JUDGMENT Vinod Prasad, J.
1. Apprehensive hallucination of arrest and jail incarceration hankered by the petitioner from the respondent investigating Agency Central Bureau Of Investigation, (in short herein after referred to as C.B.I.), for the purposes of harassment and humiliation, the present petitioner, who is a senior IAS Officer presently posted as Secretary, Department of Fisheries, Government of Uttar Pradesh, Lucknow, has knocked the door of our extraordinary jurisdiction under Article 226 of The Constitution of India seeking relief that the FIR of crime number RC1(A)/2008/ACU IX/AC III under Sections 120B/420/167/477-A IPC and Section 13 (1)(d) and 13(2) of Prevention of Corruption Act 1988 and Section 65 of the IT Act 2000 Police station New Delhi CBI/ACU IX district Ghaziabad, generating the investigation by C.B.I. be quashed.
2. The ancillary prayer is for stay of arrest by issuance of a writ of mandamus commanding the respondent C.B.I. not to arrest the petitioner in connection with the aforesaid crime number pendente lite this petition.
3. Eschewing eschewable details, as the detailed facts are already mentioned in the decision of this Court rendered in Deepak Sharma v. State of U.P. (2005) 4 AWC 3806 compelling the petitioner to invoke our writ power are inked below.
4. New Okhla Industrial Development Authority (herein after referred to as NOIDA) floated New Okhla Industrial Development Authority Residential Plots Scheme 2004 - 1 in November 2004, which was an outcome of a NOIDA Board resolution dated 28.6.2004 in it's Board's meeting held on same day. The attending participants in the meeting besides others were District Chief Executive Officer, NOIDA, Special Secretary, U.P., Government Lucknow representing the Principal Secretary Industries Department U.P., Special Secretary Government of U.P. District Magistrate, Ghaziabad, Chief Town Planner Lucknow. Special invitees in the aforesaid meeting of NOIDA board were Managing Directors U.P.FC, C.E.C. Greater NOIDA, Managing Director of Pradeshik Industrial Corporation U.P. (PICUP) and others. As per brochure of the scheme opening and closing dates were 3.11.2004 and 7.12.2004 respectively. The plots to be allotted were bifurcated in two categories General and Reserved category with further bifurcation of later category into five other sub categories. No sooner the scheme was floated NOIDA authorities started receiving various representations and complaints from various people, organisations and different political leaders raising multifarious and multidimensional grievances. For an amicable settlement thereof a committee comprising of six officers was constituted. The constituted committee made it's recommendations which were endorsed by Deputy CEO and Additional CEO NOIDA on 21.12.2005. However, because of consumption of time, the closing date of the scheme was further extended up to 18.12.2004. This extension was to enable legal heirs falling under category 4 to apply for allotment of plots. Pleadings in the instant writ petition averred that the said scheme was published in various News papers including Times of India, Hindustan Times, Dainik Jagran, Amar Ujala etc.
5. Another significant feature which developed during formulation of the scheme was the representations made by various entrepreneur associations and Industrial associations for allotment of residential plots allotment facility to all the units to whom lands were allotted before 16.8.2004.Representations and deliberations thereon, however, resulted in a decision that the units which were functional between 15.6. 2001 and 15.8.2004 shall also be eligible for allotment of plots under reserved category -I as per the previous residential plot schemes. Some other meetings and decisions were taken but for our purposes and to shorten the controversy we only refer this much that the closing date for the said scheme 2004-1 was further extended upto 31.12.2004 so as to enable functional units also to apply under the category of the residential plot scheme.
6. For drawing of lots of the scheme NOIDA authorities collected necessary informations from the banks and then decided to hold a computerised draw of plots, resultantly, the authorities issued a letter dated 24.1.2004 to TATA consultancy Service(hereinafter referred to as TCS) inviting their proposal for conducting the desired computerised draw. TCS submitted its proposal to NOIDA authorities on 2.3.2005 but gave a report that there is a conflicting clause as it's employees were not eligible to participate in the draw of lots. While the deliberations with the TCS were ongoing U.P. Development System Corporation Limited (hereinafter referred to UPDESCO) jumped into the arena and gave a letter of intent on 17.3.2005 to work for NOIDA authorities in drawing the computerised draw of lots of the aforesaid scheme. It is important to note that Principal Secretary department of IT and Electronics U.P. has issued a letter in favour of UPDESCO and ultimately it transpires that the proposal of UPDESCO was accepted by the NOIDA authorities relating to draw of lots for the plots.
