Saptarshi Pandey vs The State Of U.P. & 3 Others
2017 Latest Caselaw 7398 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 42
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 24157 of 2017
 
Petitioner :- Saptarshi Pandey
 
Respondent :- The State Of U.P. & 3 Others
 
Counsel for Petitioner :- Satyendra Chandra Tripath,Radha Kant Ojha
 
Counsel for Respondent :- G.A.
 
Hon'ble Ramesh Sinha,J.

Hon'ble Vivek Kumar Singh,J.

(Delivered by Hon'ble Ramesh Sinha,J.)

1. Heard Sri Radha Kant Ojha, assisted by Sri S.C.Tripathi, learned counsel for the petitioner on merits, Sri Ashish Pandey, learned A.G.A. for the State and perused the impugned FIR as well as material brought on record.

2. On 7.11.2017 when the matter was taken up by this Court,this Court passed the following order, which is quoted here-in-below:-

"Heard Sri R.K.Ojha, learned Senior Advocate, assisted by Sri Satyendra Chandra, learned counsel for the petitioner and Sri Vikas Sahai, learned AGA for the State.

This writ petition has been filed with a prayer for quashing of the impugned FIR dated 23.10.2009 registered as Case Crime No.507 of 2009, under Section 409 I.P.C. and Section 13(1) C & 13(1) D of Prevention of Corruption Act, 1988, Police Station-Raunapar, District Azamgarh.

The Court has come across many cases under the Prevention of Corruption Act where the investigation of the case has been kept pending for more than a decade and it appears that accused in collusion with the Investigating Officer have avoided their arrest and they come up to challenge the FIR lodged under the Prevention of Corruption Act after their retirement from service after a lapse of 10 years or above, who have committed the crime while they were holding the post of public servant and enjoyed the privilege of service.

The attention of the State Government has been drawn by this Court time and again through Additional Advocate General, U.P. and through the State Counsel, but it appears that the State Government has failed to check and control over the Investigating Officer who kept the investigation pending for the last so many years for their ulterior motive endlessly, by which the object and purpose of the Prevention of Corruption Act is defeated.

Put up day after tomorrow, i.e., on 9.11.2017 in order to enable the learned AGA to inform this Court as to why the investigation of the case has been kept pending by the Investigating Officer for the last 8 years and further to inform whether the charge sheet has been submitted in the matter or not and why the petitioner was not arrested when the FIR was lodged on 23.10.2009 and pressure has been mount upon by the Investigating Agency on the petitioner for taking coercive action against him, who has rushed to this Court after a lapse of 8 years of lodging of the FIR for quashing of the same.

The Registrar General of this Court is directed to send a copy of this order to the Chief Secretary of the State for necessary information and follow up action forthwith.

Let a copy of this order be given to the learned AGA for its compliance today."

3. Thereafter on 9.11.2017, following order was passed by this Court, which is quoted here-in-below:-

"Heard Sri Radha Kant Ojha, learned Senior Advocate assisted by Sri Satyendra Chandra Tripathi, learned counsel for the petitioner and Sri Vikas Sahai, learned AGA for the State.

This writ petition has been filed with a prayer for quashing of the impugned FIR dated 23.10.2009 registered as Case Crime No.507 of 2009, under Sections 409 I.P.C. and Section 13 (1) C and 13(1) D of Prevention of Corruption Act, 1988, Police Station Raunapar, district Azamgarh.

Learned AGA states that he has received instructions in the matter in which it has been mentioned that D.F.R was prepared and approved by the investigating agency on 10.4.2013. In the meanwhile two Investigating Officers investigated the matter and the third Investigating Officer took investigation of the case on 3.7.2017 and he has applied for sanction for prosecution of the petitioner who has already retired from the service on 30.6.2001 prior to lodging of the impugned FIR on 23.10.2009.

The Principal Secretary, Home, U.P. Lucknow is directed to appear in person as this Court has come across many cases under the Prevention of Corruption Act in which it transpires that the accused who being public servant have committed offence under the Prevention of Corruption Act as well as under the Indian Penal Code FIR has been lodged against them but no steps is taken against them timely for grant of prosecution sanction by the competent authority and it appears that they in collusion with Investigating Officers of the case have avoided their arrest and they come up to challenge the FIR lodged under the Prevention of Corruption Act after their retirement from service and some time while they are in service and further they also challenge the order granting sanction of their prosecution by the competent authority. In the present case, we call upon the Principal Secretary (Home), U.P. Lucknow of the State as to under what circumstances, the prosecution sanction of the petitioner was sought on 3.7.2017 as the petitioner has already retired from service on 30.6.2001 and investigation of the case has been kept pending for the last about eight years and no efforts were made to arrest him and the police has swung into action now to arrest him.

