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Allahabad High Court
Vinayendra Nath Upadhyay And … vs State Of U.P. & Ors. on 4 August, 2010
Court No. - 46

Case :- CRIMINAL MISC. WRIT PETITION No. - 9873 of 2010

Petitioner :- Vinayendra Nath Upadhyay And Others
Respondent :- State Of U.P. & Ors.
Petitioner Counsel :- Rituvendra Singh,A.K.Pandey
Respondent Counsel :- Govt. Advocate

Connected with

Criminal Misc. Writ Petition No. 9674 of 2010
Lallan Prasad................................................................Petitioner
Versus
State of UP and others...............................................Respondents
Connected with
Criminal Misc. Writ Petition No. 9871 of 2010
Madhusudan Pandey and another..................................Petitioners
Versus
State of UP and others...............................................Respondents
Connected with
Criminal Misc. Writ Petition No. 9567 of 2010
Sanjay Kumar Singh and another................................Petitioners
Versus
State of UP and others...............................................Respondents
Connected with
Criminal Misc. Writ Petition No. 9992 of 2010
Shiva Nand Tiwari and another....................................Petitioners
Versus
State of UP and others...............................................Respondents
Connected with
Criminal Misc. Writ Petition No. 10676 of 2010
Amar Deep Singh and others.....................................Petitioners
Versus
State of UP and others...............................................Respondents
Connected with
Criminal Misc. Writ Petition No. 10731 of 2010
Brij Nath Sharma and another........................................Petitioners
Versus
 State of UP and others...............................................Respondents
Connected with
Criminal Misc. Writ Petition No. 11172 of 2010
Kashi Nath Singh and another........................................Petitioners
Versus
State of UP and others...............................................Respondents
Connected with
Criminal Misc. Writ Petition No. 11572 of 2010
Punita Mishra..................................................................Petitioner
Versus
State of UP and others...............................................Respondents
Connected with
Criminal Misc. Writ Petition No. 11790 of 2010
Dinesh Kumar Yadav......................................................Petitioner
Versus
State of UP and others...............................................Respondents
and
Criminal Misc. Writ Petition No. 11791 of 2010
Lalit Kumar Pandey........................................................Petitioner
Versus
State of UP and others...............................................Respondents


Hon'ble Amar Saran,J.

Hon’ble S.C. Agarwal,J.

( Delivered by Hon’ble Amar Saran, J )
All the aforesaid connected writ petitions have been sent to this Bench headed
by one of us (Amar Saran, J.) by order of Hon’ble the Chief Justice dated
5.7.2010.

We have heard Sri Umesh Narain Sharma, Sri V.P. Srivastava, and Sri G.S.
Chaturvedi, Senior Advocates for the petitioners in some of the petitions, the
learned counsel for the other petitioners Punita Mishra, Dinesh Kr. Yadav,
Shivanand Tiwari, , Amar Deep Singh and others, Lalit Kumar Pandey, Lallan
Prasad have also raised some submissions. Other counsel have adopted their
contentions. We have also heard Sri A.K. Sand, and Sri Vikas Sahai, learned
Additional Government Advocates for the State and have perused the records
of the writ petitions, and have also summoned and seen the records in Civil
Misc. Writ Petition No. 23250 of 2010, Special Appeal ( Defective ) No. 610
of 2010 and in Civil Misc. Contempt Petition No. 1724 of 2004.
The petitions are an offshoot of orders passed by Hon’ble Arun Tandon, J on
13.5.2010 in Civil Misc. Writ petition No. 23250 of 2010, wherein the learned
single Judge observed as follows:

“Shri M.C. Chaturvedi, Chief Standing Counsel is present in the Court. He submits that the
matter is in active consideration of the State Government. It is stated that certain disciplinary
proceedings have been initiated against the persons responsible. He further submits that the
embezzlement of the money from the GPF account is not in dispute, however the
quantification is to be done.

This Court is of the firm opinion that for the embezzlement of the public money, criminal
liability does occurs. Therefore, First Information Report has to be lodged against the persons
guilty and they must be brought to book.

Let necessary be done by 24.5.2010.

Put up as unlisted on 24.5.2010.”

In an earlier order dated 5.5.2010 in writ petition No. 23250 of 2010 Hon’ble Arun Tandon, J.
observed as follows: “Two aspects of the matter are involved, (a) how the 12 crores of rupees,
which have been deposited by the teachers and employees in the hope that on retirement they
will get the money encashed from the said General Provident Fund and survive during old age,
is to be recouped, inasmuch as ultimately such teachers and staffs would suffer if the money is
not restored, and (b) no fraudulent withdrawal from the Government Treasury through the
office of the District Inspector of Schools, Ballia is prima facie possible from the General
Provident Fund unless officers and employees working in the aforesaid two offices collude
with the private management and the person concerned.”

