupon. Allegation in the chargesheet is that the said residential hostel was demolished illegally by the officials of appellant No. 1 in connivance with the other Government Officials and given to appellant No. 1 on which it had made its construction after the said demolition. The chargesheet discusses the role of various officials including Shri K.K. Pant, Deputy Commissioner, Kangra (an IAS Officer), Shri Mohinder Singh Katoch, S.D.O., H.P. P.W.D. Division, Dharamshala, Shri Devi Chand Chauhan, Xen. H.P. P.W.D., Dharamshala, Shri Lalit Mohan Sharma, Principal, Government College, Dharamshala w.e.f August 2006 to July, 2008 and Shri Narender Awasthi, Principal, Government College, Dharamshala from July, 2008 to February, 2010 as well as the appellants herein. There are few other officials named as well.

4. The chargesheet also records that meetings were held in this behalf which were chaired by the Deputy Commissioner, Kangra, Shri K.K. Pant. It was found that the building was in a very dilapidated condition and the accommodation was also posing security threat to the cricketers playing inside the cricket stadium. After detail discussion the following decisions were taken:

“1. The Principal government college, Dharamshala will move an application to the Executive Engineer, PWD, Dharamshala for assessing durability of the building.

2. The Principal government college, Dharamshala with the help of Tehsildar Dharamshala will identify a suitable land where quarters for government college can be constructed.

3. It was further decided that he will also move a case-to-the secretary education for allocating of funds for construction of new residential accommodation. The Chairman assured the Principal government college that he will extend cooperation to the college to get the funds allocated for the new residential accommodation.

4. It was decided that existing occupants of the houses should apply for allotment of accommodation to the Deputy Commissioner, Kangra at Dharmshala and it was assured that they would be allotted accommodation in general pool on priority basis.

5. It was also decided that HPCA should also extend financial assistance to the college authorities for the construction of accommodation elsewhere. The meeting ended with the vote of thanks to the chair. (Letter endst. No. 264652/MA, dated 14/3/08)”

5. On a perusal of the chargesheet, it shows that various meetings were held even thereafter and decisions to the aforesaid effect were formed up. The chargesheet accepts that main role in the entire process was played by Shri K.K. Pant.

6. As mentioned above, these aspects are taken note of in the Judgment dated 2.11.2018 along with the subject matter of FIR No. 12 of 2013.

7. The detailed reasons which are given for quashing FIR No. 12 of 2013 dated 01.08.2013 would equally apply to the present case also. We may reproduce some of these discussions hereinbelow:

“37. From the aforesaid events, following aspects can be culled out:

Appellant No. 1 has been given lease of land on which cricket stadium was constructed and thereafter lease for additional land meant for club house and also supplementary lease for commercial activity i.e. the hotel. It is only in respect of the land which is meant for cricket stadium that rental of Re.1/- per month was agreed to be charged by invoking proviso to Rule 8. Thus, it is not contrary to law. State of Himachal did not have any cricket ground, much less State of art cricket ground. It is, for this reason, that the land was given on lease for the purpose of constructing the cricket ground, which may become pride of Himachal Pradesh, at nominal rental. Insofar as lease in respect of club house and supplementary lease for commercial activity (i.e. hotel) is concerned, the lease money has been fixed in accordance with Lease Rules, 2011, namely, at commercial rates. There can hardly be any element of criminality in the aforesaid allotments inasmuch as six very senior officers in the State Government (four of them of IAS Cadre and one belongs to Himachal Pradesh Administrative Service) who had examined the matter and only after their approval, the allotments were made. There is no culpability attributed to them, which is a very crucial factor.

38. What is more important is that the matter was looked into by Director-cum-Special Secretary, Youth Services and Sports Department as well as Secretary, Youth Services and Sports Department and it is only after the examination of the proposal by them and their final approval, lands in question were allotted.

39. The respondents have submitted status report before the High Court, pursuant to the directions issued by it. As per the said status report as well as the FIRs, allegations against the appellants and others who are arrayed as accused persons are that appellant No. 2 along with other accused indulged in illegal activities. It is alleged that Shri R.S. Gupta, the then Deputy Commissioner, had prepared report ignoring the report of Divisional Forest Officer who had assessed the value of trees at Rs. 50 lakhs at that time, thereby causing wrongful loss to the Government. Further, one Shri Deepak Sanan, the then Revenue Secretary, provided a helping hand to the accused persons for granting permission to set up and run a commercial hotel and the matter was not taken to the Cabinet which was in violation of Schedule 20 of H.P. Rules of Business. It is also alleged that Himachal Pradesh Cricket Association Society was merged into a company just to prevent the State Government from controlling it. These are the main allegations.

40. Insofar as other allegations are concerned, two Officers, namely, Shri R.S. Gupta and Shri Deepak Sanan are implicated. While doing so, other senior Officers who took active part in decision making have not been touched.