The learned AGA has stated that he has also sent the copy of the order of this Court dated 7.11.2017 to the Chief Secretary of the State passed in the present petition for necessary information and follow up action and also to Director General, Vigilance, U.P. He too has admitted the fact and stated that this Court has been drawing the attention of the State time and again about serious latches on the part of the investigating agency for keeping the cases under the Prevention of Corruption Act and Section 409 IPC etc. for several years which defeat the object of the said Act.

Today also yet another matter has come up before this Court in writ petition no.24416 of 2017. In the said case FIR is of the year 2007 and the petitioner after ten years of registration of the FIR has come up before this Court challenging the sanction order for his prosecution which has been accorded by the competent authority after his retirement and the sanction has been granted on 10.8.2017.

Let the present matter be also listed on 21.11.2017 on which date respondent no.1 the Principal Secretary (Home), U.P. Lucknow shall appear in person before this Court.

After passing of the aforesaid order, the learned AGA states that the personal appearance of the Principal Secretary of the State may not be called for and only his personal affidavit may be sought by this Court in the matter as he assures the Court that no such latches would be seen by this Court in future.

In view of the above, we at this stage only direct the Principal Secretary (Home), U.P. Lucknow to file his personal affidavit in the matter and the issues referred above and drop the above order of securing his personal appearance in the matter.

List the matter on 21.11.2017.

Let a copy of this order be given to the learned AGA for its compliance."

4. In compliance of the Court's order dated 7.11.2017, an affidavit of compliance has been filed by the learned AGA on behalf of Sri Arvind Kumar, Principal Secretary (Home/Vigilance), Government of U.P.,Lucknow today in Court, is taken on record.

5. In the affidavit, the reasons given for delay in granting sanction for prosecution of the petitioner and further delay in his arrest in pursuance of the FIR lodged against him is not at all satisfactory and we deprecate this practice.

6. In paragraph no.2 of the affidavit of compliance, the Principal Secretary (Home/Vigilance), Government of U.P., Lucknow tried to submit his explanation with respect of certain queries made by the Court, which are as under:

(A)- As to why after lodging of the FIR dated 23.10.2009 the accused was not arrested.

(B)- As to why the investigation was kept pending for long time.

(C)- As to why no effective steps were taken for obtaining the prosecution sanction, the delay in filing the charge sheet.

(D)- As to what is the effective control of the State Government on the Investigating Officers so that the legislative intent under the Prevention of Corruption Act is not frustrated on account of the laxity of the investigation process.

7. The queries made by the Court has been answered by the Principal Secretary (Home/Vigilance), Government of U.P., Lucknow in paragraph nos. 4, 5, 6, 7, 8, 9 of the affidavit of compliance which are as under:-

" 4. That as per the order dated 7.11.2017 & 9.11.2017, this Hon'ble Court has sought explanation as to "why the petitioner was not arrested in pursuance of the FIR lodged on 23.10.2009". In this regard, it is humbly submitted that as per the report dated 19.11.2017 received by Director, U.P. Vigilance Establishment, it has been informed that the Vigilance Establishment, according to prevailing practice, does not immediately arrest the accused soon after lodging of the FIR. The immediate arrest is restored only in trap cases. It is further submitted that in other cases, i.e., cases other than the trap cases, the Draft Final Report (DFR) is sent to the Government of Uttar Pradesh and after approval thereof by the Government of Uttar Pradesh, the concerned  Investigating Officer obtains the prosecution sanction from the competent authority of the concerned Administrative Department and thereafter, the chargesheet/DFR is filed before the concerned Court. According to the practice, the arrest of the accused is effectuated only after getting approval of DFR and order of prosecution sanction and prior to filing of the chargesheet/DFR before the concerned Court. This is the usual practice and method, which is being adopted by the Vigilance Establishment since a very long time. 

5. That by the order dated 7.11.2017 and 9.11.2017, the explanation has also been sought as to "why the investigation of the case has been kept pending by the investigating officer for the last 8 years". In explanation thereof, it is submitted that the FIR was lodged on 23.10.2009 and the investigation was commenced by Sri Suresh Ram, Inspector on 5.11.2009. It was thereafter that the necessary documents were collected from the concerned department and the required statements were obtained. After completing the process of collection of evidence, the report was sent to the State Government on 10.4.2013. The Investigation process was completed in around three and a half years.

