Uttarakhand High Court

Sunil Kumar Gupta vs State Of Uttarakhand And Others on 19 November, 2024

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

     IN THE HIGH COURT OF UTTARAKHAND AT
                    NAINITAL

         Writ Petition (Criminal) No. 1252 of 2024
Sunil Kumar Gupta                                       ...Petitioner

                                 Vs.
State of Uttarakhand and Others                    ...Respondents

Presence:
1.     Mr. Arvind Vashistha, learned senior counsel assisted by Mr.
Hemant Mahra, learned counsel for the petitioner.
2.     Mr. V.S. Pal, learned A.G.A. for the State/respondent nos. 1 and
2.
3.     Mr. Rajendra Dobhal and Mr. D.S. Patni, learned senior counsel
assisted by Mr. Lalit Sharma and Ms. Mamta Bisht, learned counsel for
respondent no. 3.


Hon'ble Rakesh Thapliyal, J. (Oral)

By the instant writ petition the petitioner is challenging the First Information Report dated 07.11.2024 bearing FIR No. 0221 of 2024 lodged by Ajay Agarwal, Director (Project), Uttarakhand Power Corporation Limited, wherein, the petitioner has been implicated for the offences punishable under Sections 308(2), 308(5), 336(3), 338 and 340(2) of BNS, 2023, P.S. Basant Vihar, District Dehradun.

2. It is submitted by the learned senior counsel Mr. Arvind Vashistha that the petitioner by profession is an Advocate as well as the Journalist. The petitioner is the editor of e-portal www.polkhol.in. and also runs a weekly newspaper "Teesri Ankh Ka Tahalka" since 2016 and constantly publishing the large scale of corruption in Uttarakhand Power Corporation Limited (UPCL), and Uttarakhand Jal Vidyut-Nigam (UJVNL) and Power Transmission Corporation Limited (PITCUL) regarding scams in tender process, power purchase as well as work orders given to close associates of one Mr. Anil Kumar, the present Managing

Director of UPCL and the complainant 'herein' Ajay Kumar Agarwal, the Project Director of UPCL, who are constantly pressurizing the petitioner not to publish the news report.

3. Mr. Arvind Vashistha, learned senior counsel further submits that after collecting the concrete documentary evidence, which discloses the corruption at large in the UPCL and also regarding illegal acquisition of immovable properties by the respondent no. 3- Ajay Aggarwal, the Project Director of UPCL with Mr. Anil Kumar, the Managing Director of UPCL and their close relatives, wife, son, daughters, son-in-law, a press release was published on 28.05.2024 (Annexure-4) and thereafter published in news portal www.polkhol on 30.05.2024 (Annexure-

5) as well as in news paper "Teesri Ankh ka Tehlka" alongwith the list of benami properties purchased by complainant and Mr. Anil Kumar.

3. He further argued that since 2016 petitioner is publishing different news articles regarding the corruption in large scale in news portal and newspaper, but no action has been taken by any agency of the Government.

4. He further submits that after publishing in the e- portal and the press release a First Information Report was lodged on 31.05.2024 bearing FIR No. 0121 of 2024 at P.S. Basant Vihar, District Dehradun, wherein, the petitioner has been implicated for the offences punishable under Sections 386 and 506 of IPC.

5. He submits that in respect of this FIR he was enlarged on bail; thereafter, the petitioner challenged the said First Information Report in Criminal Writ Petition No. 1074 of 2024 by impleading the CBI as party respondent, wherein, on

18.10.2024 notices were issued to all the respondents including the CBI.