Pursuant to the aforesaid orders of this Court, the District Inspector of
Schools, Ballia lodged an FIR on 23.5.2010 at case crime No. 271 of 2010,
under sections 409, 467, 468, 471, 419, 420 IPC, police station Kotwali,
district Ballia. The said FIR which nominates the then District Inspector of
Schools (DIOS), Sri Brijnath Pandey, Accounts Officer, Sri Kamla Kant and
Accounts Clerk, (the petitioner Lallan Prasad, in Cr. Writ Petition No. 9674 of
2010), and the teaching and non-teaching employees in some aided secondary
institutions in Ballia numbering 47, and which also implicates the then
managers and principals of the said institutions, has been challenged by the
petitioners in the bunch of petitions before us.

The FIR mentioned that it was being registered pursuant to the order of the
High Court in Writ-A No. 23250 of 2010. It was mentioned in the FIR that
during the period October 2005 and April 2006 the Principals and Managers
of the non-government aided secondary and higher secondary colleges at
Ballia entered into a criminal conspiracy with certain teachers and non-
teaching staff of their institutions and the then District Inspector of Schools,
Accounts Officer and the Accounts Clerk with the objective of embezzling
public money. Forged documents were manufactured with the aim of illegally
paying salaries to teaching and non-teaching employees whose appointments
were unauthorised after showing false dates of appointments. Arrears were
paid without authorization from the competent authority, and funds meant for
the GPF accounts were diverted for distribution as arrears of salary. The
details of the concerned teaching and non-teaching employees, and the illegal
payments received by each, and the role of the aforementioned DIOS,
accounts officer and clerk, and the Principals and Managers and some
illustrations of the modus operandi adopted at the concerned institutions in
Ballia are given in an audit report which was conducted by an Audit team of
the Education Directorate Allahabad, pursuant to earlier complaints, and is
annexed to the FIR. The FIR and the audit report further show that in some
instances the college records were dishonestly removed to hamper audit, in
other cases the teaching and non-teaching employees got payments made in
furtherance of their conspiracy with the aforesaid educational authorities
without even producing the relevant papers from the College. In a case the
GPF amount standing to the credit of a regular teacher was unauthorizedly
withdrawn by collusively affixing the photograph of another person which
was verified by the principal of the institution (Langtu Baba Inter College,
Harihankala), and the withdrawal was approved by the principal and the
manager (the then DIOS Brajnath, who was acting as the manager) after
forged ledgers were got prepared, which bore the signatures of the college
principal and the then accounts officer and the accounts clerk (petitioner
Lallan Prasad, in Cr. Misc. Writ Petition No. 9674 of 2010) at the DIOS
office.

It was submitted by Sri V.P. Srivastava and some other learned counsel for
the petitioners that the teaching and non teaching employees had been validly
appointed and that there were orders of the High Court in different writ
petitions validating their appointments or directing either payment of salary or
to consider their representations within a stipulated period of time. Some of
these orders have even been annexed.

Furthermore in Civil Misc. Contempt Petition No. 1724 of 2004 an order
dated 12.7.05 was passed directing payment of salaries to the petitioners in
whose cases final orders had been issued in the writ petitions filed by them.
This Contempt was filed to ensure compliance of an order dated 25.2.04
passed in C.M.W.P. No. 25885 of 2003. Hence the petitioners could not be
faulted for receiving the salaries.

It may be noted that the said contempt petition was eventually dismissed by
an order dated 12.12.05.

Significantly in Civil Misc. Writ Petition No. 25885 of 2003, which was the
basis for the direction in the Civil Contempt, the single judge was looking at
the illegal and fraudulent appointments in the educational institutions at Ballia
where the matters had been handed over to the CBCID for investigation. The
CBCID had even recommended lodging of criminal cases and the salary of
329 employees had been with-held. The Director of Education (Secondary)
had found that 104 employees had approached the High Court and obtained
orders in writ petitions directing payments of salaries pending completion of
enquiry. It was also noticed in the said order dated 25.2.04 that the enquiry
had resulted in favourable reports for 75 employees. But significantly the
single Judge observed:

” I have perused the enquiry report submitted in respect of 75
teachers/employees, which has been forwarded to the State
Government. From this report, I find that the individual cases have not
been considered in detail. The interim order of this court for making
the payment of the salaries until the conclusion of the enquiry have
been found to be conclusive to validate the appointment. In some case,
casual observations have been made that the appointments are valid on
the ground that there are sanctioned posts available in the institution.

