1
RESERVED
Criminal Misc. Writ Petition No. 13848 of 2009
Syed Qamar Ahmad......................................Petitioner
Versus
State of U.P. and others..............................Respondents.
Hon. Imtiyaz Murtaza J.
Hon. S.S.Tiwari, J.
(Delivered by Hon. Imtiyaz Murtaza J.)
This lachrymose writ petition has been preferred by the
shocked uncle of a young budding officer whose career was full of
infinite possibiility and pregnant with promises. The deceased at
the relevant time was posted at Mahoba as Asstt. Manager in the
U.P. Cooperative Federation. He ended his life at age of 28 years,
allegedly being wearied by endlessly illicit demands of the
superiors. It is alleged that the deceased initially tried to cope with
the demand despite being aghast at the rampant corruption but
subsequently took the extreme step of ending his life finding
himself unable to bear the load on his mind. In the suicide note,
the deceased tweaked by his conscience has unburdened his mind
about the rampant corruption in the department.
The grieving uncle, it would transpire, has knocked the door
of this Court disenchanted by the reluctance of the investigating
agency in extending the long arm of law to the named persons
who on account of their status have managed to evade appearing
for interrogation. The relief sought is for a writ of mandamus
commanding the respondent 1 to transfer the investigation from
civil police to any other independent investigating agency attended
2
with the relief of a writ of mandamus directing the respondents to
submit the progress report in the case.
The deceased is Syed Gyas Ahmad alias Gaus who while
serving at Mahoba had his residence at Kareli Allahabad and he
had come back to his residence at Kareli from Mahoba on
3.4.2009. On 4.4.2009, he committed suicide at 11 a.m by
hanging himself. According to information furnished to Police
Station Kareli in writing by the petitioner, it was revealed that he
was informed by his wife that the deceased was hanging by rope
which was tied to the peg of the ceiling of the room situated on the
first floor at C 247 G.T.B.Nagar Kareli Allahabad attended with
information that it seemed that he was dead. Upon receipt of this
information, the petitioner immediately rushed to the scene of
occurrence where he saw his nephew hanging with ropes tied
around his neck. The police upon reaching the scene of occurrence,
loosened the rope and took the body down and necessary
formalities were undertaken and completed. According to the
report prepared by Sub Inspector, the search of the body yielded a
piece of paper the contents of which were read in the presence of
family members of the deceased and the people who had collected
on the spot. Thereafter, it would transpire from the record, the
body was sent for post mortem which was conducted on 4.4.2009
at 4.30 p.m.
On 4.4.2009, a written application was made to Senior Supdt
of Police Allahabad by the petitioner the quintessence of which is
that his nephew used to lament that his seniors who were named
by their designation namely, Managing Director, Managing Director
(Administration) and Regional Manager (who are arrayed as
respondents 5 to 7 in this petition) had been exerting pressure and
demanding money studded with threat to place him under
3
suspension in case of his failure to arrange money for them. It is
also mentioned that his nephew had come to him at NOIDA in the
last month and discussed with him the problem stating that Distt
Magistrate Mahoba had made a telephonic call and demanded to
arrange for one bag of sugar for use in the marriage of his orderly.
The deceased, it is alleged, had to meet the demand by paying a
sum of Rs. 2400/- out of his own packet. It is further alleged that
on 29.3.2009 when the petitioner rang up the deceased, he
appeared perturbed and told him on phone that his superiors were
demanding to rake up Rs. 10,000/- immediately attended with
information that in case his failed to meet the demand, they would
spoil their career. The deceased further disclosed to the petitioner
that within a span of seven months, he had to pay Rs. 35,000/- to
the Distt Magistrate Mahoba and other superior officers out of his
own packet and a sum of Rs. 13,000/- was collected from the
subordinate officials. It was also informed that his superiors were
demanding Rs. 150/- per quintal in the ensuing purchase of wheat.
