Court No. - 51
Case :- APPLICATION U/S 482 No. - 13896 of 2021
Applicant :- Arvind Singh (Retd. Ias)
Opposite Party :- State Of U. P.
Counsel for Applicant :- Arun K. Singh Deshwal
Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
Heard Shri Arvind Verma, learned Senior Counsel assisted by Shri A.K. Singh Deshwal, learned counsel for the applicant and the learned AGA for the State and perused the record.
This application under Section 482 CrPC has been filed with the prayer to quash the charge-sheet as well as the consequential criminal proceedings in Case Crime No. 213 of 2006, under Sections 34/409, 420, 467, 468, 471, 120-B IPC and 13(1) D, 13(2) Prevention of Corruption Act, Police Station Manjhanpur, District Kaushambi pending before the Special Judge (Anti-Corruption) Court No.3, Varanasi and further to stay further proceedings of the aforesaid case crime number.
It is submitted by the learned Senior Counsel appearing for the applicant that the FIR has been lodged on false grounds while the applicant has not committed any offence. The police has also submitted charge sheet on the basis of insufficient evidence against the applicant. Essential ingredients to constitute the alleged offence are lacking. The present prosecution has been instituted with a malafide intention. It is further submitted by the learned Senior Counsel appearing for the applicant that the applicant was posted as C.D.O. at District Kaushambi at the relevant time. He has only approved the project proposed by the P.D.O.. Entire purchase was made in accordance with the Government Orders issued from time to time. Referring to contents of F.I.R. and the relevant Government Orders it is further submitted that purchase was to be made from Uttar Pradesh Upbhokta Sahkari Sangh. No irregularity was committed on the part of the applicant. All the Rules applicable for purchase of articles and the Government Orders issued from time to time in this case have been followed. The Competent Authority has also expressed his opinion that only departmental proceeding was required in the matter. F.I.R. in the matter was lodged in the year 2006, charge sheet was submitted after a gap of about 15 years, cognizance was taken on 4.1.2021. It is further submitted that no prima facie case to proceed with against the applicant is made out. It is also submitted that prosecution has been launched on the basis of selective district.
Supply received by the department was as per the approved standard and there was no option to purchase from any other distributor. Thus, supply was obtained as per the Government Orders, Circulars and Rules. If entire prosecution case is taken into consideration then also there was no active participation on the part of the applicant. He has only given approval of the project proposed by the P.D.O.. It is next contended that criminal prosecution cannot continue, as it is at belated stage after retirement of the applicant. Civil Service Regulations creates bar to launch prosecution against the applicant. At this juncture, learned Senior Counsel referred to Paragraph No.351- A of the said Regulation and further submitted that judicial proceeding can be started following the procedure prescribed in this Regulation itself. Present prosecution has been initiated against the applicant contravening the aforesaid Regulation. Thus, on this ground also prosecution cannot be continued. Learned Senior Counsel specifically referred to Page Nos. 98, 134, 148 of the affidavit filed in support of the application and further submitted that cognizance taken in the matter is illegal and without application of judicial mind. Though applicant had approached this Court for quashing the F.I.R. by way of Criminal Misc. Writ Petition in the year 2006 and arrest of the applicant was stayed in the said Writ Petition till submission of charge sheet yet the criminal prosecution is bad in the eyes of law. Referring to entire document it is also submitted that in this matter only departmental enquiry may be continued. This fact has not been considered by the concerned Magistrate while taking cognizance in the matter. Essential ingredients to constitute the offence under Section 409 IPC are also not available. Applicant had approved the proposal taking into account the direction issued by the State Government from time to time. Sanction accorded for prosecution is also illegal as Commissioner, Gram Vikas has specifically recommended that no case of sanction for prosecution was made out against the applicant. Learned Senior Counsel appearing for the applicant pointed out certain documents and statements in support of his contention. In support of his submissions, learned Senior Counsel appearing for the applicant placed reliance on the following case laws:
1. Ramanand Chaudhary vs. State of Bihar and others, AIR 1994 SC 948
2. Mahendra Lal Das vs. State of Bihar and others, AIR 2001 SC 2989
3. State of A.P. vs. P.V. Pavithran, AIR 1990 SC 1266 On the other hand, learned AGA appearing for the State submitted that applicant had earlier approached this Court by way of filing Criminal Misc. Writ Petition. Charge-sheet has been submitted in the matter and cognizance has also been taken. Sanction accorded for prosecution is also in accordance with law. It is further submitted that articles were purchased without recommendation of the purchase committee and even no purchase committee was constituted before placing the order. Though applicant was only approving authority yet it was incumbent upon him to scrutinize the proposal placed before him minutely. Articles supplied were of sub-standard. Referring to contents of F.I.R., evidence collected during investigation and the relevant Government Orders annexed with the application it is further submitted that cognizance taken in the matter is in accordance with law. A prima facie case is made out against the applicant. All the pleas taken by the learned Senior Counsel require leading of evidence which can appropriately be done before the Court below at appropriate stage. It is further submitted that there is no denial by the applicant about his posting as C.D.O. of district Kaushambi at relevant time and also about the approval of the proposal. Allegation against the applicant is that the articles supplied were not as per the approved standard and despite this fact payment was also made to the supplier. It is also submitted that facts of the cases relied upon by the learned Senior Counsel are different with the facts of the present matter. Hence, applicant cannot get help with the law laid down in the said cases.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws relied upon by the learned Senior Counsel appearing for the applicant carefully.