The report concerning sanction of posts and validity of the
appointments by following proper and due procedure have not been
considered and discussed. In the aforesaid facts and circumstances, I
find that the department must give due expediency to the matter and
each case must be considered individually. The enquiry officer must
record findings about each and every appointment separately. Where
the appointments are found valid immediate action must be taken for
restoration of payment of the salary. The department must not wait for
the entire matter to be considered. The decision may be taken at the
level of Director of Education. In case, he finds that the appointment
was valid. In any case, the entire enquiry must be concluded as
expeditiously as possible and not later than 3 months from today”.
The issues and criteria that are to be considered in individual cases for
ad hoc appointments against substantive or short term vacancies, such
as the requirement to first fill up the available vacancies by
promotions, and only in the absence of eligible persons, by direct
recruitment, the need for intimation of vacancies to the Education
Services Commission through the DIOS, the time period allowed to
the Commission to appoint suitable candidates, before the
management could take steps for filling up vacancies, the need for
inviting applications for the vacancies through the employment
exchange and by publication in two local newspapers which have a
wide circulation in the State, the essential qualifications required for
different posts, the cases where prior or subsequent approvals by the
DIOS are needed, the position when a regular person is selected by the
Education Services Commission in the cases where an ad hoc
employee has been appointed, have been spelt out in depth by the Full
Bench of this Court in Kumari Radha Raizada and others v.
Committee of Management, Vidyawati Darbari Girls Inter College and
others,1994 (3) UPLBEC 1551, after considering the statutory
provisions contained in the U.P. Secondary Education Services
Commission and Selection Board Act, 1981, the U.P. Intermediate
Education Act, 1921, and the various U.P. Education Services
Commission (Removal of Difficulties) Orders.

In another Full Bench decision in Gopal Dubey v. District Inspector of
Schools, Maharajganj and
another, 1992(2) AWC 962, interpreting the
provisions of section 9 of the U.P. High Schools and Intermediate
Education Colleges (Payment of Salaries of Teachers and other
Employees) Act 1971 it has been held that unless the post for which
the salary has been paid is approved by the State government (Director
of Education), the payments made by the management of the
institution to such employees will not be re-reimbursed by the State.
The individual appointments and payments made therefore needed to
be tested on the aforesaid criteria spelt out in the Full Bench decisions.
If it was found that the appointments did not meet the said criteria, as
they had simply been made or continued pursuant to orders of in the
High Court in pending or disposed of writ petitions, which gave
directions to consider the representations of the petitioners, or to pay
salaries or to show cause etc., and where regular persons had been
appointed by the Commission, then the ad hoc appointments made by
the managements needed to be set aside. Steps for seeking vacation of
single or division bench High Court orders in Civil Writs and
Contempt petitions which were in the teeth of the decision of the Full
Bench in Radha Raizada and statutory provisions, by filing Special
Appeals before the Division bench or the Supreme Court were
required. But it appears that these steps have deliberately not been
taken in a mala fide manner, and the petitioners and others may have
colluded with educational authorities for obtaining favourable orders.

It must be stated emphatically that in any
view of the matter, there could be
absolutely be no justification for
payment of salaries for such teachers
from the General Provident Fund, from
which as the Chief Standing Counsel
admitted before the Single Judge in Bhim
Singh’s case, there had been illegal
withdrawals to the tune of Rs. 12 crores.

The said G.P.F. money is held in trust,
and the proper holders of the GPF will be
severely harmed if they are unable to
receive due payments at retirement or
otherwise. The DIOS in the contempt
petition could have pleaded inability to
comply with the order of the contempt
Judge, until budgetary allocation of
salaries were made by the State
government, or the management itself
could have made the necessary payments
from its own sources, if it was so
advised. Withdrawal of salaries from
funds earmarked for GPF of bona fide
employees could never be countenanced.

It was next submitted that the petitioners were merely teaching
and non teaching employees, managers and Principals of the
institutions concerned and were wholly unaware of the source
of the funds or that the disputed funds were earmarked for
G.P.F. Also the payments had been released by the DIOS,
Accounts officer and other educational authorities to save their
own skins in the contempt petition. The payments were not
made at the instance of the petitioners. Pressure was brought to
bear on the petitioners by the DIOS by orders dated
28/29.3.2006 and 18/20.4.2006 to submit the salary bills.

In our view considering the scale at
which the withdrawals have been made
from the GPF money, it is difficult to
believe that the petitioners were only
unwary and innocent recipients of the
money, and their hands were absolutely
clean. There was no need for the DIOS
and other educational authorities to have
gone out of their way for facilitating the
dubious appointments of the petitioners,
unless they were swayed by extraneous
considerations. The single judge appears
to have rightly observed in his order
dated 5.5.10 that “no fraudulent
withdrawal from the Government
Treasury through the office of the
District Inspector of Schools, Ballia is
prima facie possible from the General
Provident Fund unless officers and
employees working in the aforesaid two
offices collude with the private
management and the person concerned.”

