Akhilesh Kumar Gupta vs State of U.P. and Others

Surendra Singh, J.—In this writ petition prayer has been made to quashthe F.I.R. in Case Crime No. 246 of 2010 under Sections 166, 167 and 218, I.P.C. and u/s 7/13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 Police Station Jewar, districtGautam Buddh Nagar.

The background facts giving rise to aforesaid case as narrated inthe F.I.R. may be put briefly;

One Abdulla had two sons, namely Mahbulla and Karimullah.Mahbulla remained unmarried and died issueless 35 years before.Karimullah being sole heir and representative inherited the share of immovable property including the land (No. 971) of khata No. 766 situate at village Rabupura, Pargana and Tehsil Jewar, district Gautam BuddhNagar. After death of Kari mullah, informant and his brothers became the owner and are in possession over the land in question. There after Suleman and Ishaq, the brothers of informant Kallu also died, so their sons and wives inherited their share. Sabir son of Babu and Smt. Anwari wife of Babu having No. connection with the deceased Mahbulla in any manner got their names entered surreptitiously in the revenue recordsP.A.-11B in the connivance of the accused persons who are tehsil staff,on 20.10.2009. Although later on the order dated 20.10.2009 was seta side by the Tehsildar vide order dated 25.11.2009 on an application of the informant, but on 23.10.2009 aforesaid Sabir and Smt. Anwari managed to execute a sale deed of the land in dispute in favour of one Ran Singh son of late Soran Singh on the basis of forged and fictitious entries in the revenue records. It is further alleged that accused persons would have obtained some amount and hatched up a conspiracy and without holding any inquiry made forged and fictitious entries in the revenue record in favour of Ran Singh and Smt. Anwari. Hence, present F.I.R. was lodged on 30.5.2010 on the application u/s 156(3), Code of Criminal Procedure by the informant, Kallu at Police Station Jewar, districtGautam Buddh Nagar against the Petitioner (Naib Tehsildar) and three other Tehsil staff under Sections 166, 167 and 218, I.P.C. and u/s 7/13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.

The Counsel for the Petitioner opened vigorously the following submissions;

(1) Inasmuch with regard to the said forged entries in the revenue record a case was already registered at Case Crime No. 101 of 2010 on 5.5.2010 at Police Station Rabupura, district Gautam Buddh Nagar under Sections 420, 467, 468 and 471, I.P.C. at the instance of one Shaukat against 11 other named persons and charge sheet has also been submitted against 8 persons only and the investigation against the Petitioner is said to be still pending.

More than one F.I.R. is not permissible under the law to be registered regarding same incident or the incidents.

(2) The present F.I.R. was lodged after inordinate delay of about 7 months and so such wrong, if any, is not actionable after lapse of so many months. Eventually it casts shadow of doubt upon its authencity and reliability.

(3) The Special Judge had No. jurisdiction to issue directions for registration of F.I.R. and its investigation u/s 156(3), Code of Criminal Procedure containing the allegations of committing the offence under the Prevention of Corruption Act, 1988.

(4) The application u/s 156(3), Code of Criminal Procedure disclosing the commission of cognizable offence was liable to be rejected on the ground that sanction of the appropriate Government or authority ought to have been obtained before taking cognizance.

(5) The entire incident took place at circle Rabupura and the Petitioner was inlarge (Naib Tehsildar) at Circle Jewar, district Gautam Buddh Nagar on the relevant date so he was not liable for the wrong committed on 20.10.2010 and 23.10.2010.

(6) The Petitioner is the Government Servant (Naib Tehsildar) at Circle Jewar, district Gautam Buddh Nagar and No. specific role has been assigned to him and it is not a case in which his arrest is reckoned to be necessary in furtherance of investigation.

(7) The regular suit is the only remedy available to examine the validity of the entry dated 20.10.2010 and the parallel criminal proceeding is not permissible under the law.

(8) The prosecution story as unfolded in the F.I.R. is a theme borne of concoction and fabrication and if the investigation disallowed to go on qua the allegations in the F.I.R. which has its substratum in false and fabricated, it would perilously close to the abuse of process of law.

However, the Learned A.G.A. appearing on behalf of State of U.P.countered the submissions made by the Counsel for the Petitioner.

We have bestowed our anxious consideration on the submissions made by the Counsel for the parties.