In this matter, as is evident from the record, it is admitted case between the parties that applicant was posted as C.D.O. at the relevant time at District Kaushambi. It is also not in dispute that proposal placed before him by the P.D.O. was approved by him. Applicant had approached this Court through Criminal Misc. Writ Petition for quashing the F.I.R., which was disposed of with the observation that applicant shall not be arrested till submission of charge sheet provided he cooperates with the Investigating Officer. Record reveals that cognizance has been taken in the matter. If the facts and evidence collected by the Investigating Officer are compared with the submissions of the learned counsel for the parties in consonance with the settled principles of law, in the opinion of the Court, cognizance order, at this stage, cannot be said to be bad in the eyes of law. The Apex Court in State of A.P. case (supra) has held that no general and wide propositions of law can be formulated that whenever there was inordinate delay in investigation, such delay, ipso facto, would provide ground for quashing the F.I.R. or the proceedings arising therefrom. In this matter, it is true that the applicant has retired but on the basis of aforesaid proposition of law, cognizance taken in the matter cannot be quashed/ set aside. In the present matter, F.I.R. was lodged while the applicant was in service. Investigation had also started. Hence, at this stage, in this proceeding cognizance order can also not be said to be bad in the eyes of law. If one officer of the Government expressed opinion that there was no need for prosecution and only departmental enquiry was needed, same will also not be sufficient at this stage to hold that sanction granted in the matter is also bad in the eyes of law. Keeping in view the nature of allegations at this stage it can also not be said that offence under Section 409 IPC is not made out against the applicant. Since applicant was a public servant at the time of committing the present offence, all the ingredients of offence under Sections 13(1) (D) read with Section 13(2) Prevention of Corruption Act are also attracted in the matter against him.
In Ramanand Chaudhary case (supra) prosecution was quashed by the Apex Court on the ground that there was consistent opinion of Public Prosecutor that no criminal case was made out against the applicant. In the said matter, sanction was accorded on the basis of direction of higher authority only. Thus, ratio laid down in the said case cannot be applied to the present case. In the present matter sanction for prosecution was accorded on 8.7.2019 and cognizance has been taken on 4.1.2021. Thus, law laid down in Mahendra Lal Das case (supra) can also not be applied to this case for quashing the entire proceedings of the present case.
As far as the provisions relied upon by the learned Senior Counsel appearing for the applicant i.e. Article 351-A of Civil Service Regulations are concerned, same is as under:
"351–A The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave mis-conduct, or to have caused. Pecuniary loss to government by misconduct or Negligence, during his service, including service rendered on re-employment after retirement;
Provided that—
(a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment—
(i) shall not be instituted save with the sanction of the Governor,
(ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings, and
(iii) shall be conducted by such authority and in such place or places as the Governor may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made.
(b) judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a), and
(c) the Public Service Commission, U.P., shall be consulted before final orders are passed.
Explanation—For the purposes of this article—
(a) departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date; and
(b) judicial proceedings shall be deemed to have been instituted :
(i) in the case of criminal proceedings, on the date on which a complaint is made, or a charge-sheet is submitted, to a criminal court; and Digitally signed by OM PRAKASH Date: 2021.09.28 15:18:26 IST Reason: Document Owner Location: High Court of Judicature at Allahabad
(ii) in the case of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made, to a civil court."
Explanation to the above-quoted provisions, says that judicial proceedings shall be deemed to have been instituted on the date on which complaint was made. In this matter, F.I.R. was lodged against the applicant while he was in service. Hence, condition, as required in Article 351-A, is fulfilled.
In view of the above discussions and keeping in view the law laid down by Hon'ble Supreme Court in the cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283, the Court is of the view that from the material available on record at this stage a prima facie case is made out against the applicant. There is no substance in the submissions made by the learned Senior Counsel appearing for the applicant. The application being devoid of merits is liable to be dismissed and the same is accordingly dismissed.
Order Date :- 24.9.2021 safi