HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 52 Case :- CRIMINAL MISC. WRIT PETITION No. - 8072 of 2013 Petitioner :- Dr. Rakesh Dhar Tripathi Respondent :- State Of U.P. & 4 Others Petitioner Counsel :- Vishnu Gupta,Dr. S.P. Srivastava,Lav Srivastava,V.P. Srivastava Respondent Counsel :- Govt. Advocate Hon'ble Dharnidhar Jha,J.
Hon'ble Pankaj Naqvi,J.
Supplementary affidavits filed today are taken on record as part thereof.
We have heard Sri V.P. Srivastava, learned Senior Counsel on behalf of the petitioner, who was issued a letter dated 27.4.2013 by the Inspector, Uttar Pradesh Vigilance Department, Varanasi stating that in spite of having been requested to supply informations in proforma nos. 1 to 6, which had already been sent to the petitioner by the Vigilance Department, and also having been requested telephonically as also orally in that behalf, the petitioner had not furnished the required informations till that date as a result of which the inquiry for the said period starting from May 2007 to December 2011 regarding the acquisition of properties disproportionate to the known sources of income of the petitioner was being stalled. The petitioner was further requested by the same letter that all the informations and the documents in respect of the known sources of income of the petitioner and the amounts expended by him had been procured by the Superintendent, Vigilance Department, Varanasi that the petitioner should have a glance of the informations contained in those documents on 27th and 28th of April, 2013 and furnish the informations as requested by the Vigilance Department.
It appears that the petitioner did not pay appropriate heed to the request made by the Vigilance Department by above letter dated 27.4.2013 which appears as one of the annexure to the supplementary affidavit dated 30.4.2013 and that prompted the Vigilance Department to issue another letter dated 28.4.2013 noting that in spite of having been provided the proformas no. 1 to 6 by registered letters dated 27.2.2013 and 19.2.2013 and in spite of having been requested to furnish the informations in those proformas on the acquisitions of assets, the petitioner had not responded to those requests. It was further stated in that letter dated 28.4.2013 that the petitioner was personally contacted at his residence at Rajendra Nagar, Batuwa Ghat, Allahabad and was also again requested to furnish the desired informations, but that had not been furnished as a result of which he was requested by letter dated 27.4.2013, which was sent to him by fax, to comply with the request so that the inquiry, which was being held for the period commencing from May 2007 and ending on December 2011, regarding the acquisition of assets by the petitioner allegedly disproportionate to the known sources of his income could be brought to a logical conclusion.
It was also pointed out in the second letter dated 28.4.2013 sent to the petitioner that the petitioner had made a request by fax letter dated 28.4.2013 for supplying the copies of the documents corresponding to the requests made by the Vigilance Department which request was not practically tenable in as much as the petitioner had already been requested to come into the office of the Vigilance Department to personally have a glance of the documents so as to furnishing the required informations.
The last request contained in letter dated 28.4.2013 was that the petitioner should come into the office of the Vigilance Cell and he may furnish information in proformas no. 1 to 6 while being requested as above. The petitioner was assured, as may appear from the last line of letter dated 28.4.2013, that he must have trust and belief that the inquiry being conducted by the Vigilance Department was fully impartial and transparent.
Undeniably, the petitioner did not respond as regards furnishing of the informations in proformas and entered into some correspondences which included one, which we have just indicated for making available to him the copies of the complaint and also connected documents.
The petitioner's plea before us was that the request was in the garb of bringing the petitioner before the Vigilance Department so that it may be very easy for sleuths of that Department to formally arrest him and remand him to custody.
It was further pointed out during the course of the hearing of the petition as also through his pleadings that the foundational allegations or any information could have been filed before the Vigilance Department which had prompted it to initiate the inquiry and to seek the informations by collecting other details regarding the acquisition of properties and expenditures incurred by the petitioner was not being supplied to him in spite of having made written request in that behalf. It was, as such, argued before us that there was a reasonable apprehension in the mind of the petitioner that if he appeared to give his explanations personally as was requested, he may be arrested.
During the course of hearing, Sri Srivastava, the learned Senior Counsel appearing for the petitioner, was highlighting the above facts and circumstances upon which he was asking us to issue a direction to the Vigilance Department that in case the petitioner had appeared before them, they would not arrest the petitioner.