7. On 29.4.2005 the petitioner who was the Chairman cum Chief Executive Officer, NOIDA, sanctioned for conducting a mock drill and also main draw on 20.5.2005 and 23.5.2005 respectively under the supervision of an administrative committee and a technical committee for which news items were also published in the leading Newspapers on 19.5.2005. Mock draw of the scheme was conducted under the supervision of Technical committee but the software developed by UPDESCO was attacked by bugs and certain discrepancies in the data base system occurred in it and hence the mock draw drill failed and inevitably UPDESCO sought an extension of time for final draw of lots which was scheduled for 23.5.2005. The developments continued and ultimately the mock drill was again fixed for 1.7.2005 on which date it was conducted and the main draw of lots was held on 2.7.2005 and the list of successful candidates was made public through Internet. A copy of the list was also glued in the administrative block of NOIDA for intimation to the general public.
8. On 3.7. 2005, as is pleaded in the instant writ petition by the petitioner, that the petitioner received complaints from NOIDA Entrepreneurs Association praying for cancelling final draw of lots conducted on 2.7.2005 and to conduct a fresh draw of lots for the reason that computer had generated flaws in conducting draw of lots and had errors in it.
9. Taking into consideration the aforesaid complaints and the alleged Irregularities brought forth in the draw of lots the petitioner, on 3.7.2005, after making note on the file and after being satisfied that there were flaws in the fonts used, cancelled the draw on 4.7.2005 which was in consonance with the conclusions arrived at by the administrative committee constituted to look into the irregularities committed in conducting the draw of lots. Corresponding news items were also published in the various newspapers on 5.7.2005 and 6.7.2005. It is averred that the cancellation generated a feeling of distrust and hence petitioner unceremoniously was transferred on 10.7.2005 from the office of Chairman cum CEO, NOIDA and he handed over the charge of his office to his incumbent successor on 11.7.2005.
10. Aggrieved by the cancellation order passed by the petitioner, Deepak Sharma, one of the successful applicants in the draw of lots dated 2. 7. 2005, preferred Civil Misc. Writ Petition 48287 of 2005 in this Court with the relief that the cancellation order dated 4.7.2005 made by the petitioner be set aside and a mandamus be issued to the respondents therein to execute final draw of lots dated 2.7.2005 and execute a lease in his favour.
11. Another Civil Misc. Writ Petition was filed by Manav Sewa Samiti being Civil Misc. Writ Petition No. 50418 of 2005 with the relief that the NOIDA authorities be prohibited from executing final draw of lots and an investigation be ordered to be conducted by a suitable agency to determine the liability of officers and personals who had indulged into mal practice and fraud and also for holding a fresh draw of lots.
12. In both the above writ petitions a division bench of coordinate jurisdiction, finding that the whole exercise conducted in the draw of lots was illegal, tainted with malafides, was a fraud and an outcome of manipulations of high magnitude and for bringing out guilty persons responsible for the said fraud and manipulations in the draw of lots and for restoring confidence of the public in such a situation, by it's order dated 4.10 2005, passed in the above writ petitions, Deepak Sharma's case ( Supra), vide paragraph No. 133 of the aforesaid judgement ordered as follows:
: FOR INVESTIGATION BY CBI (1) The CBI shall conduct an investigation to find out the officials employees of NOIDA UPDESCO and the State Government responsible for manipulation in the draw of lots held by NOIDA on 2nd July 2005, for its Residential plot Scheme 2004(1) and the names of such persons/beneficiaries at whose behest and direction the manipulation was done. We request the Director, CBI to get the investigation carried out under the supervision of a responsible Senior Officer. The investigation must be initiated at the earliest as otherwise vital evidence, oral and documentary would run the risk of being obliterated. The report may be submitted to this Court within three months.
(2) The CBI shall also conduct an investigation to ascertain whether the NOIDa officials had produced before the Court the entire records relating to the aforesaid Scheme pursuant to the order dated 11th July 2005 and if not, then the details of such records shall be submitted to this Court. This report may be submitted within six weeks.
(3) The entire records produced before this Court by the learned Counsel for NOIDA and the learned Counsel for TCS, shall be kept in a sealed cover with the Registrar General of this Court to be handed over to the CBI.
(4) Sri H.S. Hajela learned Counsel for CBI has undertaken to communicate the orders passed by us today to CBI for necessary action.
