Girija Shankar Dixit vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 17810 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:46959-DB
 

 
Court No. - 10
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 5505 of 2023
 
Petitioner :- Girija Shankar Dixit
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Deptt. Govt. Of U.P. Civil Sectt. Lko. And Others
 
Counsel for Petitioner :- Vidhu Bhushan Kalia,Vaibhav Kalia
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

Hon'ble Narendra Kumar Johari,J.

1. Heard Shri Vaibhav Kalia, learned counsel for the petitioner, Shri S.P. Singh, learned A.G.A. for the State/respondents and perused the material placed on record.

2. The present writ petition has been filed by the petitioner with the following main prayers :-

"(i) issue a writ, order or direction in the nature of certiorari, quashing the impugned FIR No.0015 of 2021, U/s 409, 120-B IPC, Police Station-SIT, District -State SIT Lucknow, as contained in Annexure No.1 to the writ petition.

(ii) Alternatively, issue an appropriate writ, order or direction in the nature to club all FIRs including the impugned FIR detailed in para 3, and any other FIR registered by the Police in connection with the same or connected offence alleged to have been committed in the course of same transaction.

(iii) issue a writ, order or direction in the nature of mandamus, commanding the opp- parties, particularly the opp-party no.3, not to arrest the Petitioner in the present case i.e. impugned FIR No.0015 of 2021, U/s 409, 120-B IPC, Police Station-SIT, District -State SIT Lucknow, as contained in Annexure No.1 to the writ petition."

3. It is the case of the petitioner that he is a retired Engineer from the U.P. Rajkiya Nirman Nigam Ltd. and the impugned F.I.R. is not maintainable as this is the second F.I.R. for the same cause of action. As a matter of fact two FIRs in Case Crime No.0453/2015 and Case Crime No.1367/2019, were lodged by the employees of the U.P. Rajkiya Nirman Nigam Ltd. in connection with the same offences alleged to have been committed in the course of the same transaction. The Investigation in both the FIRs is still pending. Both the F.I.R.s were connected as they related to the same incident and had been transferred from Police Station Cantt. Varanasi to Police Station SIT, U.P., Lucknow and were renumbered as Case Crime No. 13 of 2019 and Case Crime No.14 of 2019, at Police Station SIT, U.P., Lucknow. True copies of such FIRs initially lodged by U.P. Rajkiya Nirman Nigam Ltd. against the petitioner and others have been filed as Annexure No.1 to the writ petition and true copy of the F.I.R. that was lodged at Police Station SIT, U.P., Lucknow as Case Crime No.13 of 2019 and Case Crime No.14 of 2019 have been filed as Annexure No.2 and 3 to the writ petition.

4. It has been submitted that the State Government through SIT has lodged the FIRs with a delay of six years. Not only this, the State Government has got as many as 10 FIRs lodged against the petitioner with regard to the same alleged offence/occurrence. The particulars of all the FIRs filed against the petitioner with regard to the same occurrence have been given in the form of Table in paragraph 3 of the writ petition.

5. It has been submitted by the learned counsel for the petitioner that the impugned F.I.R. is an abuse of the process of law by the State Government. It is violative of a law propounded by the Supreme Court in the case of T.T. Antony Vs. Reveda Chandra Shekhar & others, 2001 (6) SCC 181 and Upkar Singh Vs. Ved Prakash & others, 2004 (13) SCC 292. The counsel for the petitioner has referred to paragraphs 16 & 17 of the judgment rendered in the case of Upkar Singh Vs. Ved Prakash & others and also referred to paragraph 27 of the judgment rendered in the case of T.T. Antony Vs. Reveda Chandra Shekhar &others. It has been argued by learned counsel for the petitioner that the Special Secretary Home (Police Anubhag-III) by an order dated 09.05.2013, directed for an inquiry into the 137 construction works carried out in different districts, viz. Bhadohi, Varanasi, Sonbhadra, Chandauli, Ghazipur, Ballia, Mirzapur, Azamgarh and Jaunpur between the year 2004-2005 up to 2012-13 by the Varanasi and Allahabad Division of U.P. Rajkiya Nirman Nigam. The SIT carried out the Investigation and forwarded the report to the Additional Chief Secretary (Home), U.P., Lucknow.

6. It has been argued that on the basis of aforesaid inquiry report, the SIT has been directed for registration of the impugned FIR. It refers to construction of Government Polytechnic in Mirzapur, Bhadohi, Chakia, Varanasi and Sonbhadra and a Hostel in a Polytechnic in Sant Ravidas Nagar (Bhadohi) carried out by the Varanasi Unit- 2 of U.P. Rajkiya Nirman Nigam. It has been alleged in the inquiry report that the aforesaid 06 projects were found incomplete and sub standard and the amount spent was much more than the budgetary allocation. The misappropriation of huge amount of money has been alleged on the part of the petitioner who was the Project Manager/Project Engineer along with the accountant.