While perusing the annexures to the present petition, we have the application or letter addressed to the Director General of Police, Vigilance Cell, which was the basis, undisputedly, for holding an inquiry by the Department against the petitioner regarding acquisition of disproportionate properties after having misappropriated the public fund. That application appears at page no. 193 of the present petition. As such, the very premise that the petitioner had not been furnished the copy of the petition, which was the basis for holding the inquiry in which the petitioner was required to furnish the informations as also to give explanations after personally appearing before the inquiring officer of the Department appears of no substance. Even if there were additional materials as was contended to exist, which could have prompted the Vigilance Department to hold a preliminary inquiry regarding the allegations of acquisition of assets disproportionate to the know sources of income of the petitioner, if the petitioner had appeared before the Vigilance Department as was requested to be done by the Department, we have no doubt in appreciating that the Department ought to have shown those materials to the petitioner and if anything further was required to be explained the Department ought to have given that opportunity to the petitioner. Now that the petitioner in garb of the present plea that he had the apprehension of being arrested, was not appearing before the enquiring officer, how he can complain that he was not getting any informations about the foundational facts which had led to the holding of the inquiry?
We have elaborate provisions in the Cr.P.C. itself specially in Section 157 of the Code which might give reason for us to note that the preliminary inquiry is not always to culminate in lodging of the First Information Report. In our opinion, even if there was an information regarding the commission of a cognizable offence, the police was not precluded to hold a preliminary inquiry. If it found that there was no basis or necessity of registering a case, even if a court has directed it to register a case for being investigated into, the investigating agency, which has the power to investigate a cognizable offence under any general or special law, may refuse to do it. But in that case it has to note the reasons on the basis of which there was no necessity of registering the F.I.R. This clearly follows from proviso appended to sub Section (1) to Section 157 and clauses (a) & (b) appended thereto and further from sub Section (2) appended to that section. In that view of the matter, we are of the opinion that the very case of the petitioner that he had apprehension of being arrested appears unfounded.
Even in a case where the Investigating Agency has registered an F.I.R., it may also not be necessary for it to arrest an accused. The Investigating Officer of such a case may arrest an accused only if it is necessary so to be done. This is plainly clear from the provision of Section 157(1) Cr.P.C. Thus, what appears to us is that the holding of a preliminary inquiry by the Vigilance Department regarding the alleged acquisition of properties disproportionate to the known sources of income of the petitioner, could not be said to be illegal rather the scheme of Cr.P.C. as per Section 157 vests ample jurisdiction in police to hold preliminary inquiry if it so desired prior to investigation of the case.
In the present case, the facts stated by the petitioner does not convince us that the inquiry was unlawful and it was prejudicially being held without there being any statutory power to the Vigilance Department rather what we have noted after considering the provisions of Section 157 Cr.P.C. We are satisfied that the inquiry could not be said to be mala fide or unlawful or illegal so as to requiring the interference by this Court. The decision regarding holding of preliminary inquiry for finding out facts which may satisfy the police or any Investigating Agency to register a case to fully investigate into the commission of the offence, is a statutory power or duty of any Investigating Agency which is empowered to hold an investigation under Section 157 Cr.P.C. In that view, mere statements of facts and mere expression of apprehension that the petitioner shall be arrested if he appears before the Vigilance Department, in our opinion, was not acceptable rather it is a mere apprehension without any substantial reasons as the petitioner has simply been asked to appear after furnishing the requisite informations to explain the contents of certain documents regarding the acquisition of properties by the petitioner in excess of his known sources of income. As such the contention of Sri G.S. Chaturvedi, the learned Senior Counsel, appearing for the respondent no. 5 and Sri Jai Prakash Narain Raj, learned counsel appearing for the Vigilance Department, that the petitioner has not made out any case for granting the protection of law, on account of no case having been registered against him the institution of present writ petition appears not maintainable.
The other question, which has engaged our attention, was as to whether the Vigilance Department could be said to have acted outside the purview of their jurisdiction to issue the letters dated 27.4.2013 and 28.4.2013 and before that the one under the registered postal cover by which proformas no. 1 to 6 were transmitted. This hardly requires to be noted that if an information is given to the police-and we believe that the officers of the Vigilance Department are also police officers for the purposes of instituting a case and investigating the same-then the police has statutory duty to investigate into the allegations. If the information is very categorical, which was making out a clear case of commission of cognizable offence then in that case the police is required to draw up the First Information Report and investigate the case as per the provisions of Section 157 or 172 Cr.P.C. Else as we have already noted, it may hold a preliminary inquiry so as to verifying the allegations by looking into some aspects of it and it may choose to register the F.I.R. or may choose not to register it and make a report to the nearest Magistrate as per the provisions of Section 157(1) proviso (b) Cr.P.C. In case it initiates a preliminary inquiry as appears from the scheme of Cr.P.C. then it has a power to issue notice to persons, who may be acquainted with the facts and circumstances of the case, to appear before it. It is plainly clear from the provision of Section 160 Cr.P.C. that such power, which is vested in the police, could be exercised only for facilitating the collection of materials, may be an explanation from the person, who is alleged to have committed the offence so as to deciding whether there was any necessity of registering a case.