The conclusion regarding the submission are as follows;

1st Point : MORE THAN ONE F.I.R. CAN BE REGISTERED:

So far as the first submission is concerned regarding maintainability of second F.I.R., the Apex Court in the case of Upkar Singh v. Ved Prakash, 2005 SCC (Cri) 211 : 2004 (3) ACR 2450 (SC), has held that second complaint in regard to the same incident is not prohibited under the Code. The relevant observations are extracted as mentioned here in below:

A perusal of the judgement of this Court in Ram Lal Narang''scase 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. Saldanha. However, it must be noticed that in T.T. Antony''scase Ram Lal Narang''s case was noticed but the Court did not express any opinion either way.

The Apex Court in the case of Zahira Habibullah Sheikh v. State of Gujarat, 2004 SCC (Cri) 999 : 2004 (3) ACR 2373 (SC), had also observed that crimes are public wrongs, in breach and violation of public rights and duties, which affect the whole community and are harmful to society in general. The trial should be a search for the truth and not a bout over technicalities. Some of the observations maybe extracted herein- under:

The concept of fair trial entails the familiar triangulation of interests of the accused, the victim and society, and it is the community that acts through the State and prosecuting agencies. Interests of society are not to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson''s eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in criminal trial. Public interest in the proper administration of justice must be given as much importance, if not more, as the interests of the individual accused. In this Courts have a vital role to play. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. The Supreme Court has often emphasized that in a criminal case the fate of the proceedings, cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to society in general.

The Apex Court also echoed the said principle in:

Kari Choudhary v. Sita Devi, 2001 SCC (Cri) 1048 : 2002 (1) ACR 375 (SC),

Nirmal Singh Kahlone v. State of Punjab, 2009 (1) SCC (Cri) 523,

A.A. Mulla and Ors. v. State of Maharashra and Anr. 1997 SCC (Crl) 305.

In view of aforesaid discussion, second F.I.R. cannot be thrown out merely on the technicalities, more so, when earlier investigation is not complete against the Petitioner.

2nd Point : DELAY IN LODGING F.I.R. NOT FATAL:

An F.I.R. is a report giving information of the commission of the cognizable crime which may be made by the complainant or by any other person knowing about the commission of such an offence. It is intended to set the criminal law in motion. The object of lodging of F.I.R. is to obtain the earliest information regarding the circumstances in which the crime was committed.

General rule of criminal justice is that, "a crime never dies." The principle is reflected in the well known maxim, ''null am tempers aut locus occurrit regi'' which means- Lapse of time is No. bar to initiate any proceeding against the offenders. It is well-settled that the criminal offence is considered as wrong against the State and the society at large, even though it has been committed against an individual. Indisputably, the Limitation Act, 1963 does not apply to criminal proceeding unless there are express or specific provisions to that effect. There cannot be any generalization that whenever there is delay in lodging the F.I.R., the prosecution case becomes suspect. Therefore, where the delay is so long as to throw a cloud of suspicion on the side of the prosecution case depends upon the facts of each case. Here in the present case, when the Revenue Officials including the Petitioner themselves are said to have connived that may be the plausible reason for necessitating the informant to move an application u/s 156(3), Code of Criminal Procedure before the Special Judge to exercise the power conferred upon him. The incident in the present case is said to have occurred in the month of October, 2009 and the F.I.R. of the offence could be registered only on 30.5.2010, that too, in pursuance of the order passed by the Learned Special Judge, Gautam Buddh Nagar. Obviously, there would have been some delay in getting the F.I.R.lodged which cannot be deemed as fatal for the prosecution. Therefore, the delay, if any, itself is self-explanatory and such F.I.R. cannot be thrown when it discloses mal and corrupt practices adopted by the Petitioner and other revenue officers and officials for gaining benefit.

3rd Point : THE SPECIAL JUDGE HAD JURISICTION:

Indisputably, all the Sessions Judges in Uttar Pradesh have been empowered to act as a Special Judge under the Prevention of Corruption Act, 1988 (hereinafter referred to as "P.C. Act"). Likewise all the Additional Sessions Judges also have been empowered to act as Special Judge under the P.C. Act by virtue of Uttar Pradesh Government Notification No. 444/CHH-PU-9-2008-31 (8) /2008 dated 19.2.2008. The power to take cognizance of the offence under the provisions of P.C. Act when the accused being committed for trial has been conferred on the Special Judge by virtue of Section 5 of P.C. Act. It is further provided that in trying the accused-persons, the Special Judge would follow the procedure prescribed by the Code of Criminal Procedure for trial and the warrant cases by the Magistrate. Further, Sub-section (3) of Section 5 of the P.C. Act envisages that save as provided under Sub-section (1) or Sub-section (2), the provisions of the Code of Criminal Procedure, 1973 shall, so far as they are not inconsistent with the P.C. Act, apply to the proceeding before the Special Judge. Hon''ble Apex Court in a case of A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, itself has observed that:

Special Judge is empowered to exercise the powers of the Magistrate also for certain purposes. The power to take cognizance of the offences under the P.C. Act has been conferred on the Special Judge by virtue of Section 5 of this Act.