6. That this Hon'ble Court vide orders dated 7.11.2017 and 9.11.2017 has also sought a report "as to whether the charge sheet has been submitted in the matter or not". In this regard, it is humbly submitted that the competent authority granted prosecution sanction on 12.9.2016 and the copy of the same was received by the concerned investigating officer on 11.7.2017. After receiving the prosecution sanction, the investigating officer is making necessary steps/efforts for filing the charge sheet before the competent court.

7. That this Hon'ble Court vide order dated 7.11.2017and 9.11.2017 has also observed that " under the Prevention of Corruption Act as well as under the Indian Penal Code, FIR has been lodged against the petitioner but no steps has been taken against them for timely grant of prosecution sanction by the Competent Authority." In this regard it is humbly submitted that after the completion of investigation, the report is sent to the Vigilance Department, Government of Uttar Pradesh for its approval. It is only after the approval is given by the State Government, the necessary follow up action for taking decision regarding prosecution sanction is done by the concerned administrative department, in which the accused is serving. It is only after the approval given by the State Government, the concerned Administrative Department grants prosecution sanction under Section 197 Cr.P.C. and also under Section 19 of Prevention of Corruption Act, as the case may be. In the present case, the Vigilance Department of the Government of Uttar Pradesh granted approval on 17.1.2014 for initiation of the process for obtaining prosecution sanction from the concerned Administrative Department (Secondary Education Department). In pursuance whereof, the reminders dated 12.8.2014 and 3.11.2015 were also sent by the Vigilance Department of the Government of Uttar Pradesh to the concerned Administrative Department (Secondary Education Department). The Vigilance Establishment also wrote letters on 14.3.2014, 9.1.2015, 13.9.2016, 15.10.2016 and 20.1.2017 to the concerned Sanctioning Authority, i.e., District Inspector of Schools. On 11.7.2017, the Investigating Officer contacted the concerned Sanctioning Authority for the said purpose of prosecution sanction and it was only then, he came to know that the prosecution sanction has been granted on 12.9.2016 itself. The said prosecution sanction was not received either at the Sector Office of Vigilance Establishment at Gorakhpur or at Headquarter in Lucknow. After receiving the order of prosecution sanction on 11.7.2017, the Investigating Officer has initiated process for filing the charge sheet before the concerned Court. In the present case, the approval on DFR for proceeding further with the prosecution was granted by the Vigilance Department of the Government of Uttar Pradesh on 17.1.2014 and thereafter the concerned Administrative Department took almost 2 years and 7 months for granting the prosecution sanction. In this regard the deponent has sent a letter on 23.11.2017 requesting the Addl. Chief Secretary, Secondary Education Department, State of U.P. for taking appropriate action for the delay caused in grant of prosecution sanction. It has also been requested that necessary action be taken against the officers, who have been involved for causing the delay in grant of prosecution sanction and also to respond with the follow up action. Copy of the letter dated 23.11.2017 issued by the Principal Secretary, Secondary Education Department, State of U.P. is annexed as Annexure-1 to the affidavit of compliance.

8. That this Hon'ble Court vide order dated 7.11.2017 and 9.11.2017 has also observed that "it appears that the petitioner is  in collusion with the Investigating Officer for avoiding his arrest." In report the aforesaid observation, it is humbly submitted that after loding of the FIR on 23.10.2009, Shri Suresh Ram commenced the investigation on 5.11.2009. After collecting the evidence, which includes documents from the concerned administrative department and also the statement of various officials of the said department, the Investigating Officer completed the investigation in the period of three years and thereafter he submitted his report dated 10.4.2013 to the Government.  On the DFR of the investigation of the case in hand, the Government of Uttar Pradesh took its decision on 17.1.2014 for proceeding with the prosecution. The Vigilance Establishment after retirement of Shri Suresh Ram, Inspector, has allotted the file to Shri Rana Pratap Singh, Inspector, who has done the formalities regarding obtaining of the prosecution sanction from the concerned Administrative department. Shri Rana Pratap Singh, Inspector also retired on 30.9.2014 and in his place Shri Bageru Ram, Inspector, has taken the charge and he has also retired on 30.6.2017 and presently the matter is being looked after by Shri Om Prakash Singh, Inspector. In this regard, necessary directions have been issued by the deponent vide order dated 19.11.2017 to the Director, U.P. Vigilance Establishment to look into the matter and take appropriate action against the persons responsible for causing the delay in the investigation of the case in hand. Copy of the order dated 19.11.2017 passed by the Principal Secretary (Vigilance) giving Instruction to the Director, U.P. Vigilance, Establishment is annexed as Annexure-2 to the affidavit of compliance.