To the similar effect is the application made by the mother of the
petitioner addressed to D.I.G. Zone Allahabad.
The suicide note left behind by the deceased, to rephrase it,
would agreeably read studded with prologue sentence “I have
given a serious thought but I am at a loss to understand (how to
deal with the situation). I have come to such a pass in my longing
to acquire a government job that I can neither abandon the job
nor can keep up with the job. I am being called on phone from the
Headquarters pressurizing to arrange for money. Where-from
should I arrange for money, they are not concerned with, whether
I should indulge in pilferage or misappropriation. I dread I may not
get trapped in criminal case which may result in lodging of F.IR by
local administration. I am not inclined to indulge in any such
activities. I have already collected and paid an amount to the tune
4
of Rs. 48000/- to the Managing Director, A.M.D , G.M.
(Administration) out of which certain amount was collected from
the office. Out of my total salary of Rs. 12000/- out of which on an
average a sum of Rs. 5000/- goes to the pocket of the authorities.
I can understand that people would blame me that I could not
cope with the government job in case I decide to abandon the job.
I am fed up with the rampant corruption in the P.C.F and being
unable to cope with it, I am committing suicide. My last will is that
whatever is available in my fund, the same should be disbursed to
my younger brother Mohd. Sufiyan. The note further mentions that
in case demand of headquarters is not met, he is being threatened
with tarnishing his character roll attended with the threat to
suspend him.”
We have heard learned counsel for the petitioner and also
learned counsel appearing for the State. We have also perused the
record and the police papers.
The prayer quintessentially made in this petition is for
transfer of investigation to another agency as the local police it is
alleged, has wilted under pressure elaborating that the accused
herein are highly placed bureaucrats and have enough clout in the
corridors of powers and those at the helm of affairs in the corridor
of powers that be, are interfering in the fair investigation from
behind the curtains. It is further alleged that the suicide note is a
version of dying man who cannot tell a lie when he himself was
ending his life. It is further submitted that the accused persons
have continued to evade the captivity and despite there being no
questioning from any of the accused, the police still submitted the
final report without any valid basis. It is further alleged that the
deceased was very upright and had joined the service with certain
hopes and expectations of serving the public but his dreams were
5
shattered by the corruption rampant in the department. It is also
argued that the pressure on local police is writ large from the very
inception and the police has, from the very inception, attempting
to close the chapter by filing final report but could not do initially
on account of interference by this Court by which the Court was
pleased to direct change of investigating officer but it only delayed
submission of the final report and it was owing to pressure from
the higher ups the police has again filed final report.
Per contra, Sri S.G.A. Hasnain, Additional Advocate General
appearing for the State of U.P vehemently argued that the
investigation has been conducted by the police strictly according to
the provisions of the Cr.P.C. and the final report has been
submitted before the Special Judge and it is none of the business
of any of the person to canvass its validity in the jurisdiction of this
Court under Article 226 of the Constitution of India nor can this
Hon. Court interfere therein. The next argument advanced across
the bar is that it is the Magistrate who is empowered under section
156 (3) Cr.P.C to direct or redirect the investigating agency to
make proper and fair investigation and monitor the investigation.