This appears logically necessary in as much as as soon as a First Information Report is registered by the police, the very liberty of the person, who figures as an accused in it, gets clouded. The purpose of investigating a criminal case is two fold:- to collect the materials in support of the accusation of committing the offence so as to placing the same before the trial court for the purpose of administering justice and also that no innocent person should be made an accused and, thus, his liberty should not be encroached upon. If the Vigilance Cell has issued two letters and had earlier issued a notice by enclosing therewith proformas no. 1 to 6 for furnishing the requisite informations and have further requested the petitioner to appear before it to explain contents of certain documents showing the disproportionate acquisition of properties by the petitioner then, in our opinion, it is all the more in compliance with the scheme of the Cr.P.C. before registering a case and as such there could not be any apprehension in the mind of the petitioner merely because of the reason of being called upon to appear before the Vigilance Department for explaining the contents of certain documents or to answer the queries. In our opinion, it is more in the interest of the petitioner to appear before the Vigilance Department and to assist it in reaching a conclusion as to whether it was desirable to institute a First Information Report in respect of the alleged acquisition of properties by the petitioner disproportionate to his known sources of income.
In View of the above, we do not find any cause of action accruing to the petitioner for filing the present writ petition. We also do not find any lack of jurisdiction or usurpation of jurisdiction by the Vigilance Department in issuing the notices or letters rather we are satisfied that the actions of the Vigilance Department were completely in consonance with their duties as set down by the scheme of the Cr.P.C. as regards the investigation into an acquisition.
A supplementary affidavit has also been filed today. An order passed by the Apex Court in I.A. No. 4 in Transfer Petition (Civil) Appeal No. 1248 and 1250 of 2012 dated 2.5.2013 has been brought on record. From perusal of the order passed by the Apex Court on 2.5.2013, we find that the Apex Court had refused to stay the proceedings or investigation as prayed for in the application and had allowed the proceedings of inquiry by the Vigilance Department to continue. Sri Srivastava was drawing our attention towards the part of the order by which the Apex Court had directed the Vigilance Department not to arrest the applicant Nasirumuddin Siddiqui without the leave of the Supreme Court of India. We find that the above order of the Apex Court could not be applicable in the set of facts of the present case as no investigation is being carried out. As no F.I.R. or case has been instituted for investigation by the Vigilance Department, if we directed not to arrest the petitioner in absence of any F.I.R., any agency or specially the Vigilance Department in connection with the facts, which are still to be formally investigated into by registering a full fledged F.I.R, in our opinion, it shall be in complete conflagration with the observations and directions of the Supreme Court in Shri Gurubaksh Singh Sibbia and others Vs. State of Punjab reported in (1980) 2 SCC 565. In that case the Constitution Bench of the Supreme Court was explaining the object and scope of the provisions of Section 438 Cr.P.C. which had been added for the first time in the Criminal Procedure Code, 1973 in the light of the Law Commission's recommendations in their 41st Report dated 24.9.1969. While speaking on the desirability of not passing the 'blanket order' of anticipatory bail. It is true that the context was different from the present one but some of the reasons, which appear to us, were also the same before the Constitution Bench of the Supreme Court in Shri Gurubaksh Singh Sibbia's case as the provision in the opinion of the Apex Court required the applicant to show that he had reason to believe that he may be arrested. While explaining the meaning of 'reason to believe' the Supreme Court laid down as under in paragraph 40 of the Report which is as under:-
"40. We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is proposition (2). We agree that a 'blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity , in fact any eventuality , likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under Section 438 (1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section."
We have already noted that no order directing anyone not to be arrested has to be passed as it is prohibited by the very order of the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia. No one could be directed not to be arrested for whatever offence at whatever place and by whosoever.
In our opinion, the present petition was itself not maintainable on account of there being no registration of the First Information Report and there being no cause of action for filing the present writ petition. As such we find no merit in the present petition besides finding the same not maintainable. It is dismissed accordingly.
Dt/8.5.2013 Ram Murti