Allahabad High Court

Ankur Agarwal vs State Of U.P. Thru. Prin. Secy. ... on 30 June, 2021

Bench: Ramesh Sinha, Vikas Kunvar Srivastav




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 9
 
Case :- MISC. BENCH No. - 10928 of 2021
 
Petitioner :- Ankur Agarwal
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home. Lko & Others
 
Counsel for Petitioner :- Ajay Pratap Singh 'Vatsa'
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ramesh Sinha, J.

Hon'ble Vikas Kunvar Srivastav, J.

(Per Ramesh Sinha, J. for the Bench)

(1) The Court has convened through Video Conferencing.

(2) Heard Sri Ajay Pratap Singh ''Vatsa', learned counsel for the petitioner and learned AGA for the State and perused the material brought on record.

(3) The present writ petition under Article 226 of the Constitution of India has been filed by the petitioner, Ankur Agarwal, challenging the First Information Report dated 01.01.2014 so far as it relates to the petitioner registered as F.I.R. No. 01 of 2014, under Sections 409/120-B of the Indian Penal Code and Section 13 (1) read with Section 13 (2) of the Prevention of Corruption Act, 1988.

(4) Learned counsel for the petitioners has argued that the petitioner is lease holder of mining in District Mirzapur. The State Government took a decision to construct Memorial and Parks in the city of Lucknow and NOIDA and for this purpose, a Committee comprising Managing Director of U.P. Rajkiya Nirman Nigam Ltd., the Director of the Department of Geology and Mining and the Joint Director was constituted for making inspection in the Ahraura Region of District Mirzapur to verify as to whether sufficient quantity of pink sandstones were available or not. The said Committee, after due inspection, found the sufficient quantities of pink sandstones in the aforesaid area and, therefore, a Committee of seven officials of which three officers belonged to the U.P. Rajkiya Niram Nigam Ltd and four belonging to the Geology Department conducted a survey and submitted its report. In pursuance thereof, a letter dated 13.07.2007 was sent by the Director, Geology and Mining, U.P. to the Managing Director of U.P. Rajkiya Nirman Nigam Ltd. to the effect that it has been decided that a consortium of lease holders should be constituted for the purposes of entering into an agreement for the purposes of supply of sandstone of the required quantity and necessary steps were recommended to be taken for the aforesaid purpose. Thereafter, individual letters of intent for supply of Mirzapur sandstones were issued to the petitioner. On the basis of the said letter of intent of the State Government, the petitioner supplied requisite quantity of sandstone to the department and has also received the payment at the agreed rate and at that relevant time, there is no complaint or allegation regarding quality or quantity of material supplied by the petitioner to the State Government but after change of Government in Uttar Pradesh, the newly formed Government has instituted an inquiry in the matter and entrusted it to the U.P. Lok Ayukta to enquire into the allegations of corruption and irregularities during the period 2007 to 2011 as regards to supply of sandstone from District of Mirzapur, Sonbhadra, Bayana, Bharatpur/Jaipur (Rajasthan) and other districts.

(5) It has been argued by the learned Counsel for the petitioner that the Lok Ayukta, without affording any opportunity of hearing, conducted enquiry and submitted his report to the State Government. He argued that there is no allegation against the petitioner in the finding recorded by the Lok Ayukta that the required quantity of sandstones was not supplied or the sandstone supplied was of an inferior quality nor the allegation that there is collusion between the petitioner and the officials of State Government as uniform and there was no difference whatsoever regarding the rates at which such supply was made by an individual lease holder. However, a notice dated 29.08.2013 and 20.09.2013 was served upon the petitioner, which was issued by the District Magistrate, Mirzapur to show cause as to why his mining leases be not cancelled and his name be not placed in the blacklist. Feeling aggrieved, the petitioner has filed Writ-C No. 62139 of 2013 : Ankur Agarwal Vs. State of U.P. and others and other similarly situated lease holder has also filed Writ-C No. 54197 of 2013 : Panna Lal and 15 others Vs. State of U.P. and others, before this Court at Allahabad, in which interim protection has been granted by the Court vide orders dated 10.10.2013 and 13.11.2013, respectively, restraining the District Magistrate, Mirzapur to take any further action pursuance to notice issued by him. The aforesaid writ petition is pending before this Court at Allahabad.