9. This this Court vide orders dated 7.11.2017 and 9.11.2017 has also observed as to "under what circumstances, the prosecution sanction of the petitioner was sought on 3.7.2017 as the petitioner has already retired from service on 30.6.2001." In this regard, it is humbly submitted that as per Section 197 Cr.P.C., the sanction is required even after the retirement of the public servant. As per thelanguage of Section 197 Cr.P.C.,l it has been provided that "any person who is or was.......". Thus, in view of this language used in Section 197 Cr.P.C., the prosecution is required. The accused Sri Saptarshi Pandey retired on 30.6.2001. In pursuance of the complaints dated 21.3.2003, an open enquiry was directed to be conducted by the Vigilance Establishment and after considering the report of the Vigilance Establishment on 8.6.2009, it was decided that an FIR be registered against the accused Sri Saptarshi Pandey. It was in this situation, the Vigilance Establishment started investigation against the superannuated employee."

8. From the aforesaid explanation given by the Principal Secretary (Home/Vigilance), Government of U.P.,Lucknow, the Court is not at all impressed with it as the persons who are facing prosecution for the offences under the Prevention of Corruption Act, 1988 along with offence under the Indian Penal Code have to be dealt with in a serious manner for speedy conclusion of the trial. The explanation given by the Principal Secretary (Home/Vigilance), Government of U.P.,Lucknow, referred above, shows the casual manner in which the cases under the Prevention of Corruption Act are being dealt with by the Investigating/Prosecuting Agency. The long drawn process of vigilance inquiry, submission of DFR, sanction for prosecution of the accused and their arrest in such cases reflect that the purpose and object of the said Act is being frustrated by the Investigating/Prosecuting Agencies in collusion with the accused persons who are facing prosecution for the offence under the Prevention of Corruption Act and also under the Indian Penal Code for their oblique motive.

9. In the present case and the cases connected with the present case shows that how the Investigating/Prosecuting Agencies adopted a very casual approach in getting the investigation of the case concluded within a stipulated period and further their callousness to get the trial brought to its logical end. In the present case, FIR has been lodged on 23.10.2009, whereas the petitioner retired from the service on 30.6.2001 and sanction for prosecution was granted on 12.9.2016 by the competent authority, for which it has been stated by the Principal Secretary that on 23.11.2017 a letter has been written to the Additional Chief Secretary, Secondary Education Department of State of U.P. for taking appropriate action for the delay caused in grant of prosecution sanction and also for taking necessary action against the erring officials.

10. In one such cases which is connected with the present case, i.e., Crl. Misc. Writ Petition No.24414 of 2017 (Dinesh Singh Chahar Vs. State of U.P. and others) in which Dinesh on whose complaint the FIR was lodged by Inspector Vigilance, Gorakhpur against the the accused K.L.Saraswat, Lekhadhikari/Finance Officer, Office of B.S.A., Agra, which was registered as Case Crime No.254 of 2017, under Sections 7, 13(1) D, 13(2) d of Prevention of Corruption Act, 1988, Police Station Shahganj, District Azamgarh, the charge sheet was not submitted against the accused within the stipulated period and he was released on bail on 2.8.2017 in view of provision contained under Section 167(2) Cr.P.C. and it has been stated by the Principal Secretary that in the absence of approval of DFR, the investigation of the case in question was still going on and as soon as the comments/report is received by the Director, Vigilance, appropriate action shall be taken on the matter, which goes to show that the Investigating/Prosecuting Agencies are not at all serious in dealing in such types of cases and the accused is taking benefit of the lethargic approach of the Investigating Agency on technical ground which is a matter of grave concern and is a glaring example of collusion between the accused and the Investigating Agency.

