HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 13198 of 2011 Petitioner :- Avanish Chandra Srivastava Respondent :- State Of U.P. And Others Petitioner Counsel :- K.K. Tiwari Respondent Counsel :- Govt. Advocate Hon'ble Amar Saran,J.
Hon'ble Shyam Shankar Tiwari,J.
1. Heard learned counsel for the petitioner and learned A.G.A. for the State.
2. The petitioner Avanish Chandra Srivastava has filed this writ petition for issue a writ order or direction in the nature of certiorari quashing the impugned F.I.R. dated 26.6.2011 lodged by the respondent no.5 against the petitioner at Case Crime No. 668 of 2011, under section 406 I.P.C., P.S. Captanganj, District Azamagarh. Further prayer is made for directing the respondents not to arrest the petitioner in pursuance of the impugned F.I.R. stated above.
3. It is contended by the learned counsel for the petitioner that the F.I.R. has been lodged against the petitioner with a malafide intention. There is a G.O. dated 19.7.2005 that no F.I.R. should be lodged against the government servants before initiation of departmental enquiry, but in the present case it has been lodged ignoring that G.O. It is also contended that the complainant is much junior to the petitioner and he cannot lodge the F.I.R. It is also submitted that the amount mentioned in the F.I.R. alleged to have been embezzeled by the petitioner is actually the amount of his salary and other allowances which have been deposited in his account in the Allahabad Bank. Salary amount alleged to have deposited in the account of one Rajnath Singh was also the amount of his arrears etc. It is further submitted that some amount was wrongly deposited in his account by the concerned bank officials which mistake was subsequently corrected.
4. On the other hand the learned A.G.A. has opposed the relief sought by the petitioner and submitted that departmental proceedings against the petitioner have already been initiated much before lodging of this F.I.R. against him. After a detailed enquiry the higher authorities concluded that it is a case of embezzlement attracting criminal liability against the petitioner hence the F.I.R. was lodged. It is further contended that the amounts mentioned in the F.I.R. have been embezzled by the petitioner. It is also contended that pendency of departmental enquiry is so far initial of criminal proceedings. Both are independent proceedings. He does not deserve any relief and the writ petition should be dismissed.
5. The Full Bench of this Court in the case of Ajit Singh @ Muraha Vs. State of U.P. and others (2006) (56) ACC 433) reiterated the view taken by the Full Bench in the case of Satya Pal Vs. State of U.P. and others (2000 Cr.L.J. 569) 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. The Apex Court in the case of State of Haryana Vs. Bhajan Lal and others (AIR 1992 SC 604) contradict extension to the power of the High Court to stay arrest or to quash an F.I.R. under Article 226 of the Constitution of India and the same are intended to be observed in compliance by the Police, the breach whereof may entail action by way of departmental proceeding or action under the contempt of Court Act. The Full Bench has further held that it is not permissible to appropriate the writ jurisdiction under Article 226 of the Constitution as an alternative to anticipatory bail which is not invocable in the State of U.P.; attended with further observation that what is not permissible to do directly cannot be done indirectly. Similar view has been taken by the Apex Court in the case of Joginder Kumar Vs. State of U.P. and others (1994) 4 SCC 260.
6. Considered the submissions made by learned counsel for the parties. The petitioner was appointed as Sahayak Rajaswa Lekhakar (Sahayak Waka Sasil Nabis). In his official capacity he is said to have embezzled huge amount of government revenue mentioned in the F.I.R. The points raised by the petitioner may be considered at the stage of collection of evidence during investigation and not at this stage. The record further reveals that the departmental enquiry was already pending against the petitioner much before lodging of the F.I.R. against him regarding embezzlement. The amount mentioned in the F.I.R. is the amount of salary or other allowances of the petitioner or other employee Rajnath Singh or it is an amount of embezzlement may be considered by the investigating officer at the stage of investigation. At present prima facie looking into the facts mentioned in the F.I.R. it cannot be said that no cognizable offence is disclosed against the petitioner. Similarly no statutory restriction for investigating the case appears to be there.
7. In view of the facts and circumstances of the above case, we do not find any merit in this petition as prima facie commission of cognizable offence is disclosed. Accordingly no interference is warranted by this Court. The writ petition is accordingly dismsised.
Order date 22.7.2011 R.U.