{"id":188638,"date":"2010-05-10T00:00:00","date_gmt":"2010-05-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/syed-qamar-ahmad-vs-state-of-u-p-others-on-10-may-2010"},"modified":"2019-03-02T18:16:01","modified_gmt":"2019-03-02T12:46:01","slug":"syed-qamar-ahmad-vs-state-of-u-p-others-on-10-may-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/syed-qamar-ahmad-vs-state-of-u-p-others-on-10-may-2010","title":{"rendered":"Syed Qamar Ahmad vs State Of U.P. & Others on 10 May, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Syed Qamar Ahmad vs State Of U.P. & Others on 10 May, 2010<\/div>\n
                                     1\n\n\n\n\n                               RESERVED\n\n           Criminal Misc. Writ Petition No. 13848 of 2009\n\nSyed Qamar Ahmad......................................Petitioner\n\n                                  Versus\n\nState of U.P. and others..............................Respondents.\n\n\nHon. Imtiyaz Murtaza J.\nHon. S.S.Tiwari, J.\n<\/pre>\n
                (Delivered by Hon. Imtiyaz Murtaza J.)<\/p>\n
      This lachrymose writ petition has been preferred by the
\nshocked uncle of a young budding officer whose career was full of
\ninfinite possibiility and pregnant with promises. The deceased at
\nthe relevant time was posted at Mahoba as Asstt. Manager in the
\nU.P. Cooperative Federation. He ended his life at age of 28 years,
\nallegedly being wearied by endlessly illicit demands of the
\nsuperiors. It is alleged that the deceased initially tried to cope with
\nthe demand despite being aghast at the rampant corruption but
\nsubsequently took the extreme step of ending his life finding
\nhimself unable to bear the load on his mind. In the suicide note,
\nthe deceased tweaked by his conscience has unburdened his mind
\nabout the rampant corruption in the department.\n<\/p>\n
      The grieving uncle, it would transpire, has knocked the door
\nof this Court disenchanted by the reluctance of the investigating
\nagency in extending the long arm of law to the named persons
\nwho on account of their status have managed to evade appearing
\nfor interrogation. The relief sought is for a writ of mandamus
\ncommanding the respondent 1 to transfer the investigation from
\ncivil police to any other independent investigating agency attended
\n                                  2<\/span><\/p>\n
with the relief of a writ of mandamus directing the respondents to
\nsubmit the progress report in the case.\n<\/p>\n
     The deceased is Syed Gyas Ahmad alias Gaus who while
\nserving at Mahoba had his residence at Kareli Allahabad and he
\nhad come back to his residence at Kareli from Mahoba on
\n3.4.2009. On 4.4.2009, he committed suicide at 11 a.m by
\nhanging himself. According to information furnished to Police
\nStation Kareli in writing by the petitioner, it was revealed that he
\nwas informed by his wife that the deceased was hanging by rope
\nwhich was tied to the peg of the ceiling of the room situated on the
\nfirst floor at C 247 G.T.B.Nagar Kareli Allahabad attended with
\ninformation that it seemed that he was dead. Upon receipt of this
\ninformation, the petitioner immediately rushed to the scene of
\noccurrence where he saw his nephew hanging with ropes tied
\naround his neck. The police upon reaching the scene of occurrence,
\nloosened the rope and took the body down and necessary
\nformalities were undertaken and completed. According to the
\nreport prepared by Sub Inspector, the search of the body yielded a
\npiece of paper the contents of which were read in the presence of
\nfamily members of the deceased and the people who had collected
\non the spot. Thereafter, it would transpire from the record, the
\nbody was sent for post mortem which was conducted on 4.4.2009
\nat 4.30 p.m.<\/p>\n
     On 4.4.2009, a written application was made to Senior Supdt
\nof Police Allahabad by the petitioner the quintessence of which is
\nthat his nephew used to lament that his seniors who were named
\nby their designation namely, Managing Director, Managing Director
\n(Administration) and Regional Manager (who are arrayed as
\nrespondents 5 to 7 in this petition) had been exerting pressure and
\ndemanding money studded with threat to place him under
\n                                  3<\/span><\/p>\n
suspension in case of his failure to arrange money for them. It is
\nalso mentioned that his nephew had come to him at NOIDA in the
\nlast month and discussed with him the problem stating that Distt
\nMagistrate Mahoba had made a telephonic call and demanded to
\narrange for one bag of sugar for use in the marriage of his orderly.
