Allahabad High Court
Shiv Kant Tripathi vs State Of U.P. & Others on 12 October, 2012
Bench: Amitava Lala, Acting Chief Justice, Shashi Kant Gupta, Pradeep Kumar Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Chief Justice's Court
Criminal Misc. Application (Modification/
Clarification) No. 174093 of 2011.
AND
Criminal Misc. Recall Application No. 292338 of 2011
IN
Criminal Misc. Writ Petition No. 4909 of 2010.
Shiv Kant Tripathi. ...... ..... ...... Petitioner.
Versus
State of U.P. And others. ...... ...... ......Respondents.
Present:
Hon'ble Mr. Justice Amitava Lala, Acting Chief Justice,
Hon'ble Mr. Justice Shashi Kant Gupta, &
Hon'ble Mr. Justice Pradeep Kumar Singh Baghel.
Appearance:
For the Applicants in Modification/
Clarification Application (Respondent
Nos. 2 & 4 in the writ petition) : Mr. P.P. Malhotra,
Addl. Solicitor General of India,
Mr. Chetan Chawla, &
Mr. Alok Mishra.
For the Applicant in Recall Application
(Respondent No. 7 in writ petition) : Mr. Uday Lalit, Sr. Advocate,
Mr. Dipesh Mehta, &
Mr. Kunwar Siddharth Singh.
For the Petitioner in Writ Petition : Mr. G.S.Chaturvedi, Sr. Advocate,
Mr. Samit Gopal.
For State-respondents in Writ petition : Mr. Akhilesh Singh,
Government Advocate.
-------
Amitava Lala, ACJ.-- Aforesaid modification/ clarification application has been made on or about 21st June, 2011 by the Union of India through Ministry of Revenue, Government of India, New Delhi and the Enforcement Directorate through its Special Director, Lok Nayak Bhawan, Khan Market, New Delhi, the respondent nos. 2 and 4 respectively in the aforesaid writ petition, seeking modification/clarification of the order dated 20th May, 2011 passed in the aforesaid writ petition.
Admittedly, the petitioner in the writ petition had earlier filed a public interest litigation, being Public Interest Litigation (PIL) No. 55580 of 2009 (Shiv Kant Tripathi Vs. State of U.P. & others), which was dismissed by a Division Bench of this Court vide order dated 24th October, 2009. The operative part of the order dated 24th October, 2009 is as follows:
"The Code of Criminal Procedure, 1973 provides for a complete procedure for investigation of the offences. At this stage, it cannot be said that nothing has been done in the matter, or that the police will not carry out the investigation of the offences.
In our opinion, the writ petition filed immediately after lodging the first information report to monitor the investigation does not require interference of the Court.
The writ petition is dismissed, at this stage."
Technically speaking, second writ petition is barred in view of the provisions contained under Chapter XXII, Rule 7 of the Allahabad High Court Rules, 1952 (hereinafter in short called as "Rules of the Court") unless, of course, liberty is granted by the Court at the time of dismissal of the earlier writ petition. Most likely, the petitioner has taken advantage of the words "at this stage" used in the order dated 24th October, 2009 while dismissing the earlier writ petition and filed the present writ petition. The second technical aspect is this that normally criminal miscellaneous writ jurisdiction is meant for quashing of the first information report (in short called as "F.I.R.") but not for the purpose of giving directions to make an enquiry, as prayed for, which at all can be done, if the writ petition is filed civil miscellaneous writ petition. Thirdly, it is contended on behalf of the respondents that the writ petitioner has not approached this Court with clean hands and he himself is involved in several criminal cases. Moreover, when a remark has been made about the writ petitioner that he is whistle blower, the Court is surprised to make note that whistle blower has so many criminal cases.