Specifically it was argued by Sri. U.N. Sharma, learned Senior counsel
appearing for Vinayendra Upadhyay, that the FIR was unauthorised as
it has been instituted on the direction of the Single Judge in Civil
Misc. Writ petition No. 23250 of 2010, whilst hearing a service matter
and the said bench had no jurisdiction to issue a general direction for
lodging FIRs against known and unknown persons, particularly as the
petitioner in the said writ petition Bhim Singh had mainly sought a
relief of getting the GPF refunded from one Ashok Kumar Singh, who
was arrayed as respondent no.10 in the said writ petition. Such a
direction, if at all, could have been issued only by a bench hearing
Public Interest Litigations (PILs). Also no opportunity was given to
the petitioners to raise objections before the Single Judge bench which
had issued the general direction for lodging the FIRs and the said order
was in violation of the principles of natural justice, as they were not
parties in Civil Misc. Writ petition No. 23250 of 2010. For these
reasons the Division Bench in Special Appeal ( Defective ) No. 610 of
2010, by an order dated 30.6.2010 finally disposing of the Special
Appeal had stayed the operation of the order of the single judge in
Civil Misc. Writ Petition No. 23250 of 2010 directing registration of
the FIR so far as it related to the case of the petitioner Vinayendra
Nath Upadhyaya.

It may be noted that the prayers in the single judge writ petition No. 23250 of
2010, apart from the first prayer for a mandamus directing the concerned
authorities to recover the amount of G.P.F. which had been misappropriated
by respondent No. 10 (Ashok Kumar Singh) were to:

“b) issue a writ, order or direction in the nature of mandamus directing to the
competent authorities to take appropriate action against guilty
teachers/employees; Manager/ Principal and officials/Officers, who are
involved in said misappropriation of funds of G.P.F in the light of audit report
dated 4.12.2006 ( Annexure no.11 of the writ petition) and in the light of
order dated 4.1.2008, passed by Additional Director of Education(Annexure
no.12 of the writ petition);

c) issue a writ, order or direction which this Hon’ble Court may deem fit and
proper in the circumstances of the case”.

Thus the general direction for lodging the FIRs was issued in terms of the
audit report dated 4.12.06 which produced evidence of the diversion of funds
meant for GPF for payment of salaries of employees, whose appointments
were illegal and unauthorized, and false dates of appointment were mentioned
based on forged documents. There were instances of dishonest removal of
service papers to hamper audit etc.
The single judge further rightly justifies his order dated 13.5.2010 directing
registration of FIRs for embezzlement of public money by observing that Sri
M.C. Chaturvedi, Chief Standing Counsel “submits that the embezzlement of
the money from the GPF account is not in dispute, however the quantification
is to be done.”

In Nirmal Singh Kahlon v. State of Punjab, AIR 2009 SC 984 the Supreme
Court saw no difficulty in a private interest litigation being changed to a
public interest litigation, or in issuing directions of a general nature where
large scale systematic irregularities or fraud was noticed by the High Court. In
this regard it was observed in paragraph 32 : “The High Court while
entertaining the writ petition formed a prima facie opinion as regards the
systematic commission of fraud. While dismissing the writ petition filed by
the selected candidates, it initiated a suo motu public interest litigation. It was
entitled to do so. The nature of jurisdiction exercised by the High Court, as is
well known, in a private interest litigation and in a public interest litigation is
different. Whereas in the latter it is inquisitorial in nature, in the former it is
adversarial. In a public interest litigation, the court need not strictly follow the
ordinary procedure. It may not only appoint committees but also issue
directions upon the State from time to time. {See Indian Bank vs. Godhara
Nagrik Co-op. Credit Society Ltd. and Anr.
[2008 (7) SCALE 363] and Raju
Ramsing Vasave v. Mahesh Deorao Bhavpurkar and others
, [2008 (12)
SCALE 252].

Further in Dwarka Nath v. Income Tax Officer, Special Circle, D.
Ward, Kanpur, AIR
1966 SC 81 and Padma v. Hiralal Motilal
Desarda, AIR
2002 SC 3252 it has been held that in view of the
comprehensive phraseology in Article 226, which gives powers to the
High Court not only to issue specified writs, but to issue orders and
directions for “any other purpose”, an ex facie power is conferred on
the High Court to reach injustice wherever it is found, and to mould its
relief for meeting the complicated requirements of a case.
Also it has been laid down in A.R. Antulay v. Ram Das Sriniwas Nayak, AIR
1984 SC 718 in paragraph 6 that the concept of locus standi is foreign to
Indian jurisprudence, and if a cognizable offence has been committed, anyone
can put the criminal law in motion, unless the statute restricts the right to file
the FIR to a particular category of persons. The relevant passage reads thus:

“It is a well recognised principle of criminal jurisprudence that
anyone can set or put the criminal law into motion except where the
statute enacting or creating an offence indicates to the contrary.
Locus standi of the complainant is a concept foreign to criminal
jurisprudence save and except that where the statute erecting an
offence provides for the eligibility of the complainant, by necessary
implication the general principle get excluded by such statutory
provision. Punishment of the offender in the interest of the society
being one of the objects behind penal statutes enacted for larger good
of the society. Right to initiate proceedings cannot be whittled down.
circumscribed or fettered by putting in into a strait-jacket formula of
locus standi unknown to criminal jurisprudence. save and except
specific statutory exception.”