Hence, in our considered opinion, the application u/s 156(3), Code of Criminal Procedure disclosing the commission of the offence under the provisions of P.C. Act can be entertained by the Special Judge appointed u/s 3 of the P.C. Act. Hence, in the present case the order passed u/s 156(3), Code of Criminal Procedure by the Learned Sessions Judge, Gautam Buddh Nagar while acting as Special Judge under the P.C. Act is absolutely legal, just, proper and in consonance with law, the contention of the Petitioner''s Counsel is, therefore, not sustainable.

4th Point : SANCTION of APPROPRIATE GOVERNMENT OR AUTHORITY IS NOT REQUIRED FOR INVESTIGATION:

Indisputably, the cognizance of the offence under the provisions of the P.C. Act can be taken by the Court only after granting sanction by the appropriate Government Authority. There is No. dispute about this proposition of law but No. sanction is required at the time of registration of F.I.R. As would appear from the Sub-section (1) of Section 19 of P.C. Act, 1988, sanction of appropriate Government or Authority is required at the time of taking cognizance of the offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by public servant and not at the time of passing the order u/s 156(3), Code of Criminal Procedure for registration of F.I.R. or lodging of F.I.R. about such offence directly at the police station. Therefore, the application u/s 156(3), Code of Criminal Procedure cannot be rejected on the ground that sanction of appropriate Government or Authority is required at the time of taking cognizance. Argument advanced by Learned Counsel for the Petitioner in this regard is wholly misconceived and is not tenable and for the reasons mentioned hereinabove, the order passed by the Learned Sessions Judge acting as Special Judge under the P.C. Act directing for registration of F.I.R. and investigation of the crime is wholly sustainable and warrant No. interference.

5th and 6th Point : THE PETITIONER COULD ALSO BE HELD LIABLE FOR THE WRONG:

The Petitioner is named in the F.I.R. and he is said to be posted at Tehsil Jewar, district Gautam Buddh Nagar. Indisputably, arrest is the part of investigation and recovery of truth is desideratum of investigation. The investigation of a criminal offence is very sensitive phase where investigating authority has to collect evidence from all odd corner and anything that is liable to thwart its course may inhibit the interest of justice.

Certainly F.I.R. is not an encyclopedia of the investigation into a criminal offence. Nor is it an inflexible pre-condition for entering into an investigation. The F.I.R. may sometimes be not more than a tip of iceberg which at a deeper probe would lead to the recovery of a huge mass gravely incriminating facts. In the present case, the Petitioner is named in the F.I.R. along with other revenue officials and officers and serious illegalities and irregularities are said to have been committed and how surreptitiously and fraudulently the entries were made in the revenue records by whom is the matter to be left for investigating agency and the trial court. Any interference at this stage may affect fair, effective and analogical investigation. Thus, the investigation cannot be interfered on the ground submitted by the Learned Counsel for the Petitioner.

7th and 8th Points : CRIMINAL PROCEEDING No. BAR IF COGNIZALBE OFFENCE IS DISCLOSED:

From factual foundation, as has been referred, criminal liability of the Petitioner for the offence indicated above is made out. The proceeding cannot be quashed merely on the ground of alternative remedy by way of filing of civil proceedings. There cannot be any criminal case where the allegation cannot to same extent be relevant for civil remedy. But that would not oust the jurisdiction of criminal court. Had there been any importance of the pendency of the civil procedure, the scrupulous litigant by fabricating a case on false document shall bring the civil proceeding and would press for non-maintainability of the criminal prosecution. Identical view was expressed by the Apex Court inthe case of Kamala Devi Agrawal v. State of West Bengal, 2002 SCC (Cri) 200 : 2002 (1) ACR 228 (SC), that-

Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of civil action in a different Court even though higher in status and authority, cannot be made a basis for quashing of the proceedings. The nature and scope of the civil and criminal proceedings and standard of proof required in both matters is different and distinct. Whereas in civil proceedings, the matter can be decided on the basis of probabilities, the criminal cases has to be decided by adopting standard of proof of "beyond reasonable doubt.

