Arun Kumar Aggarwal Vs.
State of Madhya Pradesh & Ors.
J U D G M E N T
H.L. Dattu, J.
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
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.
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 2Corruption Act, 1988 (hereinafter referred
to as "the PCA") and Section 120-B of the Indian Penal Code (hereinafter
referred to as "the IPC").
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
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
3 financial loss over four crores to the Government which there are sufficient
grounds for taking cognizance against the accused persons.
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."
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 reliance is also 4
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."
aggrieved, the appellant is before us in this appeal.
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
have heard the learned counsel for the parties to the lis and perused 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 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
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.
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.
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 7 nature of a
permission, while a direction is in the nature of a command." (Emphasis supplied).
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.
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."
Kanhiya Lal Omar v. R.K. Trivedi & Ors., (1985) 4 SCC 628, this Court has
observed that "A direction may mean an 8 order issued to a particular individual
or a precept which many may have to follow. It may be a specific or a general order."
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, 9 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)
Blacks Law Dictionary (9th ed. 2009) defines the term `Direction' as an order;
an instruction on how to proceed.
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."
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.
to the Words and Phrases, Permanent Edition, Vol. 12A, the term `Direction' means
a guiding or authoritative instruction, prescription, order, command.
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.
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"
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.
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.
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."
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"
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 not 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."
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."
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."
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)"
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."
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.
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
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.
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
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.
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]
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