\nThe deceased, it is alleged, had to meet the demand by paying a
\nsum of Rs. 2400\/- out of his own packet. It is further alleged that
\non 29.3.2009 when the petitioner rang up the deceased, he
\nappeared perturbed and told him on phone that his superiors were
\ndemanding to rake up Rs. 10,000\/- immediately attended with
\ninformation that in case his failed to meet the demand, they would
\nspoil their career. The deceased further disclosed to the petitioner
\nthat within a span of seven months, he had to pay Rs. 35,000\/- to
\nthe Distt Magistrate Mahoba and other superior officers out of his
\nown packet and a sum of Rs. 13,000\/- was collected from the
\nsubordinate officials. It was also informed that his superiors were
\ndemanding Rs. 150\/- per quintal in the ensuing purchase of wheat.
\nTo the similar effect is the application made by the mother of the
\npetitioner addressed to D.I.G. Zone Allahabad.\n<\/p>\n
     The suicide note left behind by the deceased, to rephrase it,
\nwould agreeably read studded with prologue sentence “I have
\ngiven a serious thought but I am at a loss to understand (how to
\ndeal with the situation). I have come to such a pass in my longing
\nto acquire a government job that I can neither abandon the job
\nnor can keep up with the job. I am being called on phone from the
\nHeadquarters pressurizing to arrange for money. Where-from
\nshould I arrange for money, they are not concerned with, whether
\nI should indulge in pilferage or misappropriation. I dread I may not
\nget trapped in criminal case which may result in lodging of F.IR by
\nlocal administration. I am not inclined to indulge in any such
\nactivities. I have already collected and paid an amount to the tune
\n                                    4<\/span><\/p>\n
of   Rs.   48000\/-   to   the   Managing   Director,   A.M.D   ,   G.M.
\n(Administration) out of which certain amount was collected from
\nthe office. Out of my total salary of Rs. 12000\/- out of which on an
\naverage a sum of Rs. 5000\/- goes to the pocket of the authorities.
\nI can understand that people would blame me that I could not
\ncope with the government job in case I decide to abandon the job.
\nI am fed up with the rampant corruption in the P.C.F and being
\nunable to cope with it, I am committing suicide. My last will is that
\nwhatever is available in my fund, the same should be disbursed to
\nmy younger brother Mohd. Sufiyan. The note further mentions that
\nin case demand of headquarters is not met, he is being threatened
\nwith tarnishing his character roll attended with the threat to
\nsuspend him.”\n<\/p>\n
      We have heard learned counsel for the petitioner and also
\nlearned counsel appearing for the State. We have also perused the
\nrecord and the police papers.\n<\/p>\n
      The prayer quintessentially made in this petition is for
\ntransfer of investigation to another agency as the local police it is
\nalleged, has wilted under pressure elaborating that the accused
\nherein are highly placed bureaucrats and have enough clout in the
\ncorridors of powers and those at the helm of affairs in the corridor
\nof powers that be, are interfering in the fair investigation from
\nbehind the curtains. It is further alleged that the suicide note is a
\nversion of dying man who cannot tell a lie when he himself was
\nending his life. It is further submitted that the accused persons
\nhave continued to evade the captivity and despite there being no
\nquestioning from any of the accused, the police still submitted the
\nfinal report without any valid basis. It is further alleged that the
\ndeceased was very upright and had joined the service with certain
\nhopes and expectations of serving the public but his dreams were
\n                                    5<\/span><\/p>\n
shattered by the corruption rampant in the department. It is also
\nargued that the pressure on local police is writ large from the very
\ninception and the police has, from the very inception, attempting
\nto close the chapter by filing final report but could not do initially
\non account of interference by this Court by which the Court was
\npleased to direct change of investigating officer but it only delayed
\nsubmission of the final report and it was owing to pressure from
\nthe higher ups the police has again filed final report.\n<\/p>\n
     Per contra, Sri S.G.A. Hasnain, Additional Advocate General
\nappearing for the State of U.P vehemently argued that the
\ninvestigation has been conducted by the police strictly according to
\nthe provisions of the Cr.P.C. and the final report has been
\nsubmitted before the Special Judge and it is none of the business
\nof any of the person to canvass its validity in the jurisdiction of this
\nCourt under Article 226 of the Constitution of India nor can this
\nHon. Court interfere therein. The next argument advanced across
\nthe bar is that it is the Magistrate who is empowered under section
\n156 (3) Cr.P.C to direct or redirect the investigating agency to
\nmake proper and fair investigation and monitor the investigation.