A Court in any jurisdiction is no less a citizen than a
private person. If the Court in the course of hearing a
case finds that a cognizable offence is committed by
some persons, it can never be barred from bringing
these facts to the notice of the investigating agency,
who in turn in view of section 154 of the Code is bound
to investigate the said offence, not because the order has
emanated from the Court, but because a cognizable
offence is disclosed.

In M. Narayandas v. State of Karnataka,(2003) 11 SCC 251 it has been
held that in view of section 154 (1) of the Code, a duty has been cast
on the investigating officer to reduce any “information” about the
commission of a cognizable case in writing. The expression ‘credible
information’ or reasonable complaint has deliberately not been used in
the provision by the legislature. Therefore the investigating officer has
no option but to lodge the FIR and to proceed with investigation if any
information about the commission of a cognizable offence is received.
Paragraph 33 of M. Narayandas may be usefully extracted here- “It is,
therefore, manifestly clear that if any information disclosing a
cognizable offence is laid before an officer in charge of a police
station satisfying the requirements of Section 154(1) of the Code, the
said police officer has no other option except to enter the substance
thereof in the prescribed form, that is to say, to register a case on the
basis of such information.”

So far as the other criticism against the single judge’s
order for having violated principles of natural justice
was concerned, it may be noted that as on examining
the petition filed by Bhim Singh and obtaining
responses from the Standing Counsel, the Single Judge
reached a conclusion about large scale irregularities in
appointments and illegal diversion of GPF money, he
could only order a general investigation and lodging of
FIRs against persons who may be involved in the crime.
As the single judge had no knowledge as to all the
persons who could be involved in the fraud, there was
no question of issuing notices to the potential accused at
that stage.

By the order dated 13.5.10 the single judge had simply directed that a “First
Information has to be lodged aginst the persons guilty and they must be
brought to book.” Thereafter if the investigating agency was prima facie
satisfied of the complicity of any person in an offence, there was no
requirement in law of providing an opportunity of hearing to the accused
before registration of the FIR.

At the stage of investigation the accused has no locus standi or right of prior
hearing before the FIR is lodged. In Union of India v. W.N. Chadha, AIR
1993 SC 1082, it has been clarified that an accused has no right to challenge
the letter rogatory issued by an Indian Court to a foreign Court for obtaining
evidence regarding the source of funds kept in the Swiss Bank. As no
deprivation of liberty or property was involved, hence the principle of audi
alteram partem, was not attracted.

The subsequent stage of investigation by the police is governed by the Code
of Criminal Procedure (hereafter called the Code). Chapter 12 of the Code
confers no right of prior hearing to the accused at the stage of investigation,
but the right of hearing is only provided when the Sessions Judge or
Magistrate considers whether to discharge or to frame a charge against the
accused under sections 227/228 or 239/240 of the Code. Under section 235(2)
in the case of a Sessions triable case, or section 248(2) in a warrant case
triable by a Magistrate again the accused have a right of being heard.
That the accused has no right of hearing at the stage of investigation and does
not come into the picture till the order taking cognizance has been passed has
also been emphasized in Chandra Deo Singh v. Prakash Chandra Bose, AIR
1963 SC 1430 Shashi Jena & Ors. v. Khodal Swain & Anr., (2004) 4 SCC
236 and a catena of other decisions.

Significantly it has been observed in paragraph 98 in Union of India v. W.N.
Chadha
:

98.”If prior notice and an opportunity of hearing are to be given to an
accused in every criminal case before taking any action against him,
such a procedure would frustrate the proceedings, obstruct the taking
of prompt action as law demands, defeat the ends of justice and make
the provisions of law relating to the investigation as lifeless, absurd
and self-defeating. Further, the scheme of the relevant statutory
provisions relating to the procedure of investigation does not attract
such a course in the absence of any statutory obligation to the
contrary.”