41. In the two FIRs, seven IAS Officers, one Officer belonging to Himachal Pradesh Administrative Service and one Executive Engineer, Dharamshala Division in Himachal Pradesh PWD Department played their significant role at one stage or the other. Interestingly, in the FIRs, these nine Officers were also implicated and specific role attributed to them which has been already mentioned in the tabulated format while recording the arguments of Mr. Patwalia. This would demonstrate that insofar as Mr. Subhash Ahluwalia (IAS), Director-cum-Special Secretary, Youth Services and Sports Department is concerned, allegation against him was that he ignored the rules and did not mention the provisions of Lease Rules, 1993. He was also signatory to lease deed dated July 29, 2002. It is important to mention that entire FIRs proceed on the basis that appellants conspired with these Officers, among others. The imputation against Mr. Subhash Ahluwalia is that in fixing the rent at Re.1/- per month, he not only ignored the rules and did not even mention in his noting thereby implying that he was party to the alleged conspiracy. Similar allegations are against other eight persons as well alleging their role at different stages. Notwithstanding the same, three Officers, namely, Subhash Ahluwalia, Subhash Negi and T.G. Negi were not even charged on the purported ground that there were not enough evidence and mala fide intention. In respect of Mr. Ajay Sharma, Central Government had declined the sanction. Though, State Government had accorded the sanction for prosecution earlier but it has also later withdrawn. Same is the position in respect of Deepak Sanan. Mr. Gopi Chand, who belongs to HPAS, though the prosecution sanction was granted earlier, in his case also, not only prosecution sanction was withdrawn by the State Government, he has even been promoted to IAS Cadre. In case of Mr. K.K. Pant and Mr. P.C. Dhiman, other IAS Officers, prosecution sanction is declined. This leaves us only Mr. Devi Chand Chauhan, Executive Engineer, Dharamshala Division in PWD, though in his case also, prosecution sanction was earlier rejected but subsequently granted on the recommendation of the then Chief Minister. There are two Gram Panchayat members, who had issued no objection for allotment of land for club house, who have been prosecuted. These three Officers are public servants who remain as accused persons. This Court gets an impression that in the entire conspiracy story put up by the prosecution, high Government officials are deliberately let off and very junior Officers were become scapegoat in order to ensure that a case under PC Act survives in respect of appellants as well who are not public servants. Even otherwise, when the aforesaid eight persons are not charged or proceeded against for want of prosecution, this lends support to the allegations of the appellants in imputing motives for their prosecution.

This Court, on a 360° scanning of the matter, arrives at the conclusion that the elements of criminal intent or criminal acts are lacking. Following factors do stand established from record:

(i) there is no criminal act on their part and the facts do not disclose any offence;

(ii) none of the officers who processed the case of the appellants are not prosecuted;

(iii) two Officers Subhash Ahluwalia and T.G. Negi who took active part in the decision making were made Principal Secretary to CM and Advisor to CM, respectively, by respondent No. 2 and were not prosecuted;

(iv) As per the prosecution, there is no criminal act on the part of the officers and they performed their appropriate administrative duties due to which sanction stands declined by the Central Government and the CVC. That itself is sufficient to absolve others from any criminal prosecution;

(v) even otherwise the State Government continues to remain owner of the land which is on lease and on which the appellants have constructed assets worth above 150 crores;

(vi) these assets are for use of the public of the State and are being used as such. Further, filing of chargesheet and an order taking cognizance is not a final judicial order. It is a preliminary process in criminal law and is open to challenge in higher judicial fora such as this Court.”

8. It is specifically reiterated that Mr. K.K. Pant is not proceeded with as no sanction to prosecute him was granted by the employer. We may also reiterate that the entire exercise would not make out a case of criminal nature under the provisions in which the chargesheet is filed.

9. Therefore, for the reasons aforesaid and given in our Judgment dated 2.11.2018 these appeals are allowed and the proceedings arising out of FIR No. 14 of 2013 dated 03.10.2013 registered under Section 447 read with Section 120-B of the IPC, Section 3 of the Prevention of Damage to Public Property Act, 1984 and Section 13(2) of the PC Act are hereby quashed. No order as to costs.

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 3298-3300/2017

(Arising out of impugned final judgment and order dated 06-04-2017 in CRMM No. 285/2015 06-04-2017 in CRMM No. 338/2015 06-04-2017 in CRMM No. 355/2015 passed by the High Court of Himachal Pradesh At Shimla)

Himachal Pradesh Cricket Association & Anr. Etc.….Appellant(s)

The State of Himachal Pradesh & Ors.….Respondent(s)

(FOR PERMISSION TO FILE SYNOPSIS AND LIST OF DATES ON IA 7043/2017)

Date: 06-12-2018 These matters were called on for hearing today.

(Before A.K. Sikri, Ashok Bhushan and S. Abdul Nazeer, JJ.)

For Petitioner(s) Mr. P.S. Patwalia, Sr. Adv.

Ms. Purnima Krishna, Adv.

Mrs. Bihu Sharma, Adv.

Ms. Pratishtha Vij, Adv.

Mr. Snehasish Mukherjee, AOR

For Respondent(s) Mr. Ajay Marwah, AOR

Mr. D.K. Thakur, Adv. Mr. Shariq Ahmed, Adv.

Mr. Parmatma Singh, AOR

Mr. Manish Kumar, Adv.

UPON hearing the counsel the Court made the following

ORDER

10. Leave granted.

11. The appeals are allowed in terms of the signed order. Pending applications, if any, stand disposed of.

Petition(s) for Special Leave to Appeal (Crl.) No(s). 3298-3300/2017

Himachal Pradesh Cricket Association & Anr. Etc _______ Appellant(s)

The State of Himachal Pradesh & Ors ________________ Respondent(s)