\nThe next submission is that after filing of the final report or charge
\nsheet as the case may be it lies within the power of the Magistrate
\nwho can go into the question whether investigation is fair or not
\nand whether certain aspect or certain relevant facts or statements
\nhave or have not been touched upon in the investigation. It is
\nfurther argued that if any party is aggrieved by the order of the
\nMagistrate, he can canvass the validity of the order under section
\n482 Cr.P.C or under Article 226 of the Constitution of India.\n<\/p>\n
     The investigating officer who holds the office of Circle officer
\npolice, has filed affidavit sworn by him in which he has clearly
\nstated that he has conducted investigation in utmost fair manner
\n                                   6<\/span><\/p>\n
and he also interrogated various employees and officials of the
\ndepartment and none of them testified to the demand of money by
\nhigher officers or parting with money out of his own salary for
\nbeing pocketed by the higher officers. He also stated that the
\ndemand of illegal gratification has been propped up by the family
\nmembers and family friends of the deceased. He has also referred
\nto various calls made by the officers to the deceased. Both on
\nmobile and land line which according to the investigating officer
\nrelated to a period three months prior to the suicide by the
\ndeceased. In para 10, the investigating officer has stated that the
\ndeceased except making allegations in the suicide note, is not
\nfound to have made any complaint against any of the officers of
\nthe department. He also stated that in the course of investigation,
\nhe interrogated 70 persons in all. It is nowhere stated that accused
\npersons were also interrogated in connection with the allegation of
\ndemand as alleged in the suicide note. He also referred to the
\namount in deposit which was to the tune of Rs. 50,000\/- in the
\nBank account of the deceased and the point urged is that the
\ndeceased did not disclose in the suicide note as to from where he
\ngratified the so-called illegal demand of the officers of the
\ndepartment. The suicide note is the last words uttered by the
\ndeceased and it cannot be taken to be a chronicle of the
\nexhaustive details nor can it be a catalogue of everything including
\nminor particulars. In para 14, he refers to application dated
\n4.4.2009 made in the aftermath of the suicide and it is stated that
\nthe allegations contained in the said application were also taken
\ninto consideration in the course of investigation but no evidence to
\nprop up those allegations is forthcoming. It is nowhere stated that
\nthe   accused   persons   named   in   the   F.I.R   have   also   been
\ninterrogated in the course of investigation by the Investigating
\nofficer.\n<\/p>\n
                                   7<\/span><\/p>\n
     From the facts on record, and also from the various affidavits
\nincluding the affidavit of the investigating officer, the substance of
\nwhat can be gleaned is that no evidence about illegal demand by
\nthe officers is forthcoming but at the same time, the element of
\nabetment would clearly transpire from the facts on record.\n<\/p>\n
     One of the arguments advanced across the bar is that the
\nHigh Court has no power to direct investigation by the C.B.I and to
\nprop up his submission, he has elaborately cited the provisions of
\nthe Cr.P.C dwelling upon the powers of the Magistrate. Suffice it to
\nsay without burdening the judgment with copies decisions on the
\npoint that it must be remembered the jurisdiction assigned to High
\nCourt under Article 226 is the extra ordinary jurisdiction. The Court
\ntherefore has powers apart from express provisions of law which
\nare necessary for proper discharge of functions and duties imposed
\nby law. Such inherent or extra ordinary jurisdiction are intended to
\nbe exercised to do the right and to undo a wrong in course of
\nadministration of justice on the principle “quando lex aliauid
\nalicui concedit concedere videtur et id sine quo res ipsae
\nesse non potest” (where the law gives a person anything it gives
\nhim that without which it cannot exist). It must also be
\nremembered that this Court under Article 226 does not function as
\na court of appeal or revision but has to exercise powers ex debito
\njustitiae to do real and substantial justice for the administration of
\nwhich alone court exists. In Civil Appeal Nos. 6249-6250 of
\n2001 State of West Bengal and others v. The Committee for