It also appears to us that the order in Special Appeal
(Defective) No. 610 of 2010, dated 30.6.2010 staying the
operation of the order of the single judge in Civil Misc. Writ
Petition No. 23250 of 2010 directing registration of the FIR so
far as it related to the case of the petitioner Vinayendra Nath
Upadhyaya was passed as the division bench was under the
impression that no action had yet been taken on the direction of
the single judge for registration of the FIR. Thus it was
observed in the order in the Special Appeal (Defective), that :

“Sri Pandey, learned Advocate rightly points out that against
the report no stay has been given. That appears to be rightly so.
Once there is order of this court directing lodging of first
information report and that has been executed/ complied there
may not be possibly any occasion for any co-ordinate bench to
grant relief.” (Emphasis supplied). Thus the Special Appeal
Court was proceeding on the footing that no FIR had been
registered till then. This position was factually incorrect,
because pursuant to the order of the single judge dated
13.5.2010, the FIR had already been registered at Case Crime
No. 271 of 2010 on 23.5.10, whereas the order disposing of the
Special Appeal was passed only on 30.6.2010.

After the registration of the FIR, the said FIR could only be challenged
before a bench hearing criminal writs, and not before a bench
disposing of a Special Appeal against an order of a single judge
directing registration of the FIR.

Another argument raised by Sri V.P. Srivastava was that as an earlier
FIR dated 25.4.2002 naming 11 persons had been lodged against some
of the petitioners for obtaining ad-hoc appointments illegally in which
the arrests had been stayed in various writ petitions and after charge
sheets, proceedings had been stayed on applications under Section 482
Cr.P.C., the present FIR could only be considered an enlargement of
the earlier FIR and it could not have been filed as it was in violation of
the law laid down in T.T.Antony v. State of Kerala and others etc.,
(2001) 6 SCC 181 and Upkar Singh v. Ved Prakash and others, (2004)
13 SCC 292. It was argued that a second FIR is only permissible when
a cross version of the incident is given by the accused, and there can
be no second FIR for introducing some other material or for
implicating additional accused with respect to the earlier incident.
It may be noted that in the decision of Upkar Singh itself, it is
mentioned in paragraphs 21 and 22 as corrected, vide Official
Corrigendum No. F.3/Ed. B.J./86/2004 that:

“21. From the above it is clear that even in regard to a complaint
arising out of a complaint on further investigation if it was found that
there was a larger conspiracy than the one referred to in the previous
complaint then a further investigation under the Court culminating in
another complaint is permissible.

22. A perusal of the judgment of this Court in Ram Lal Narang’s case
(supra) not only shows that even in cases where a prior complaint is
already registered, a counter complaint is permissible but it goes
further and holds that even in cases where a 1st complaint is registered
and investigation initiated, it is possible to file a further complaint by
the same complainant based on the material gathered during the course
of investigation. Of course, this larger proposition of law laid down in
Ram Lal Narang’s case is not necessary to be relied on by us in the
present case. Suffice it to say that the discussion in Ram Lal Narang’s
case is in the same line as found in the judgments in Kari Choudhary
and State of Bihar v. J.A.C. Saldanna (supra). However, it must be
noticed that in T. T. Antony’s case Ram Lal Narang’s case was noticed
but the Court did not express any opinion either way.” (Emphasis
added).

Recently in Nirmal Singh Kahlon v. State of Punjab,
AIR
2009 SC 984 , the case law on the point has been
reviewed, and the Apex Court, has re-affirmed the
above noted view in Upkar Singh, and opined that if the
new conspiracy is different or covers a larger canvas,
and even some new accused are added (although some
accused may be common in the two FIRs), there is no
fetter on lodging the second FIR.

In the instant case we find that the earlier FIR dated 25.4.02 nominated
10 named government employees, 7 of whom were clerks, an accounts
officer, and two accountants. The said 10 accused persons are
completely different from the three government officials, i.e. the
DIOS, Accounts officer and accounts clerk named in the present case.
There are no allegations in the earlier case of diversion of General
Provident Fund Money, but the allegations were of getting fake
appointments and payments made to 131 persons who were ineligible
for employment. There was thus no difficulty in the second FIR being
registered.

Contrary to the aforesaid submission of duplication of FIRs, Sri G.S.
Chaturvedi has argued that the FIR should be quashed because for
multiple causes of action, and multiple conspiracies of unrelated
teachers from different educational institutions with educational
authorities in Ballia a single FIR at crime No. 271 of 2010 had been
lodged in the present case, and that there should have been multiple
FIRs. He placed reliance on a decision of this Court in Rashid Aziz v.
State of U.P.,
1997 (34) ACC 726. The FIR in the said case appears to
have been quashed with liberty to file separate FIRs principally
because the FIR by the District Magistrate in Rashid Aziz was
unwarranted as the DM himself was the sanctioning authority in that
case under section 39 of the Arms Act.