(6) Learned Counsel for the petitioner has further argued that in pursuance of the recommendations of the Lok Ayukta, the U.P. Vigilance Establishment, Sector Lucknow has lodged F.I.R. on 01.10.2014, registered as F.I.R. No. 1 of 2014, under Sections 409/120-B I.P.C. and Section 13 (1) read with Section 13 (2) of the Prevention of Corruption Act, at Police Station Gomti Nagar, District Lucknow. He argued that from perusal of the aforesaid F.I.R. reveals that the same is registered against 19 persons and the name of the petitioner is not there. However, during the course of investigation, a summon/notice dated 14.02.2014/15.02.2014 was issued to the petitioner by the Vigilance Establishment for appearance on 03.03.2014 and again notices dated 30.05.2015 and dated 02.02.2016 were issued to the petitioner by the Vigilance Department requiring him to produce certain documents. The petitioner has complied with the aforesaid directions of the establishment. Thereafter, the matter remained silent but all of a sudden on 15.05.2021, while the petitioner was not in his house, the local police conducted raid and stated that the petitioner is being required for arrest in pursuance of the impugned F.I.R.

(7) Learned Counsel for the petitioner has further submitted that perusal of the impugned F.I.R. mainly revolves around with an allegation that without adopting the tender process, the work has been given by means of consortium and the sandstone which could have been purchased at a rate of Rs.50 to Rs.75 have been purchased at an excessive rate of Rs.150/- per cubic feet without conducting survey of market rate collusively. He argued that out of 59 identically placed suppliers, only 20 suppliers have been targeted with ulterior motive under political influence. He argued that neither offence under Section 409 I.P.C. nor the provisions of Prevention of Corruption Act are attracted to the petitioner, who is a contractor although he has been involved in the construction activities entrusted to him by U.P. Rajkiya Nirman Nigam Ltd. and furthermore, no charge-sheet has yet been filed against the petitioner pursuant to the impugned F.I.R. He argued that impugned FIR is abuse of the process of law. Thus, the impugned FIR is liable to be quashed.

(8) Learned Counsel for the petitioner has further stated that two accused persons, namely, Ashok Kumar and Panna Lal Yadav have also challenged the impugned F.I.R. by filing writ petition No. 6369 of 2020 (M/B) and 12206 of 2020 (M/B), respectively, wherein vide orders dated 06.03.2020 and 31.07.2020, respectively, a Co-ordinate Bench of this Court has stayed the arrest of the aforesaid writ petitioners. Therefore, the benefit of the aforesaid interim orders may be granted to the present writ petitioner.

(9) Per contra, learned AGA for the State opposed the prayer of the petitioner for quashing the impugned F.I.R. and also staying the arrest of the petitioner and argued that from the perusal of the FIR, prima facie, it cannot be said that no cognizable offence is made out, hence, no ground exists for quashing the F.I.R. or staying the arrest of the petitioner. Moreover, the petitioner has an efficacious remedy for seeking anticipatory bail in the matter before the competent Court, which has been made applicable in the State of U.P. w.e.f. 06.06.2019.

(10) Learned AGA has also argued that the the State Government has sanctioned the prosecution of co-accused, Rajeev Kumar Singh, Heera Lal, Rakesh Chandra, Rajesh Chaudhari, Shiv Pal Singh, Bhupendra Dutt Tripathi and Shukh Lal Yadav, who were public servant, in respect of F.I.R. No. 01 of 2014, which is the impugned F.I.R. in the present case, and the said sanction order was challenged by them by filing Writ Petition Nos. 25382 of 2020 (M/B), 25759 of 2020, 25756 of 2020 (M/B), 25639 of 2020 (M/B), 25508 of 2020 (M/B), and 25453 of 2020 (M/B), respectively, before this Court and this Court, vide judgment and order dated 21.01.2021 and 17.02.2021, respectively, dismissed the aforesaid writ petitions.