6. Learned senior counsel for the petitioner Mr. Arvind Vashistha further submits that being prejudiced with the publication of different news articles with regard to corruption in large scale at UPCL, which was published also in different social platforms another FIR, which is impugned in this petition, has been lodged by the respondent no. 3 on 07.11.2024 at P.S. Basant Vihar registered as FIR No. 0112 of 2024, wherein, the petitioner has been implicated for the offences punishable under Sections 308(2), 308(5), 336(3), 338 and 340(2) of BNS, 2023. He submits that the implication of the petitioner in the impugned FIR is a glaring example of malicious prosecution, which is evident from the fact that in the impugned FIR the time of the incident is shown as 8:00 to 8:50 PM in the evening; though during this period the petitioner was at his home, which can be verified from the CCTV footages, copy of which is also enclosed as Annexure-

16.

7. Apart from this, he further submits that even otherwise from the contents of the impugned FIR no cognizable offence is made out against the petitioner. He submits that in view of the category of the cases as categorized by the Hon'ble Apex Court in the case of State of Haryana and others vs. Bhajan Lal and others 1992 Supp (1) SCC 335, which still holds the good law, the investigation pursuant to the impugned FIR cannot proceed since the case of the petitioner falls in the category nos. 1 and 7 of the cases as categorized by the Hon'ble Apex Court in the judgment, which are as follows:

1. Where the allegations made in the first information report or the complaint, even if they are 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.

7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

8. In paragraph-20 of the petition the petitioner has disclosed the details of benami properties in a chart format acquired by the respondent no. 3 (Project Director of UPCL) and Mr. Anil Kumar, (Managing Director of UPCL (Uttarakhand Power Corporation Limited), which is being reproduced herein as under:

S.No. Date Type of Name of purchaser Name of seller Relation with deed Respondent no.

3 & Anil Kumar

1. 09.11. Free hold In favour of Brg. Mussoorie Sri Anil Kumar, 2011 deed Rajendra Mohan Dehradun is the power of Sharma S/o Sri O.P. Development attorney holder Sharma Authority of the second party

2. 02.12. Lease deed In favour of M/s Amit Singh Mrs. Swapnil 2021 Laurel Enterprises Pawar, Singh is proprietor Mrs. Bijendra daughter of Anil Swapnil Singh W/o Singh Bisht Kumar. It is Sri Sandeep Singh Aradhna relevant to note here that Sri Yashraj S/o Anil Kumar is the witness

3. 30.01. Sale deed In favour of Smt. Ajay Anand Smt. Mala Singh 2014 Neera Sharma, is the wife of Arun Rathour, Anil Kumar Virendra Krishan Arora and (Smt. Mala Singh wife of Sri Anil Kumar)

4. 25.11. Sale deed In favour of Indira Mr. Ajay Seller no. 1 is 2010 Memorial Institute Kumar respondent no. 3 of Engineering and Agarwal herein. Seller no.

Technology (respondent 2 is father in law Societies through its no. 3), of Anil Kumar, authorized person Rajendra Seller no. 3 wife Mr. Pawan Kumar Singh, Miss. of Anil Kumar.

S/o late Mr. Hukum Mala Singh
Singh

5. 04.10. Sale deed In favour of Sri Paramjeet Smt. Swapnil
2017 Sandeep Kumar Singh Vasdev Singh is
Singh, Smt. daughter of Anil
Swapnil Singh wife Kumar
of the Sandeep
Singh daughter of
Sri Anil Kumar

6. 25.01. Sale deed In favour of Ajay Deen Purchaser no. 1
2006 Kumar Agarwal, Mohamad, respondent no. 3
respondent no. 3, Bashier and himself.
Rajendra Singh and others Purchaser no. 2
Mala Singh is father in law
of Anil Kumar.
Purchaser no. 3
wife of Sri Anil
Kumar.

7. 29.07. Sale deed In favour of Km. Mohd. Km. Swapnil
2005 Swapnil Singh Hussain and Singh is
minor through her Rafat Hussain daughter of the
mother Smt. Mala respondent no. 3
Singh wife Sri Anil and the
Kumar addressed has
been shown as
village
Narayandeeh,
P.O. Sohnhansa,
District Jonpur,
U.P.