7. It has been submitted by learned counsel for the petitioner that since the SIT has lodged the subsequent 10 FIRs at the behest of the Government on the basis of an inquiry carried out by them of construction works in various districts of Varanasi and Allahabad Division for which FIR had already been lodged by the U.P. Rajkiya Nirman Nigam and its employees in the year 2015 and 2019, therefore, the impugned FIR being the second FIR should be interfered with by this Court in its writ jurisdiction under Article 226 of the Constitution of India.

8. Learned A.G.A. has produced before this Court copy of the instructions dated 14th July, 2023 sent by the Police Headquarters (State SIT, U.P.) by the Investigating Officer, which contains parawise narrative of the writ petition also. From the said instruction it is evident that there were 06 construction works carried out during the time when the petitioner was the Project Manager and in all such construction works several crores of money from the public exchequer was frittered away on incomplete and substandard works. The State Government by its' order dated 09.05.2019 had initiated inquiry with respect to 137 construction works carried out in between 2004-05 and 2012-13 in Varanasi and Allahabad Division by the U.P. Rajkiya Nirman Nigam . The investigation was completed and report was submitted to the Additional Chief Secretary, Department of Home, Government of U.P. and orders were issued thereafter on 22.02.2021 for institution of separate cases in SIT, Lucknow in Case Crime No.6 of 2021-18 of 2021 under Sections 409 and 120-B IPC.

9. The judgments that have been relied upon by the petitioner are not applicable to the facts of this case as the SIT is now carrying out investigation which was earlier carried out by the police officials at Police Station - Cantt., Varanasi. There was a huge amount of public money which was embezzled/misappropriated in collusion with contractors and other employees for which the petitioner is being proceeded against. He was the Project Manager of 06 such construction works, as aforesaid and, hence, made an accused in the FIR.

10. At this stage, learned counsel for the petitioner states that Section 409 IPC is not made out against the petitioner because the only allegation against the petitioner made in the FIR is of spending more than the budgetary allocation for which there is no hope of adjustment in the future.

11. It has been submitted by learned A.G.A. that in the case of the petitioner every project that was carried out, i.e. six projects in all, have been investigated and, therefore, separate F.I.R.s relating to separate incident of culpability have been lodged by the SIT after due inquiry.

12. This Court having heard the learned counsel for the petitioner, has gone through the judgment rendered by the Hon'ble Supreme Court in the case of T.T. Antony Vs. Reveda Chandra Shekhar & others. In the case of T.T. Antony (Supra) one Minister came to Kannur District in Kerala to inaugurate a branch of a Co-operative Bank. Violent demonstration was staged by the youth wing of the rival political party, i.e. the C.P.I (M). The Police had to open fire to protect the Minister and the public and private properties at two places in the city of Kannur. As a result of firing, 05 persons died and 06 persons were injured. Because of the lathi charge resorted to by the police, several more persons suffered injuries. In respect to the occurrence near Town Hall, F.I.R. was lodged under various sections of IPC in Case Crime No. 353 of 1994 and in respect of the incident that occurred near police station Kuthuparamba, case crime No.354/1994 was registered. A Commission of Inquiry was appointed by the State Government. During the pendency of the inquiry by the Commission under the Commission of Inquiries Act, 1952, as a result of Assembly Election in the State of Kerala, the ruling party lost and the rival political party CPI (M) formed the government with its allies. The Inquiry Commission submitted its report to the Government holding the former Minister, the Deputy Superintendent of Police and the Executive Magistrate responsible for police firing. The report was accepted by the State Government. The Government directed legal action to be taken against those responsible on the basis of the findings of the Commission. The Director General of Police thereafter issued necessary orders and F.I.R. was directed to be registered against the Minister concerned, the Superintendent of Police and the Executive Magistrate. It was the subsequent F.I.R. which was challenged by the Minister which led to the observations made by the Hon'ble Supreme Court in the aforesaid case of T.T. Antony (supra).

13. The counsel for the accused had argued that the registration of the fresh Information Report in respect of the very same incident as an F.I.R. under Section 154 Cr.P.C. is not valid action, therefore, all steps taken pursuant thereto including investigation are illegal and liable to be quashed. The Solicitor General, on the other hand, had argued that the second FIR or the investigation made thereunder cannot be stopped as nothing prevented the Investigating Agency from making further investigation on the basis of the first FIR and in view of the subsequent Information received and on the basis of further report. It was argued that the objection is technical in nature and makes no difference so far as the final report is concerned.