(11) So far as the claim of the petitioner for giving the benefit of interim orders as has been granted by a Co-ordinate Bench of this Court vide orders dated 06.03.2020 and 31.07.2020 passed in writ petition No. 6369 of 2020 (M/B) and 12206 of 2020 (M/B), respectively, it has been argued by the learned AGA that the instant writ petition is being argued finally by the parties, therefore, aforesaid interim orders passed by a Co-ordinate Bench of this Court cannot be granted to the petitioner.

(12) We have examined the submissions advanced by the learned Counsel for the parties and gone through the record.

(13) Before proceeding further on merit of the case, we deem it appropriate to first adjudicate the submission of the learned counsel for petitioner that the petitioner is entitled to get the benefit of the interim orders dated 06.03.2020 and 31.07.2020 passed in writ petition No. 6369 of 2020 (M/B) and 12206 of 2020 (M/B), respectively.

(14) The interim order dated 06.03.2020 passed in Writ Petition No. 6369 of 2020 (M/B) reads as under :-

"Heard learned counsel for the petitioner, learned A.G.A. and perused the record.

This petition seeks issuance of a writ in the nature of certiorari for quashing the impugned First Information Report dated 01.01.2014 registered as Case Crime No.1 of 2014, under Sections - 409/120B IPC and Sections 13(1)(d) and 13(2) of Prevention of Corruption Act, at Police Station - Gomti Nagar, District - Lucknow.

After hearing learned counsel for the parties, who are present today and going through the records, prima facie, the submission made by learned counsel for the petitioner appears to be correct, as such, as an interim measure, we hereby provide that the prosecution in question may go on but till the next date of listing or till filling of the police report under Section 173 (2) Cr.P.C., whichever is earlier, the petitioner shall not be arrested in connection with the aforesaid first information report number. However, the petitioner will co-operate with the investigation.

Learned A.G.A. prays for and is granted four weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.

List thereafter."

(15) The interim order dated 31.07.2020 passed in Writ Petition No. 12206 of 2020 (M/B) reads as under :-

"Heard learned counsel for the petitioner, learned A.G.A. appearing for the opposite party nos.1, 3 to 6 and perused the record.

This petition seeks issuance of a writ in the nature of certiorari for quashing of the impugned F.I.R. dated 01.01.2014 registered by the Opposite Party No.6 as Case Crime No.1 of 2014, Under Sections 409, 120-B IPC and Section 13 (1) (d) and 13 (2) of Prevention of Corruption Act, Police Station Gomti Nagar, District Lucknow.

It is submitted by the learned counsel for the petitioner that in identical circumstances the arrest of the co-accused Ashok Singh has been stayed by this Court vide order dated 06.03.2020 passed by this Court. The said order is being quoted hereinbelow:-

"Heard learned counsel for the petitioner, learned A.G.A. and perused the record.

Learned A.G.A. prays for and is granted four weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.

List thereafter."

Accordingly, the learned counsel for the petitioner submits that the same benefit may be given to the present petitioner also, as such, his arrest may be stayed.

Shri S.P. Singh, learned A.G.A. has opposed the matter on merit but he has not disputed the fact that as an interim protection, the arrest of the co-accused Ashok Singh has already been stayed by this Court.

After hearing learned counsel for the parties and going through the records, prima facie, the submission made by the learned counsel for the petitioner appears to be correct, as such, as an interim measure till the next date of listing or till the filing of the police report under Section 173 (2) Cr.P.C. whichever is earlier, petitioner (Panna Lal Yadav) shall not be arrested in connection with the aforesaid case crime number. However, the petitioner will co-operate with the investigation.

Learned A.G.A. prays for and is granted four weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks' thereafter.

List thereafter alongwith Writ Petition No.6369 (M/B) of 2020 (Ashok Singh Vs. State of U.P. Through Principal Secretary)."

(16) It transpires from the aforesaid interim order dated 06.03.2020 that the same is not speaking order, whereas interim order dated 31.07.2020 has been passed by giving parity of the aforesaid interim order dated 06.03.2020 and that too also not a speaking order.