8. 19.04. Sale deed In favour of Ajay Ranjana Respondent no.
2011 Kumar Agarwal Bhatia 3 has not
(respondent no. 3) disclosed in
official records.

9. 03.08. Sale deed In favour of Ajay Saroj Bisht Respondent no.
2007 Kumar Agarwal 3 has not
(respondent no. 3) disclosed in
official records
and further Anil
Kumar S/o Sri
Rajpati R/o Urja
Bhawan
Dehradun is one
of the witness in
the sale deed.

10. 27.01. Sale deed In favour of Yashraj Brg. Rajendra Yashraj is son of
2012 S/o Anil Kumar Mohan Anil Kumar in
Sharma the said sale
through power deed entire
of attorney consideration
holder Sri Anil has been shown
Kumar to have been
received through
cash Rs.
9,40,000/-

9. I have gone through Annexure-3 page 49 to 128 of the instant writ petition, which infact is an article published by the petitioner in the newspaper, which is supported with scanned copies of different sale deeds and other documents with regard to the properties of worth of Rs. 150-200 crore, which prima-facie appear to be shocking and surprising which requires deep scrutiny.

10. Mr. Arvind Vashistha, learned senior advocate further argued that since the petitioner is repeatedly publishing different news articles in his news portal, (empanelled by the Government of Uttarakhand) regarding large scale corruption, which was also published on 04.11.2024 in electronic news portal "Polkhol" and these are the only major factors for implicating the petitioner and this is nothing but only on the behest of those who are holding the key posts in the Uttarakhand Power Corporation Limited.

11. Per contra, learned senior counsel Mr. Rajendra Dobhal and Mr. D.S. Patni, who appears for respondent no. 3, submits that the petitioner is an Advocate and therefore cannot act as Journalist and with ulterior purposes and motive with an intention to blackmail and extortion of money repeatedly is publishing the false news articles. If it is so then the conduct of the petitioner is also required to be scrutinized.

12. Be that as it may, the statement as given by the petitioner supported with several documents including different sale deeds and particularly the details of the assets of respondent no. 3 and the present M.D. of the Uttarakhand Power Corporation Limited as mentioned in paragraph-20 requires deep scrutiny, since to some extent, prima-facie element of corruption at large scale is apparent particularly from Annexure-3 page 49 to 128 of writ petition.

13. No doubt, Corruption in India is an issue, which affects economy of Central, State and Local Government Agencies. Corruption is blamed for stunting economy of India. In different news portals media has widely published the issue of corruption in India. In July, 2021 India's "Central Board of Direct Taxes" (CBDT) declared assets of Rs. 20,078 crore

identified by them in India and abroad following the investigation till June, 2021.

Now a days corruption is growing fast and therefore Judiciary has an important role to play in curbing corruption and the Investigation Agencies need to complete investigation quickly in corruption cases.

Therefore, now the time has come that some preventive measure has to be adopted by taking strict action.

14. To examine whether there is an element of corruption or not particularly when there are allegations against those who are holding the key-posts in UPCL certainly requires deep scrutiny, however, before examining the issue it is necessary to give proper opportunity to the respondents to file their respective affidavits.

15. Mr. V.S. Pal, learned A.G.A., who appears for respondent nos. 1 and 2 is directed to file counter affidavit disclosing the reasons what action has been taken by the Government with regard to the different news articles, which are published in several news portals supported with documents with regard to the large scale of corruption.

16. Mr. Rajendra Dobhal and Mr. D.S. Patni, learned senior counsels, who appears for respondent no. 3, are also granted a week's time to file an affidavit disclosing the details of assets (movable and immovable) of respondent no. 3 and his family members.

18. Put up on 27.11.2024 as a first case by treating the matter as part heard.

19. In the meantime, the investigation pursuant to the impugned FIR may go on and the petitioner shall cooperate with

the investigation; however, till the next date of listing no coercive action shall be taken against the petitioner.

(Rakesh Thapliyal, J.) 19.11.2024 PR