Be that as it may, the brief facts leading to filing of the aforesaid applications are that the above-mentioned writ petition, i.e. Criminal Misc. Writ Petition No. 4909 of 2010 (Shiv Kant Tripathi Vs. State of U.P. and others), was filed by one Sri Shiv Kant Tripathi, who has lodged the F.I.R. dated 15th October, 2009 against the respondent no. 7 and others, registered as Case Crime No. 458 of 2009, under Sections 420, 467, 471 & 120-B of the Indian Penal Code (in short called as "IPC"), Sections 7, 8, 9, 10, 13 (1)(e) of the Prevention of Corruption Act, 1988 (in short called as the "Act, 1988") and Sections 3/4 of the Prevention of Money Laundering Act, 2002 (in short called as the "PML Act"), at Police Station Babu Purwa, District Kanpur Nagar, seeking a direction upon the Enforcement Directorate-respondent no. 4 to take up the investigation of aforesaid Case Crime and investigate the same in accordance with law. Further reliefs were sought for to the effect that the Special Cell, Economic Offences Wing as also the Enforcement Directorate may be directed to submit such periodic reports as may be deemed fit as to the stage, status and manner of investigation to this Court, and also to complete the investigation within such period as may be directed by this Court. The aforesaid writ petition was heard along with Criminal Misc. Writ Petition No. 24225 of 2009 (Amar Singh Vs. State of U.P. and others), which was filed by the respondent no. 7 herein seeking quashing of the F.I.R. dated 15th October, 2009 of the said case crime, by a Division Bench of this Court. The Division Bench by its judgement and order dated 20th May, 2011 dismissed the Writ Petition No. 24225 of 2009 and gave the following directions in respect of the relief sought for in the present writ petition i.e. Writ Petition No. 4909 of 2010:
"In the above perspective we are of the view that regard being had to the various materials on record and also considering the averments made in the writ petitions and also in counter and rejoinder affidavits, we are of the firm view that it is a preeminently fit case for exercise of extraordinary power and the matter needs thorough probe by Special Cell as the matter of has national ramifications. Regard being had to the fact that the companies which are alleged to be shell companies are registered in various States and therefore, the Enforcement Directorate being Central Agency shall be the appropriate Cell capable of carrying out thorough probe. It is therefore directed that the entire papers relating to this matter shall be entrusted to the Enforcement Directorate within 2 weeks and immediately after receipt of the papers the Enforcement Director shall commence investigation. The First Status report shall be submitted by the Enforcement Directorate within one month after receipt of papers.
List this matter in the first week of July 2011 on which date the authorities that be shall appear in person and shall submit the first status report."
However, the respondent no. 7 did not choose to proceed to the Supreme Court from such order but filed the aforesaid recalling application on 26th September, 2011 to recall the judgement and order passed by the Division Bench on 20th May, 2011.
Now the question before us is whether the original order will be modified/clarified or recalled in view of the present circumstances.
Normally, the modification/clarification applications and recalling applications are to be placed before the Bench, which has passed the original order. But in the present case, out of both the Judges of the Division Bench which passed the order dated 20th May, 2011, no one is available. One Judge has permanently been transferred to the Lucknow Bench by an administrative order of the then Hon'ble Chief Justice and the other one has already retired. Therefore, in their absence, following the principles of review as contained in the proviso to Rule 12 of Chapter V of the Rules of the Court and the order of the erstwhile Hon'ble Chief Justice dated 05th July, 2007, which has recently been circulated, the applications shall be heard and disposed of by a Bench consisting of same or greater number of the Judges. Hence, considering the question of law involved with regard to investigation and also the sensitivity of the issue, Hon'ble the Acting Chief Justice thought it fit that the matter is required to be heard by a larger Bench of three Judges and accordingly, this Bench has been constituted by applying first part of Rule 6 of Chapter V of the Rules of the Court. This larger Bench, so constituted, has heard the matter on two occasions upon giving fullest opportunity of hearing to all the concerned parties.
So far as complainant's writ petition is concerned, Mr. G.S. Chaturvedi, learned Senior Counsel appearing on his behalf, has stated before this Court that he has nothing to say in this regard because the complainant's purpose has been sub-served when the Court has taken cognizance of the complaint and proceeded further. On the other hand, by filing a report under the sealed cover Mr. P.P. Malhotra, learned Additional Solicitor General of India, has wanted to show as to what is the predicament on their part in continuing with the investigation.
In respect of the aforesaid direction given by the Division Bench, modification/ clarification application has been filed by the Union of India through Ministry of Revenue, Government of India, New Delhi and the Enforcement Directorate through its Special Director, Lok Nayak Bhawan, Khan Market, New Delhi, the respondent nos. 2 and 4 respectively in the writ petition, seeking modification/clarification to the extent that investigation in the scheduled offences under the Act, 1988, IPC, etc., as alleged in the F.I.R., may continue to be conducted by any nominated agency of the Uttar Pradesh Government and the applicant-respondent no. 4 may continue its investigations of the offence of money laundering in terms of the mandate under the PML Act.