11. So far as merits of this case is concerned, learned counsel for the petitioner submits that the petitioner is innocent and has been falsely implicated in the present case. He further submits that the petitioner was appointed as Lecturer Goography in July, 1965 in Sri Subhash Inter College Karkhiya, Azamgarh (herein-after referred as the 'Institution'). Thereafter on 1.7.1989, the services of the petitioner's were confirmed as Principal of the Institution and he has retired from the service from the post of Principal on 30.6.2001. He further submits that no offennce is made out under Section 409 I.P.C. read with Sections 13(1) C & 13(1) D of the Prevention of Corruption Act, 1988, against the petitioner as the amount in question was collected from the students by the Class Teachers and it was given to Mr. Amala Singh, Head Clerk of the Institution and Mr. Amala Singh, Head Clerk  has not deposited the said amount in the Bank Account which was run and controlled by the petitioner and Manager. The allegation levelled against the petitioner is absolutely false, frivolous and baseless, hence, FIR be quashed.

12. Learned A.G.A. opposed the prayer for quashing of the FIR which discloses cognizable offence.

13. As the petitioner has retired from the service, he is aged about 78 years as on date, he has not been arrested by the Investigating Agency till date and investigation is still pending, hence, we direct the Investigating Officer of the case to conclude the investigation within a period of six weeks from today and submit the police report under Section 173(2) Cr.P.C. before the competent Court in accordance with law.

14. For a period of six weeks from today or till submission of police report under Section 173(2) Cr.P.C., whichever is earlier, no coercive action shall be taken against the petitioner.

15. Before parting with the case and taking into account the facts and circumstances of the present case and other cases connected with the present petition, which involve the similar issue, in which affidavits have also been filed by the Principal Secretary (Home/Vigilance), Government of U.P. ,Lucknow, it is painful for us to note that a very casual and lethargic approach is being adopted by the Investigating/ Prosecuting Agency in dealing with the cases relating to the offence under the Prevention of Corruption Act and Indian Penal Code, such as under Section 409 I.P.C. etc., the accused being public servant while they being in service commit offences under the said Act and Indian Penal Code cases go scot-free and retired from service and avoid their arrest and delay their prosecution in collusion with the Investigating/ Prosecuting Agency for their ulterior motives on the ground that the matter has been pending vigilance inquiry and sanction for their prosecution is awaited and delaying the investigation and speedy trial of such cases which should have been brought to its logical end within a reasonable stipulated period, when they retire from the service and are aging they come with a plea before the Court for quashing of the FIR on the ground that investigation in pursuance of the FIR registered against them and prosecution is being pending for the last more than a decade and their prosecution is futile exercise and the same be quashed which frustrate the intent of the Legislature in enacting the Prevention of Corruption Act,1988 in connivance with the Investigating/ Prosecuting Agency.

16. The Apex Court in the case of Subramanian Swamy v. Dr. Manmohan Singh, AIR 2012 SC 1185 has held that corruption in our country not only poses a grave danger to the concept of Constitution governance, it also threatance the very foundation of Indian democracy and the rule of law. The magnitude of corruption in our public life incompatible with the concept of a socialist, secular, democratic republic. It cannot be disputed that where corruption begins all right ends. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it.

Corruption in a society is required to be detected and eradicated at the earliest as it shakes "the socio-economic political system in an otherwise healthy, wealthy, effective and vibrating society." Liberty cannot last long unless the State is able to eradicate corruption from public life. The corruption is a bigger threat than external threat to the civil society. Corruption is instrumental in improper implementation and enforcement of policies adopted by the Government. Thus, it is not merely a fringe issue but a subject matter of grave concern and requires to be decisively dealt with.

17. The personal affidavit filed by Principal Secretary (Home/Vigilance), Government of U.P., Lucknow today only reflects the sorry state of affairs of the Investigating/Prosecuting Agency in dealing such cases, which cannot be tolerated by this Court at any cost. Hence, we direct the Chief Secretary of the State of U.P. to formulate a Policy or to issue a Circular etc. for dealing such cases seriously and strictly for speedy conclusion of the investigation, submission of police report 173(2) Cr.P.C. before the competent court, grant of sanction for prosecution by the competent authority and arrest of the accused accordingly, so that the trial of the accused of such cases are brought to its logical end within a reasonable time to meet the object of the said Act.

18. With the above direction, this petition is finally disposed of.

19. The Registrar General of this Court is directed to send a copy of this order to the Chief Secretary of the State of U.P., Lucknow, for necessary information and its compliance.

20. Let a copy of this order be given to the learned AGA for being sent to the Principal Secretary (Home/Vigilance), Government of U.P., Lucknow for necessary information and follow up action forthwith.

(Vivek Kumar Singh, J.)     (Ramesh Sinha, J.) 
 
Order Date :- 29.11.2017/NS