14. The Supreme Court considered the matter and dealt with the issue whether under the facts and circumstances of the case a fresh investigation by the police authorities in a fresh F.I.R for the same incident could be lodged. With regard to question whether the registration of a fresh case which is in the nature of a second F.I.R. under Section 154 Cr.P.C. was valid and could form the basis of a fresh investigation, the Supreme Court observed in paragraphs 18 and 19 as follows :-

"18. An information given under sub-section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (F.I.R.) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forwarding of a police report under Section 173 of Cr.P.C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 of Cr.P.C. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report - F.I.R. postulated by Section 154 of Cr.P.C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Cr.P.C. No such information/statement can properly be treated as an F.I.R. and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr.P.C. Take a case where an FIR mentions cognizable offence under Section 307 or 326 I.P.C. and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Section 302 I.P.C. need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H - the real offender-who can be arraigned in the report under Section 173 (2) or 173 (8) of Cr.P.C., as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused.

19. The scheme of the Cr.P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173 (2) of Cr.P.C. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 Cr.P.C."

(emphasis supplied)

15. It observed thereafter in paragraph 20 onward that only the earliest of the F.I.R. in regard to the cognizable offence satisfies the requirement of Section 154 Cr.P.C. Hence, there can be no second F.I.R. and consequently there can be no fresh investigation on receipt of the subsequent First Information Report in respect of the same cognizable offence, or the same occurrence or the same incident giving rise to one or more cognizable offence. The Police Officer has to investigate not only the cognizable offence pertaining to the F.I.R. but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided under Section 173 Cr.P.C. It further observed in subsequent paragraphs that the right of the police to investigate into a cognizable offence is a statutory right over which the court does not have any supervisory jurisdiction in the Cr.P.C. and the plenary power of the police to investigate a cognizable offence is only limited. If no cognizable offence is disclosed and still more if no offence of any kind is disclosed on a bare perusal of the F.I.R. It referred to the judgment rendered by the Hon'ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335 :1992 SCC (Cri) 246 and several other binding precedents with regard to the jurisdiction exercised by the Court under Article 226/227 of the Constitution of India or Section 482 Cr.P.C. and quoted paragraph 102 of the judgment rendered in the case of State of Haryana Vs. Bhajan Lal (Supra) to say that the court under Article 226 of the Constitution of India may interfere in the seven conditions as mentioned in paragraph 102 of the judgment in State of Haryana Vs. Bhajan Lal (Supra). The Supreme Court referred to sub section 8 of Section 173 of the Cr.P.C. also in paragraph 27 to say that the police can further investigate and collect further investigation and submit further report or reports to the Magistrate, if required by the Magistrate but with his permission only. The sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173 (2) Cr.P.C. It would clearly be beyond the purview of Section 154 and 156 CrPC, and a case of abuse of the statutory power of investigation in a given case. A case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173 (2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution.

16. The judgment rendered by the Hon'ble Supreme Court subsequently in the case of Upkar Singh (supra) more or less reiterates the principles as laid by the Hon'ble Supreme Court in the case of T.T.Antony (Supra). It refers in detail to the facts of the case being dealt with by and then to the observations made by the Supreme Court in T.T.Antony (Supra) in paragraphs 16 and 17.

17. Having perused both the judgments of the Supreme Court, this Court has also considered the contents of the impugned F.I.R. It is evident that 137 construction works were being carried out, out of which the petitioner was the Project Manager in 06. In these 06 construction works, several irregularities, material and financial, were found, initially by the U.P. Rajkiya Nirman Nigam and, therefore, U.P. Rajkiya Nirman Nigam lodged FIRs at Police Station Cantt., District Varanasi. Looking into the gravity of the matter and the huge public money involved, the State Government ordered inquiry to be conducted by the S.I.T. As per the procedure prescribed, the S.I.T. conducted the inquiry and submitted its report to the State Government, which has led the lodging of the impugned F.I.R. Since all the projects, i.e. 137 of them of which the petitioner was responsible for 06 are being investigated individually, it cannot be said that the same occurrence or the same incident has led to the second F.I.R. being lodged.

18. The Supreme Court's observation in T.T. Antony (Supra), in paragraph 27 are apposite which are being quoted herein below :-

"27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the Court. There cannot be any controversy that sub-section (8) of Section 173 Cr.P.C. empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narangs' case (supra) it was, however, observed that it would be appropriate to conduct further investigation with the permission of the Court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173 (2) Cr.P.C. It would clearly be beyond the purview of Section 154 and 156 Cr.P.C. nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is underway or final report under Section 173 (2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 Cr.P.C. or under Article 226/227 of the Constitution."

(emphasis supplied)

19. This court is clearly of the opinion that there is no good ground to show interference as prayed for in this writ petition.

20. Accordingly, the writ petition is dismissed.

Order Date :- 18.7.2023

ML/-