\nProtection of Democratic Rights, West Bengal and others,
\nthe Apex Court in para 35 observed as under:\n<\/p>\n
           “As regards the power of judicial review conferred
\n           on the High Court, undoubtedly they are, in a
\n           way, wider in scope. The High Courts are
\n           authorized under Article 226 of the Constitution,
\n           to issue directions, orders or writs to any person
\n                                   8<\/span><\/p>\n
           or authority, including any government to enforce
\n           fundamental rights and “for any other purpose:.It
\n           is manifest from the difference in the phraseology
\n           of Articles 32 and 226 of the Constitution that
\n           there is a marked difference in the nature and
\n           purpose of the right conferred by these two
\n           Articles. Whereas the right guaranteed by Article
\n           32 can be exercised only for the enforcement of
\n           fundamental rights conferred by Part III of the
\n           Constitution, the right conferred by Article 226
\n           can be exercised not only for the enforcement of
\n           fundamental rights, but “for any other purpose”
\n           as well i.e. for enforcement of any legal right
\n           conferred by a Statute etc. “<\/p><\/blockquote>\n
     The next argument relates to the powers of the Magistrate as
\ndiscussed above. Coming to the facts on record the genesis of the
\ncase is the suicide note. There is no gainsaying that it is open to
\nan aggrieved person to exercise his legal right by filing the protest
\npetition in case, he nurtures grievance that the investigation
\nconducted by the police is not fair. As quoted above, the suicide
\nnote without mincing words refers to the background in which the
\ndeceased took the extreme step of taking away his own life by
\ncommitting suicide. The deceased has named the accused persons
\nby designation. Ex-facie, the suicide note unequivocally refers to
\nthe acts of the accused and the roles played by them which
\nultimately led the deceased for taking extreme steps of taking
\naway his life by committing suicide. It is again argued that it
\nleaves no manner of doubt from the record that the police has not
\ninterrogated any of the accused at any point of time. However,
\naccording to the own submission of learned Addl. Advocate
\nGeneral, all these aspects have to be looked into by the Special
\nJudge where the final report has been submitted. The learned
\nAdditional Advocate General admitting the legal position has also
\nadvanced the submission that even if the police files final report, it
\nis the duty of the Magistrate to take appropriate action thereon. It
\nis also admitted that the Magistrate would initially issue notice to
\n                                  9<\/span><\/p>\n
aggrieved person who is at liberty to file protest petition
\ncanvassing the shortcomings if any, of the investigation.\n<\/p>\n
     From a perusal of the materials on record and also from a
\nclose scrutiny of the submissions advanced across the bar, the
\nposition that is distilled and worthy of notice is that the F.I.R
\ninitially was registered under section 306 IPC and section 7 of the
\nPrevention of Corruption Act was subsequently added. If the facts
\non record are literally taken at its face value, it is not the case
\nwhere provisions of section 7 of the Prevention of Corruption Act is
\nattracted. Learned Addl. Advocate General has also conceded that
\nfrom a perusal of the suicide note, the ingredients of Prevention of
\nCorruption Act are not disclosed or made out. The counsel for the
\npetitioner emphatically stated that the perusal of suicide note
\nattracts the provisions of section 384 IPC. The Section 384 IPC
\nbeing germane to the issue involved in this case is abstracted
\nbelow.\n<\/p>\n
           “384.     Punishment        for   extortion-\n<\/p>\n
           Whoever commits extortion shall be
\n           punished with imprisonment of either
\n           description for a term which may extend to
\n           three years, or with fine, or with both.”\n<\/p>\n
     It is stated across the bar by the learned Counsel appearing
\nfor the State that the final report has been submitted by the police
\nbefore the Special Judge (Prevention of Corruption Act). On being
\nconfronted and on adverting his attention to his submissions that
\nthe ingredients of offence under the Prevention of Corruption Act
\nare not disclosed, he evaded a direct reply on this crucial aspect.