Moreover, looking to the complex nature of allegations, and the case
being in the nature of a scam, of diversion of GPF money to
wrongfully appointees, where the modus operandi of the criminal
activity alleged may have been similar, the investigation by a single
agency was desirable. Indeed scams of such magnitude are usually
investigated together by pivotal agencies like the CBI or the CBCID.
Questions relating to misjoinder of charges under section 223 of the
Code can be agitated at the stage of framing of charges, and not at the
initial stage of investigation. There is also nothing to prevent the
investigating officer from filing separate charge sheets in exercise of
his powers under section 173 (2) of the Code, if he is so advised. It is
open for the supervisory agencies in the police establishment to look
into this issue, and give appropriate guidance to the investigating
officer.

In Satvinder Kaur v. State (Government of NCT, Delhi), AIR
1999 SC 3596, where the goods in the marriage had been
entrusted in Patiala, but the FIR was lodged in Delhi, the lack
of territorial jurisdiction with the investigating officer, was
held not to be a ground for refusing to lodge the FIR or to
investigate the case. In Union of India. v. Prakash P. Hinduja,
AIR
2003 SC 2612, relying on H.N. Rishbud v. State of Delhi,
(AIR 1955 SC 196) it has been held that any illegality in an
investigation does not vitiate the trial, unless it has caused a
miscarriage of justice. In the latter case, the investigation into a
case under the Prevention of Corruption Act was conducted by
an officer below the rank of Dy. Superintendent of Police. This
was in violation of section 5-A of the Prevention of Corruption
Act. It was observed that even an invalid investigation does not
vitiate an order of cognizance, unless miscarriage of justice has
resulted.

It was further submitted by Sri G.S. Chaturvedi, that offences
under the provisions alleged i.e 409, 467, 468, 419 and 420
IPC are not made out. We refrain from giving elaborate
comment on this point as it may prejudice, the investigation or
trial. Suffice it is to state that the money meant for GPF was
money which was to be held in trust for the bona fide
employees and was to be utilized in a particular manner in
accordance to the directions in law. There would be a criminal
breach of trust, if the said money was diverted for payment of
salaries of some employees. As per the FIR there are
allegations of preparation of forged documents by mentioning
false dates of appointments and for withdrawing the GPF etc.
which have been made for causing wrongful losses to the
public exchequer or to bona fide employees. Thus prima facie
it cannot be said that offences under the aforesaid sections are
not disclosed.

In Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259 it has been
observed that there cannot be a hypertechnical approach at the stage of
investigation, and whether an offence under a particular section is
disclosed cannot be sieved through a cullender of the finest gauzes at
this stage. Thus in paragraph 12 at page 263 the aforesaid law report
notes: “The High Court seems to have adopted a strictly
hypertechnical approach and sieved the complaint through a cullendar
of finest gauzes for testing the ingredients under Section 415 IPC.
Such an endeavour may be justified during trial, but certainly not
during the stage of investigation.”

It was also submitted by Sri G.S. Chaturvedi, that the payments
were made and salaries paid from the GPF accounts only for
compliance of the Court’s orders and the said actions were
protected under section 78 of the Penal Code.

As we have already clarified above, salaries cannot be paid arbitrarily
from any source or account, and withdrawal of money from the GPF
account, which is money held in trust for the regular bona fide
employees would amount to criminal breach of trust. Moreover,
Section 78 of the Penal Code only takes away the criminality of an act
done in good faith in pursuance of or which is warranted by the
judgment or order of a court. The act of giving appointments to
employees who may not be entitled to employment under the statutory
provisions, only on the strength of some interim or final orders of the
Court, and then making payments to them from the GPF money of
bona fide employees, which is a criminal act, as it is against the law or
directions as to how a trust has to be executed, can never be described
as an act in good faith justified by Court orders.

It was next submitted by Sri V.P. Srivastava, that there was no
embezzlement, but only a temporary withdrawal of GPF sums for
ensuring compliance of the High Court’s orders.

Even a temporary unlawful diversion of money perhaps with the intent
to restore it in future, is a dishonest act which would amount to an
offence. In Ram Narain Poply v. CBI, 2003 Cri.L.J 4801 it has been
observed that “When a person misappropriates to his own use the
property that does not belong to him, the misappropriation is dishonest
even though there was an intention to restore it at some future point of
time.”

One last submission was raised by learned counsel that in several writ
petitions arising out of the present crime number the arrest of the
petitioners have been stayed by different orders of this Court.
We notice that in some cases the writ petitions have been dismissed
straight away. There are other cases on which the petitioners’ counsel
rely, where the writ petitions have been dismissed or disposed of, with
an interim relief, that till submission of charge sheets their arrests
should be stayed, without even saying anything on the merits of the
matter. The said orders are in the teeth of the decision of the Full
Bench of this Court, in Ajeet Singh v State of U.P., (2007 Cri.L.J.170)
(FB), which has disapproved of orders orders staying arrests by non-
reasoned orders whilst dismissing or disposing of the petition. Relying
on the decisions in State of Orissa v. Madan Gopal Rungta, AIR 1952
SC 12, Amarsarjit Singh v. State of Punjab, AIR 1962 SC 1305, State
of Orissa v. Ram Chandra Dev, AIR
1964 SC 685, State of Bihar v.
Rambalak Singh
“Balak”, AIR 1966 SC 1441, Premier Automobiles
Ltd. v. Kamlakar Shantaram Wadke, AIR
1975 SC 2238 it is observed
in paragraph 83 by the Full Bench: “the writ Court has no competence
to issue any direction protecting the right of the petitioner interregnum,
for the reason that writ does not lie for granting only an interim relief
and interim relief can be granted provided the case is pending before
the Court and rights of the parties are likely to be adjudicated upon on
merit”