Such application has been filed by saying that pursuant to the aforesaid directions, Enforcement Directorate (the respondent no. 4) has taken up the matter in right earnest and has initiated investigations about the properties of the companies, referred to in the petition, and financial transactions, which may be involved in the amalgamation and their source etc. in order to examine the possibility of it being proceeds of crime or property involved in money laundering. As per the respondent no. 4, this Court desired the respondent no. 4 to take up investigations regarding the entire chain of transactions leading to formation of several companies, referred to in the petition, and the intent behind their amalgamation with the approval of the Calcutta High Court, their source of income whether legitimate or otherwise and the beneficiaries of said income, so as to deal with the same in accordance with the provisions of the PML Act. In case the accused persons are found to be guilty of the scheduled offences, then to determine and if they are found to be in possession of the proceeds of crime, to deal with the same the provisions of the PML Act can be applied. The prime object behind enacting the PML Act is to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto. Enforcement Directorate has been mandated to investigate the offence of money laundering defined under Section 3 of the PML Act punishable under Section 4 thereof, besides provisionally attaching the proceeds of crime under Chapter III of the said Act. The ''scheduled offences' as per Section 2(1)(y) of the PML Act are required to be investigated by the concerned Law Enforcement Agency. The provisions of the PML Act contemplate two sets of proceedings against transactions constituting money-laundering; (a) prosecution for the offence of money-laundering defined in Section 3 with the punishment provided under Section 4; and (b) attachment, adjudication and confiscation in the sequential steps and subject to the conditions and procedures enumerated in Chapter III of the PML Act. Keeping in view the objects of the PML Act, the investigation of the offences of money laundering under the scheme of such Act is not only interlinked but also dependent on the results of the criminal trial of the scheduled offences. Under the scheme of the PML Act, the scheduled offences under various Acts included in the schedule to the PML Act viz. IPC, Act, 1988, etc. are required to be investigated by the concerned empowered investigating agency. In this regard, reliance has been placed on Sections 5 and 17 of the PML Act. Despite the close link between the investigations relating to criminality or otherwise of the accused under the scheduled offences and the investigations in respect of the purported proceeds of crime, the scheduled offence itself has to be investigated by the authorized agency or the authority under the concerned Acts enumerated in the schedule to the PML Act. Once the attachment of any property or retention of the seized property or record becomes final under Section 8(3)(b) of the PML Act, the Adjudicating Authority is required to make an order confiscating such property after giving an opportunity to the person concerned as per Section 8 (6) of the PML Act. Thus, the confiscation of the attached property is dependent on the outcome of the trial of the scheduled offence. It is, therefore, necessary that the concerned predicate agency, which may be Economic Offences Wing or any other authority nominated by the Uttar Pradesh Government, conducts its investigation of the predicate offences in addition to investigations by the Enforcement Directorate under the provisions of the PML Act, to ensure that the criminality is ultimately established by them during trial before a competent court and the conviction attaining finality paves the way for successful conclusion of investigation and prosecution of persons involved in the act of money laundering and confiscation of attached properties under the PML Act. However, directions in the operative part of the order dated 20th May, 2011 of the Division Bench of this Court to transfer the "entire papers" to the Enforcement Directorate may be construed to transfer even the papers relating to investigation of the scheduled offences as well as in the instant case to the Enforcement Directorate. Such a construction of the directions, if that be so, would not be in keeping with the scheme of the PML Act and the mandate given to the Enforcement Directorate under the PML Act.
In this background, we have opened the sealed cover and perused the report filed by the Enforcement Directorate. We find that in the last two paragraphs, being paragraph Nos. 5 and 6 at page nos. 68 & 69, of the report dated 11th September, 2012, filed by the Assistant Director, Directorate of Enforcement, Prevention of Money Laundering Act, Foreign Exchange Management Act, Govt. of India, New Delhi, it has been submitted as follows:
"(5) It is most respectfully submitted that the financial transactions among the entities, huge voluminous records comprised of balance sheets and other business descriptions of the companies, amalgamation orders passed by the Hon'ble High Court of Calcutta, income tax returns filed by the companies and Assessments Orders passed by Income-tax department. Returns filed by the companies to Registrar of companies, bank statements, documents (case diaries) received from State Police of Uttar Pradesh and number of persons have been examined under PMLA as per order of this Hon'ble Court. The records obtained from State Police of Uttar Pradesh also do not inter-alia establish any commission of crime.