\nHaving considered the materials on record, we too are of the
\nopinion that if no offence under the Prevention of Corruption Act is
\nfound to have been    made out, the police should have filed the
\n                                    10<\/span><\/p>\n
final report before the learned Magistrate concerned and not
\nbefore the Special Judge (P. C. Act) inasmuch as cognizance, if at
\nall required, pursuant to the final Report in the absence of
\nsanction for prosecution cannot be taken by the Special Judge. Yet
\nanother aspect to be taken into reckoning is that as conceded by
\nthe learned Addl. Advocate General that ingredients of Prevention
\nof Corruption act are not attracted, by this reckoning, the Special
\nJudge cannot take cognizance under section 306 or section 384
\nIPC. In elucidating this position, we may refer to section 28 of the
\nPrevention of Corruption Act and it being relevant, is excerpted
\nbelow.\n<\/p>\n
           “28. Act to be in addition to any other law:- The
\n           provisions of this Act shall be in addition to, and not in
\n           derogation of any other law for the time being in force,
\n           and nothing contained herein shall exempt any public
\n           servant from any proceeding which might, apart from
\n           this Act, be instituted against him.”<\/p><\/blockquote>\n
     The position as summed up by above discussion, boils down
\nas under that the suicide note clearly refers to the acts of the
\naccused and th roles played by them and further that from a
\nperusal of the suicide note is attracted the ingredients of section
\n384 IPC and also that as conceded by the Addl. Advocate General,
\nthe provisions of Prevention of Corruption act are not attracted and
\nin this view of the matter, the final report has necessarily to be
\nfiled before the Magistrate.\n<\/p>\n
     In the facts and circumstances of the case, without delving
\ninto the merits of the argument whether submission of final report
\nin the matter by the police is justified or not, and whether it is a fit
\ncase for being referred to any other agency for investigation afresh
\nor not, the petition is disposed of with the direction that the
\n                                  11<\/span><\/p>\n
Special Judge shall return the final report for re-presentation to
\nthe appropriate court or the prosecuting agency shall withdraw
\nFinal report filed in the Court of Special Judge (P. C. Act) and file
\nthe same anew before the Magistrate concerned within 30 days
\nfrom today. The Magistrate will pass appropriate orders in
\naccordance with law however without being influenced by any of
\nthe observations made in the body of this judgment.\n<\/p>\n
     The petition is disposed of finally in terms of the above
\norders.\n<\/p>\n
MH
\nMay 10…..2010.<\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Syed Qamar Ahmad vs State Of U.P. & Others on 10 May, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-188638","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nSyed Qamar Ahmad vs State Of U.P. & Others on 10 May, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/syed-qamar-ahmad-vs-state-of-u-p-others-on-10-may-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Syed Qamar Ahmad vs State Of U.P. & Others on 10 May, 2010 - 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