Considering the scope of interference under Article 226 of the
Constitution, and after the considering the conspectus of authorities on
the point, it has been observed in paragraph 19 by the Full Bench in
Ajeet Singh’s case:

19. “The power of quashing the criminal proceedings has to be
exercised very sparingly and with circumspection and that too in the
rarest of rare cases and the Court cannot be justified in embarking
upon an enquiry as to the reliability or genuineness or otherwise of
allegations made in the F.I.R. or complaint and the extraordinary and
inherent powers of Court do not confer an arbitrary jurisdiction on
the Court to act according to its whims or caprice. However, the
Court, under its inherent powers, can neither intervene at an uncalled
for stage nor it can ‘soft pedal the course of justice’ at a crucial stage
of investigation/proceedings. (Vide State of West Bengal v. Swapan
Kumar Guha, AIR
1982 SC 949; Madhavrao Jiwaji Rao Scindia v.
Sambhajirao Chandrojirao Angre, AIR
1988 SC 709; The Janata Dal
v. H. S. Chowdhary, AIR
1993 SC 892; Mrs. Rupan Deol Bajaj v.
Kanwar Pal Singh Gill, AIR
1996 SC 309; G. Sagar Suri v. State of
U.P., AIR
2000 SC 754 : (2000 All LJ 496); and Ajay Mitra v. State of
M.P., AIR
2003 SC 1069).”

We may mention here that after extensive hearing to the parties, and
reserving the case for orders on 19.7.2010, an affidavit dated 20.7.10
was filed in Cr.Misc. Writ Petition No. 9873 of 2010, Vinayendra
Nath Upadhyay v State of U.P. and others annexing therein an order of
the Apex Court dated 19.7.10 in Special Leave to Appeal (Crl) No(s)
5429/2010, Om Prakash Chaubey v. State of U.P. & Ors. The said
order read as follows:

“Issue notice.

By way of ad-interim relief, it is directed that the petitioner shall not
be arrested.”

In deference to the aforesaid interim order of the Supreme Court
issuing notice on the aforesaid appeal and staying the arrest of the
appellant therein, we had granted an interim stay of arrest of the
petitioners till 4.8.2010 by our orders dated 22.7.2010 and 28.7.2010.
But subsequently we have been informed by the High Court’s
Computer section, that after a lengthy hearing by the Supreme Court
on 19.7.2010 in the case of Dr. Lalendra Pratap Singh, SLP (Criminal)
5412 of 2010, the Principal of Sukhpura Inter College, who was a co-
accused along with the petitioners in the same Crime number and
whose Criminal Writ petition was earlier dismissed by the High Court,
which had been challenged in the Supreme Court. When the Apex
Court was about to dismiss the petition, the petitioner’s counsel made
an oral prayer for withdrawing his petition, whereupon the bench
consisting of Hon’ble Mr. Justice Harjit Singh Bedi and Hon’ble Mr.
Justice C.K. Prasad, dismissed the petition as withdrawn by the
following order :

UPON hearing counsel the Court made the following
ORDER
“After arguing the matter at very length and
when we were about to make an order of
dismissal, the learned counsel for the petitioner
prays that the petition be dismissed as
withdrawn. Ordered, as prayed for.”

In view of the aforesaid it cannot be said that the First Information
Report and other material on record does not disclose any cognizable
offence, and that any ground exists either for questioning the
investigation or for staying the arrests of any of the petitioners. We
therefore dismiss all the writ petitions. The interim orders granted
earlier are vacated. The investigating agency is directed to proceed
expeditiously in concluding the investigation.

It is also made clear that the observations
hereinabove have only been made in answer to
the submissions raised by learned counsel. The
investigating agency and the trial court are
expected to apply their independent minds for
reaching their own conclusions.

The records of the single judge C.M.W.P. No. 23250 of 2010, Bhim
Singh v. State of U.P., Special Appeal (Defective) No.
610 of 2010
and also of Civil Misc. Contempt Petition No. 1724 of 2004 which
were earlier summoned by this Court may now be sent back to their
appropriate sections.

Order Date :- 4.8.2010
Ishrat


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