The next submission is that after filing of the final report or charge
sheet as the case may be it lies within the power of the Magistrate
who can go into the question whether investigation is fair or not
and whether certain aspect or certain relevant facts or statements
have or have not been touched upon in the investigation. It is
further argued that if any party is aggrieved by the order of the
Magistrate, he can canvass the validity of the order under section
482 Cr.P.C or under Article 226 of the Constitution of India.
The investigating officer who holds the office of Circle officer
police, has filed affidavit sworn by him in which he has clearly
stated that he has conducted investigation in utmost fair manner
6
and he also interrogated various employees and officials of the
department and none of them testified to the demand of money by
higher officers or parting with money out of his own salary for
being pocketed by the higher officers. He also stated that the
demand of illegal gratification has been propped up by the family
members and family friends of the deceased. He has also referred
to various calls made by the officers to the deceased. Both on
mobile and land line which according to the investigating officer
related to a period three months prior to the suicide by the
deceased. In para 10, the investigating officer has stated that the
deceased except making allegations in the suicide note, is not
found to have made any complaint against any of the officers of
the department. He also stated that in the course of investigation,
he interrogated 70 persons in all. It is nowhere stated that accused
persons were also interrogated in connection with the allegation of
demand as alleged in the suicide note. He also referred to the
amount in deposit which was to the tune of Rs. 50,000/- in the
Bank account of the deceased and the point urged is that the
deceased did not disclose in the suicide note as to from where he
gratified the so-called illegal demand of the officers of the
department. The suicide note is the last words uttered by the
deceased and it cannot be taken to be a chronicle of the
exhaustive details nor can it be a catalogue of everything including
minor particulars. In para 14, he refers to application dated
4.4.2009 made in the aftermath of the suicide and it is stated that
the allegations contained in the said application were also taken
into consideration in the course of investigation but no evidence to
prop up those allegations is forthcoming. It is nowhere stated that
the accused persons named in the F.I.R have also been
interrogated in the course of investigation by the Investigating
officer.
7
From the facts on record, and also from the various affidavits
including the affidavit of the investigating officer, the substance of
what can be gleaned is that no evidence about illegal demand by
the officers is forthcoming but at the same time, the element of
abetment would clearly transpire from the facts on record.
One of the arguments advanced across the bar is that the
High Court has no power to direct investigation by the C.B.I and to
prop up his submission, he has elaborately cited the provisions of
the Cr.P.C dwelling upon the powers of the Magistrate. Suffice it to
say without burdening the judgment with copies decisions on the
point that it must be remembered the jurisdiction assigned to High
Court under Article 226 is the extra ordinary jurisdiction. The Court
therefore has powers apart from express provisions of law which
are necessary for proper discharge of functions and duties imposed
by law. Such inherent or extra ordinary jurisdiction are intended to
be exercised to do the right and to undo a wrong in course of
administration of justice on the principle “quando lex aliauid
alicui concedit concedere videtur et id sine quo res ipsae
esse non potest” (where the law gives a person anything it gives
him that without which it cannot exist). It must also be
remembered that this Court under Article 226 does not function as
a court of appeal or revision but has to exercise powers ex debito
justitiae to do real and substantial justice for the administration of
which alone court exists. In Civil Appeal Nos. 6249-6250 of
2001 State of West Bengal and others v. The Committee for
Protection of Democratic Rights, West Bengal and others,
the Apex Court in para 35 observed as under:
“As regards the power of judicial review conferred
on the High Court, undoubtedly they are, in a
way, wider in scope. The High Courts are
authorized under Article 226 of the Constitution,
to issue directions, orders or writs to any person
8or authority, including any government to enforce
fundamental rights and “for any other purpose:.It
is manifest from the difference in the phraseology
of Articles 32 and 226 of the Constitution that
there is a marked difference in the nature and
purpose of the right conferred by these two
Articles. Whereas the right guaranteed by Article
32 can be exercised only for the enforcement of
fundamental rights conferred by Part III of the
Constitution, the right conferred by Article 226
can be exercised not only for the enforcement of
fundamental rights, but “for any other purpose”
as well i.e. for enforcement of any legal right
conferred by a Statute etc. “
The next argument relates to the powers of the Magistrate as
discussed above. Coming to the facts on record the genesis of the
case is the suicide note. There is no gainsaying that it is open to
an aggrieved person to exercise his legal right by filing the protest
petition in case, he nurtures grievance that the investigation
conducted by the police is not fair. As quoted above, the suicide
note without mincing words refers to the background in which the
deceased took the extreme step of taking away his own life by
committing suicide. The deceased has named the accused persons
by designation. Ex-facie, the suicide note unequivocally refers to
the acts of the accused and the roles played by them which
ultimately led the deceased for taking extreme steps of taking
away his life by committing suicide. It is again argued that it
leaves no manner of doubt from the record that the police has not
interrogated any of the accused at any point of time. However,
according to the own submission of learned Addl. Advocate
General, all these aspects have to be looked into by the Special
Judge where the final report has been submitted. The learned
Additional Advocate General admitting the legal position has also
advanced the submission that even if the police files final report, it
is the duty of the Magistrate to take appropriate action thereon. It
is also admitted that the Magistrate would initially issue notice to
9
aggrieved person who is at liberty to file protest petition
canvassing the shortcomings if any, of the investigation.