Reliance may be placed in the cases of R.P. Kapur Vs. The State of Punjab, Hazari Lal Gupta Vs. Rameshwar Prasad and Another, etc., State of Karnataka Vs. L. Muniswamy and Others, State of Haryana v. Chaudhary Bhajan Lal, 1992 Suppl (1) SCC 335; Rajesh Bajaj Vs. State NCT of Delhi and Others, Trisuns Chemical Industry Vs. Rajesh Agarwal and others, M/s. Medchl Chemicals and Pharma P. Ltd. Vs. M/s. Biological E. Ltd. and Others, Lalmuni Devi Vs. State of Bihar and Others, M. Krishnan Vs. Vijay Singh and Another, M.S. Sheriff Vs. The State of Madras and Others, Swarupa Rani v. M. Hazi Narain 2008 (3) SCC (Cri) 79; Ikbal Singh v. Minakshi 2005 SCC 911 : 2005 (2) ACR 1379 (SC); Rashid Kamaluddin Syyad v. Sheikh SahebLal Mardan 2007 (2) SCC (Cri) 63 : 2007 (2) ACR 1295 (SC) and T.Vengama Naidu v. T. Dora Naidu 2007 (58) ACC 68 : 2007 (2) ACR 2034 (SC).

We, therefore, come to the conclusion that prosecution story asunfolded in the F.I.R. prima facie discloses cognizable offence under the sections mentioned above. This Court could not delve deep into the truth or otherwise of the allegations made in the F.I.R. at this stage which being taken in its entirety spelt out commission of offence under which the case has been registered. That all has to be examined at this stage is whether the F.I.R. ex facie discloses commission of cognizable offence and if the Court veers round to the opinion that the F.I.R.does disclose the commission of cognizable offence, it must stay its hands off and allow the investigation to be completed. The contention on behalf of the Petitioner does not command to us for acceptance that the F.I.R. taken in its entirety does not disclose the commission of offences punishable under Sections 166, 167 and 218, I.P.C. and u/s 7/13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.

Reference be made at this stage in which prima facie a case is to be seen in the light of law laid down by the Hon''ble Apex Court in the cases of R.P. Kapur Vs. The State of Punjab, State of Haryana v. Bhajan Lal, 1992 SCC (Cr) 426; State of Bihar v. P.P. Sharma, 1992 SCC (Cri) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haque and Anr. (para 10), 2005 SCC (Cri) 283 : 2004 (3) ACR 3063 (SC).

Moreover, the Full Bench of this Court in the case of Ajit Singh alias Muraha v. State of U.P. and Ors. (56) 2006 ACC 433 : 2006 (3) ACR 2842 (FB) , reiterated the view taken by the earlier Full Bench insatiate Satya Pal and Others Vs. State of U.P. and Others, that-

There can be No. interference with the investigation or order staying arrest unless cognizable offence is not ex facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the police to investigate a case as laid down by the Apex Court in various decisions including the above mentioned cases.

Learned Counsel for the Petitioner switched the gear to the commiserative submission that the Petitioner is a Government employee and it is not a case in which his arrest be reckoned to be necessary in furtherance of the investigation inasmuch as the Petitioner is prepared and willing to co-operate with the Investigating Officer to make it apoint to present himself and where called upon to be so for interrogation.

We have given our anxious consideration on the submissions made by the Learned Counsel for the parties and have also looked into the allegations made in the F.I.R. Sympathy has No. role to play in criminal cases. This Court cannot grant protection from arrest ignoring the malpractices adopted in getting forged entries in the revenue records by the revenue officials and officers. The matter is of immense public importance and so required No. interference by this Court. We find that what has happened in this case is happening in large number of matters and corruption in public offices is becoming rampant. If any relief is granted to the Petitioner at this stage, certainly it will have an adverse effect on combating corruption amongst public servants.

Reference of Apex Court''s decisions in this regard is being made here in below:

(1) Maruti Udyog Ltd. Vs. Ram Lal and Others,

(2) Adri Dharan Das v. State of West Bengal, (51) 2005 ACC 906 : 2005 (1) ACR 1013 (SC).

Having considered the submissions advanced by the Counsel for the Petitioner on various aspects mentioned above, we come to the conclusion that the Counsel for the Petitioner has completely failed to make out any case for interference by this Court at this stage.

Accordingly, the writ petition for quashing the F.I.R. is dismissed and the prayer for grant of interim relief is also declined. However, the investigation in Case Crime No. 246 of 2010, Police Station Jewar, district Gautam Buddh Nagar may go on fairly and impartially and be taken to its logical conclusion without unnecessary delay. We further hasten to add that above observations made by us would not affect the investigation or trial, if any.

Copy of this order be also placed on the record of connected Criminal Misc. Writ Petition No. 12018 of 2010.