Vinod Kumar Katheria vs State Of U.P. And 4 Others
2021 Latest Caselaw 6365 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 45
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 3486 of 2021
 

 
Petitioner :- Vinod Kumar Katheria
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Bashishth Narayan Upadhyay
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Pritinker Diwaker,J.

Hon'ble Samit Gopal,J.

Matter taken up through video conferencing.

Heard Sri B.N. Upadhyay, learned counsel for the petitioner and Sri J.K. Upadhyay, learned counsel for the State and perused the material on record.

This writ petition has been filed by the petitioner seeking quashment of F.I.R dated 20.07.2020 registered as Case Crime No. 0476 of 2020 for the offence under Section 167, 420, 467, 468, 471 I.P.C., Police Station Kotwali, District Mainpuri with a further prayer to stay the arrest of the petitioners during the pendency of the writ petition.

Learned counsel for the petitioner argued that the impugned first information report has been lodged on the basis of an enquiry report which as of now, does not exist. It is argued that disciplinary proceedings against the petitioner was set aside in a Special Appeal by this Court against which the State of U.P. preferred a Civil Appeal No. 149 of 2017 (State of U.P. vs. Vinod Kumar Katheria) before the Apex Court, wherein, the order passed in the Special Appeal was affirmed and the matter was remanded back to the authorities for de-nova enquiry from the stage of conducting enquiry, if the authorities so desire to continue the enquiry. It is argued that the Civil Appeal was disposed of with a direction that the petitioner herein be reinstated within a period of four weeks and the authorities shall take a decision whether to continue the enquiry proceedings or not with certain other directions. Annexure-1 to the writ petition being the said judgment dated 23.09.2019 has been placed before this Court. It is argued that as such, the basis of lodging of the impugned first information report gets struck off and since the enquiry report after the departmental enquiry has been set aside, the present first information report could not have been lodged and as such, deserves to be quashed. It is argued that the petitioner was appointed on the post of Lekhpal and was suspended vide order dated 17.05.2008 and an enquiry was done after which an enquiry report dated 09.12.2008 was submitted against the petitioner following which he was dismissed from service on 07.02.2009 and feeling aggrieved by the same, he filed an appeal before the Appellate Authority which was also dismissed against which he preferred a writ petition before this Court which was dismissed vide order dated 16.04.2010 on the ground that an alternative remedy exists and subsequent thereto, a revision was filed before the concerned authority which was also dismissed vide order dated 20.06.2011 which was challenged before this Court in Writ Petition No. 38583 of 2011 which was dismissed vide judgment dated 19.02.2016 against which a Special Appeal was filed which was allowed by a Division Bench of this Court. It is argued that since the entire dismissal proceedings initiated against the petitioner and the order of dismissal passed against him was set aside in the Special Appeal which was affirmed by this Apex Court, the present first information report with allegations being the same cannot be sustained and deserves to be quashed.

Per contra, learned counsel for the State opposed the prayer for quashing and argued that the Special Appeal before this Court was allowed on the ground of non-affording of opportunity to the petitioner by the Enquiry Officer. It is argued that the case was not decided on its own merits but was only decided on the ground of non-affording an opportunity to the petitioner in the enqiury. It is argued that even the Apex Court has in its judgment remanded the matter back to the authorities just in order to give an opportunity to the petitioner to meet the ends of justice and had ordered for a de-nova enquiry from the stage of conducting enquriy. It is argued that the said enquiry was not set aside on merits. It is argued that the writ petition lacks merit and deserves to be dismissed as the first information do discloses a cognizable offence which needs investigation.

The Apex Court in the case of Ashoo Surendranath Tewari vs. CBI and Another: (2020) 9 SCC 636 has held as follows:-

12. After referring to various judgments, this Court then culled out the ratio of those decisions in para 38 as follows: (Radheshyam Kejriwal case4 SCC p. 598)

"38. The ratio which can be culled out from these decisions can broadly be stated as follows:

(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;

(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."

13. It finally concluded: (Radheshyam Kejriwal case4, SCC p. 598, para 39)

?39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court.?

Perusal of the impugned FIR and material on record makes out a prima facie case against the petitioner. The submissions made by the learned counsel for the petitioner relate to disputed questions of facts, which cannot be adjudicated upon by this Court in jurisdiction of under Article 226 of Constitution of India.

The Full Bench of this Court in Ajit Singh @ Muraha Vs. State of U.P. and others : (2006) 56 ACC 433 reiterated the view taken by the earlier Full Bench in Satya Pal Vs. State of U.P. and others : 2000 Cr.L.J. 569 after considering the various decisions including State of Haryana Vs. Bhajan Lal and others : AIR 1992 SC 604 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.

Further the Apex Court in the case of State of Telangana v. Habib Abdullah Jellani : (2017) 2 SCC 779 has disapproved an order restraining the Investigating Agencies arresting the accused where prayer of quashing the First Information Report has been refused.

Looking to the facts and circumstances of the case and the law as laid down by the Apex Court and also the factum that the said enquiry was set aside on the ground of it being done without affording an opportunity of hearing to the petitioner and not on merits, the present writ petition is dismissed.

The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the petitioner (s) along with a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 17.6.2021

AS Rathore