From a perusal of the materials on record and also from a
close scrutiny of the submissions advanced across the bar, the
position that is distilled and worthy of notice is that the F.I.R
initially was registered under section 306 IPC and section 7 of the
Prevention of Corruption Act was subsequently added. If the facts
on record are literally taken at its face value, it is not the case
where provisions of section 7 of the Prevention of Corruption Act is
attracted. Learned Addl. Advocate General has also conceded that
from a perusal of the suicide note, the ingredients of Prevention of
Corruption Act are not disclosed or made out. The counsel for the
petitioner emphatically stated that the perusal of suicide note
attracts the provisions of section 384 IPC. The Section 384 IPC
being germane to the issue involved in this case is abstracted
below.
“384. Punishment for extortion-
Whoever commits extortion shall be
punished with imprisonment of either
description for a term which may extend to
three years, or with fine, or with both.”
It is stated across the bar by the learned Counsel appearing
for the State that the final report has been submitted by the police
before the Special Judge (Prevention of Corruption Act). On being
confronted and on adverting his attention to his submissions that
the ingredients of offence under the Prevention of Corruption Act
are not disclosed, he evaded a direct reply on this crucial aspect.
Having considered the materials on record, we too are of the
opinion that if no offence under the Prevention of Corruption Act is
found to have been made out, the police should have filed the
10
final report before the learned Magistrate concerned and not
before the Special Judge (P. C. Act) inasmuch as cognizance, if at
all required, pursuant to the final Report in the absence of
sanction for prosecution cannot be taken by the Special Judge. Yet
another aspect to be taken into reckoning is that as conceded by
the learned Addl. Advocate General that ingredients of Prevention
of Corruption act are not attracted, by this reckoning, the Special
Judge cannot take cognizance under section 306 or section 384
IPC. In elucidating this position, we may refer to section 28 of the
Prevention of Corruption Act and it being relevant, is excerpted
below.
“28. Act to be in addition to any other law:- The
provisions of this Act shall be in addition to, and not in
derogation of any other law for the time being in force,
and nothing contained herein shall exempt any public
servant from any proceeding which might, apart from
this Act, be instituted against him.”
The position as summed up by above discussion, boils down
as under that the suicide note clearly refers to the acts of the
accused and th roles played by them and further that from a
perusal of the suicide note is attracted the ingredients of section
384 IPC and also that as conceded by the Addl. Advocate General,
the provisions of Prevention of Corruption act are not attracted and
in this view of the matter, the final report has necessarily to be
filed before the Magistrate.
In the facts and circumstances of the case, without delving
into the merits of the argument whether submission of final report
in the matter by the police is justified or not, and whether it is a fit
case for being referred to any other agency for investigation afresh
or not, the petition is disposed of with the direction that the
11
Special Judge shall return the final report for re-presentation to
the appropriate court or the prosecuting agency shall withdraw
Final report filed in the Court of Special Judge (P. C. Act) and file
the same anew before the Magistrate concerned within 30 days
from today. The Magistrate will pass appropriate orders in
accordance with law however without being influenced by any of
the observations made in the body of this judgment.
The petition is disposed of finally in terms of the above
orders.
MH
May 10…..2010.