(6) It is most respectfully submitted that Directorate of Enforcement investigated this case under PMLA to identify and trace the proceeds obtained directly and indirectly by any person as a result of criminal activity related with the schedule offence under PMLA. Directorate of Enforcement has not come across during the investigation, any proceeds of crime as defined under section 2(1)(u) of PMLA, in view of the above stated facts and circumstances."
After perusal, such report is again directed to be kept under the sealed cover.
Mr. Uday Lalit, learned Senior Counsel appearing for the respondent no. 7, has contended before this Court that there are two types of offences i.e. money laundering offences and scheduled offences. The predicament as shown by Mr. Malhotra regarding enquiry or investigation is under Section 2(1)(u) of the PML Act about the "proceeds of crime", which means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to scheduled offence or the value of such property. Therefore, the 'scheduled offences' are to be established at first to hold that there is a crime under the PML Act. The "scheduled offences" are prescribed under Section 2(1)(y) of the PML Act. Hence, scheduled offences are to be investigated by the State agency and when any such crime is established, then the matter can be handed over to the authority under the PML Act to come to a conclusion. There is no bar on the part of the State Police Authority in making any investigation about the scheduled offences.
As against such submissions advanced on the first date of hearing i.e. on 12th September, 2012, we had directed Mr. Malhotra to submit before this Court the documents based on which the report has been prepared. We had also directed the learned Government Advocate of the State of Uttar Pradesh to submit before this Court a report and produce all the available records to show as to what steps they had taken before forwarding /handing over all the necessary papers to the Enforcement Directorate.
Pursuant to such direction, on the last occasion when the matter was again heard on 21st September, 2012, copies of all the documents relied upon by the Union of India have been produced before this Court. So far as the State is concerned, an affidavit of compliance has been filed by the pen of Sri Shiv Narain Singh, Deputy Superintendent of Police, Economic Offences Wing, Kanpur Sector, Kanpur. Such affidavit of compliance has been filed by saying that the progress of investigation, till the same was handed over to the Enforcement Directorate as per the order dated 20th May, 2011, was placed before this Court time to time by means of affidavit of compliance in Criminal Misc. Writ Petition No. 24225 of 2009. Parcha Nos. 193, 194, 195 and 196 of the case diary of criminal case in question have been handed over to the Enforcement Directorate, New Delhi on 31st August, 2012. So far as registration of criminal case against earlier Investigating Officer of Economic Offences Wing, namely, Sri Chaudhary Ramesh Singh is concerned, it has been submitted that criminal case was registered against him on the basis of the application submitted by Sri Shiva Kant Tripathi, which has been registered as Case Crime No. 400 of 2011, under Sections 218, 420, 120-B I.P.C. and Section 13(1) of the Prevention of Corruption Act, 1988 at the appropriate Police Station of District Kanpur Nagar. The allegations made therein are that such officer, being Investigating Officer in Case Crime No. 458 of 2009 registered at the aforesaid police station of district Kanpur Nagar, had made false and derogatory entries against the informant Sri Shiva Kant Tripathi, i.e. the writ petitioner herein, in some of the Parchas of the case diary of said criminal case and for this purpose, backdating of few Parchas have been done by him. The investigation of such criminal case registered against Sri Chaudhary Ramesh Singh has been conducted by the Investigating Officer of Economic Offences Wing which has been concluded and the last progress report has been forwarded to the superior authority for its approval, according to the procedure of the Economic Offences Wing. It has further been submitted that said officer was suspended but he filed a writ petition, being Writ Petition No. 2580 (S/S) of 2011 (Chaudhary Ramesh Singh Vs. State of U.P. and others), and got an order of stay therein. Such writ petition is still pending.
Apart from what has been stated in the aforesaid affidavit of compliance, a copy of the latest progress report, as stated above, has also been produced before this Court under the sealed cover, upon perusal of which it appears that the same has been forwarded to the superior authority for approval. Therefore, confidentiality of such report has to be maintained as of now. Hence, such report is also directed to be kept under the sealed cover.