(17) It is settled law that the interim orders/directions are issued on the basis of prima facie finding and makes temporary arrangements to preserve status quo to ensure that the matter does not either become infructuous or a fait accompli before final hearing and this view has again been reiterated by the Hon'ble Supreme Court in the case of State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha : (2009) 5 SCC 694). The Hon'ble Supreme Court again held that interim directions based on tentative reasons, restricted to peculiar facts of the case involving extra- ordinary situation have no value of precedent and the interim order which does not finally and conclusively decide an issue cannot be a precedent. Apart from above, it is also settled law that the interim order and direction issued in a case binds the parties to that case only and that too, till the final decision of the matter by final judgment.

(18) Here, at this stage, we are finally hearing the matter with the consent of the learned Counsel for the parties, therefore, interim orders dated 06.03.2020 and 31.07.2020 passed in writ petition No. 6369 of 2020 (M/B) and 12206 of 2020 (M/B), respectively, by a Co-ordinate Bench of this Court are not binding on us. Therefore, the plea of the petitioner in this regard is not sustainable and is, accordingly, rejected. Now, we proceed to adjudicate the matter on merits.

(19) The legal position on the issue of quashing of FIR or criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. The Courts should not ordinarily interfere with the investigations of cognizable offences. However, where the allegations made in the FIR or the complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the FIR or the charge-sheet may be quashed in exercise of powers under Article 226 or inherent powers under Section 482 of the Cr.P.C.

(20) Recently, in Neeharika Infrastructure Private Limited vs. State of Maharashtra (Criminal Appeal No. 330 of 2021, decided on 13.04.2021), a three-judge Bench of the Hon'ble Supreme Court considered the powers of the High Court while adjudicating a petition for quashing of the FIR under Article 226 of the Constitution of India and under Section 482 of the Criminal Procedure Code, 1973. In Neeharika Infrastructure Private Limited (supra), the appellants challenged an interim order issued by the Bombay High Court, in a quashing petition filed under Section 482 Cr.P.C. and Article 226 of the Constitution. The Bombay High Court issued an interim order directing that "no coercive measures shall be adopted against the petitioners in respect of the said FIR". While examining the correctness of the said interim order, Hon'ble the Supreme Court in para-23 has held as under :

"23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.

(21) Keeping in mind the aforesaid dictum of the Hon'ble Supreme Court, we find that in the instant case, it transpires from the impugned F.I.R. that it has been lodged on the basis of inquiry report of Lok Ayukta in regard to corruption and irregularities committed during the period 2007 to 2011 for supply of sandstone. It also transpires that there is embezzlement of Government exchequer of Rs.14,10,50,63,200/- and in the said loss of Government exchequer, besides former ministers, officer(s) of the State, Firms related to construction work and persons are responsible as with their connivance, the said amount has been embezzled.

(22) Admittedly, the petitioner is the holder of mining lease in District Mirzapur, therefore, prima facie, it cannot be said that the petitioner is not involved in the present case as it is a categorical averment in the impugned F.I.R. that in the embezzlement of Government exchequer, apart from former ministers, Government officials and officer of Nirman Agency, the firm related to construction work and persons are also responsible as the said embezzlement have been made with their connivance.

(23) It is well settled that this Court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases.

(24) Keeping in view the aforesaid law and considering the submissions raised by learned counsel for the petitioner, we are of the considered view that the submissions advanced by the learned Counsel for the petitioner call for determination on questions of fact which may be adequately discerned either through proper investigation or which may be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial Court in case a charge sheet is submitted in this case. The perusal of the record makes out, prima facie, offences at this stage and there appears to be sufficient ground for investigation in the case.

(25) In view of the aforesaid, considering the allegations made in the FIR and material brought on record, it cannot be said that no prima facie case is made out against the petitioner, rather there appears to be sufficient ground for investigation in the matter. Accordingly, we do not find any justification to quash the impugned F.I.R.

(26) The petition lacks substance and is, accordingly, dismissed.

Order Date :- 30.6.2021

Ajit/-