Both, Mr. Malhotra and Mr. Lalit have cited before us a judgement of the Supreme Court reported in 2000 (1) SCC 210 (State of Karnataka Vs. Arun Kumar Agarwal and others), which deals with the scope of the writ Court with regard to police investigation. In paragraph-16 of such judgement it has been held as follows:
"16. ..... The acts of persons will not be the subject of criminal investigation unless a crime is reported to have been committed or reasonable suspicion thereto arises. On mere conjecture or surmise as a flight of fancy that some crime might have been committed, somewhere, by somebody but the crime is not known, the persons involved in it or the place of crime unknown, cannot be termed to be a reasonable basis at all for starting a criminal investigation. However, condemnable be the nature or extent of corruption in the country, not all acts could be said to fall in that category. The attempt made by the High Court in this case appears to us to be in the nature of a blind shot fired in the dark without even knowing whether there is a prey at all. That may create sound and fury but not result in hunting down the prey. ...."
According to us, the ratio propounded by the Supreme Court is that in each and every case the Court cannot monitor the police investigation. The investigation will be left to the investigating agency.
In the aforesaid background, we are of the view that we have no interest to monitor the case indefinitely or interfere with the investigation. But when the matter has proceeded upto the extent of receiving the report of the Authority under the PML Act and also completion of investigation of scheduled offences, if any, by any of the agencies of the Sate Government, particularly in respect of misuse of chair, if any, when the respondent no. 7 was working as Chairman of the Uttar Pradesh Development Council, the Court cannot dispose of the matter either way finally. However, since we find that the authority under the PML Act has already acted upon as per the order of the Division Bench of this Court dated 20th May, 2011 but expressed its genuine predicament, we are of the view that the modification/clarification application can be disposed of and accordingly is disposed of keeping necessary investigation, if any, with any of the agencies of the State about the scheduled offences.
Liberty is granted to the learned Government Advocate to mention this matter for early disposal after obtaining necessary instructions in this regard.
As a consequential effect, no order is needed to be passed in the recalling application, therefore, the same is rejected.
However, no order is passed as to costs in any of the applications.
(Justice Amitava Lala, ACJ)
We agree.
(Justice Shashi Kant Gupta)
(Justice Pradeep Kumar Singh Baghel)
Dated: 12th October, 2012.
SKT/-
Hon'ble Amitava Lala, Acting Chief Justice.
Hon'ble Shashi Kant Gupta, J.
Hon'ble Pradeep Kumar Singh Baghel, J.
The modification application is disposed of.
No order is passed as to costs.
Dt./-12.10.2012.
SKT/-
For order, see order of the date passed on the separate sheets (twelve pages).
Dt./- 12.10.2012.
SKT/-
Order on:
Criminal Misc. Recall Application No. 292338 of 2011
IN
Criminal Misc. Writ Petition No. 4909 of 2010.
Shiv Kant Tripathi. ...... ...... Petitioner.
Versus
State of U.P. And others....... .......Respondents.
----
Hon'ble Amitava Lala, Acting Chief Justice.
Hon'ble Shashi Kant Gupta, J.
Hon'ble Pradeep Kumar Singh Baghel, J.
In view of the order of the date passed on Criminal Misc. Application (Modification/Clarification) No. 174093 of 2011, filed in the aforesaid writ petition i.e. Criminal Misc. Writ Petition No. 4909 of 2010, this application is rejected.
However, no order is passed as to costs.
Dt./-12.10.2012.
SKT/-
For order, see order of the date passed on Criminal Misc. Application (Modification/Clarification) No. 174093 of 2011, filed in the aforesaid writ petition i.e. Criminal Misc. Writ Petition No. 4909 of 2010.
Dt./- 12.10.2012.
SKT/-
Order on the Order-sheet:
Criminal Misc. Writ Petition No. 4909 of 2010.
Shiv Kant Tripathi. ...... ...... Petitioner.
Versus
State of U.P. And others....... .......Respondents.
----
Hon'ble Amitava Lala, Acting Chief Justice.
Hon'ble Shashi Kant Gupta, J.
Hon'ble Pradeep Kumar Singh Baghel, J.
Leave is granted to the respondent no. 7 to file supplementary affidavit.
Let the supplementary affidavit, which is stated to have already been served upon the other side, be kept with the record.
The matter will appear on 02nd November, 2012 at 2.00 P.M.
The State Government is directed to take a decision as per the order of the date i.e. 12th October, 2012 passed on Criminal Misc. Application (Modification/Clarification) No. 174093 of 2011 and inform this Court on the next date.
Dt./-12.10.2012.
SKT/-