The above order dated 4.10.2005 passed by this Court was challenged in the Apex court by filing three Special Leave To Appeals (SLPs). The SLP of NOIDA was numbered as SLP(civil ) No. 126 12 of 2005. The Apex court on 1.11.2005 in all these SLPs granted leave and stayed the operation of the impugned order passed by this Court dated 4.10.2005 and resultantly three Civil Appeals were registered in the Supreme Court being Civil Appeal Numbers 6794-95 of 2005, Civil Appeal Numbers 6800-01 of 2005 and 6802-03 of 2005. Besides the appeal of NOIDA the other two appeals were of Deepak Sharma and UPDESCO.
13. Interregnum change of political scenario with the advent of new Incumbent Government of BSP in the State it was decided by it to withdraw the above appeals pending before the apex court and therefore directed the authorities to with draw the appeals and implement the order passed by this Court in Deepak Sharma's case(Supra). On such a move made by the appellants before the apex court, the apex court dismissed the all the appeals as withdrawn with the following directions, which is quoted in para 12 of the writ petition itself:
On this submission, the appeals are disposed of as not pressed with a direction that the appellant shall implement the directions of the High Court
14. After withdrawal of the appeals the impugned FIR has been registered by the C.B.I. who harbingered the investigation during the course of which, to unearth the clandestine deals, fraud and manipulations, it raided and searched the houses of the petitioner, both at NIODA and at Lucknow, in his absence, to collect the materials and evidences of the crime. This search pervaded a sense of insecurity and incarceration psychosis in the mind of the petitioner attour, according to his case, the petitioner should have been treated as witness. Psychological thoughts of imprisonment which engulfed the petitioner was germinated from the feeling that malevolence by C.B.I. was done to humiliate and disrepute him and to tarnish his image albeit the petitioner was not arrested. Petitioner to obviate his maligning has filed the present writ petition with the above referred prayers.
15. We have heard Sri P.P. Srivastava and Sri Vinod Prakash Srivastava both learned Senior advocates assisted by Sri Sushil Shukla, Vikas Bhatnagar, Shishir Prakash Advocates, in support of this writ petition and Sri Govind Saran Hajela learned Counsel for the C.B.I. in opposition.
16. Together all the counsels for the petitioners in a chorus harangued that the FIR be quashed and the arrest of the petitioner be stayed as the registration of the FIR by the C.B.I. was wholly illegal and against the order passed by this Court in Deepak Sharma's case(Supra) where this Court has ordered thus:
We have already held that Writ Petition No. 48287 of 2005 is devoid of all merits and accordingly it has to be dismissed. However, we are inclined to keep this petition pending only for the purposes of issuing appropriate orders after the preliminary report is submitted by the CBI in respect of the documents produced by the NOIDA officials and the report on the basis of the investigation regarding manipulation in the draw of lots. However, Writ petition No. 50418 of 2005 is disposed of Let Writ Petition No. 48287 of 2005 be listed before us on 21.11.2005.
Learned counsels further submitted that on the one hand this Court has praised the petitioner for cancelling the lots of draw and contrary to such observations C.B.I. is harassing him by raiding his houses from dawn to dusk. Learned Counsel contended that the whole malevolent exercise conducted by the C.B.I. pursuant to withdrawal of the Civil Appeals are malicious, vindictive and motivated tainted with malafides. In paragraph 13 of the writ petition it is averred that -"...that the entire matter while above civil appeals have been mitigated in order to tarnish the image of the petitioner and other officers to implicate them in the instant case." In para 23 it is further alleged "...that withdrawal of civil appeal by Noida authority is demonstratively actuated with malice & unreasonableness".
17. It is argued that C.B.I. has wrongly registered the FIR even though there was no such direction for registration of formal FIR by this Court and no preliminary inquiry was conducted and for, theirs, this submissions counsels clothed their arguments beneath the observations of the Apex court in the case of State of Haryana v. ch. Bhajan Lal 1992 SCC (Cr) 1426 which they have referred to in para 16 of the writ petition and is being reproduced below:
77. In this connection, it will be appropriate to recall the views expressed by Mitter J. in P. Sirajuddin v. State of Madras in the following words: (SCC p.601, para 17 (1970 SCC 240) Before a public servant, what ever be his status, is publicly charged with acts of dishonesty which amounts to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, their must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but the department he belonged to, in general.... The means adopted is no less than the end to be achieved must be impeccable.
18. Further argument is that the act of the petitioner is a not a damnum and since he is ready to compear, as and when desired by the court, his liberty should be protected by a mandamus not to arrest him till investigation culminates into a report by the investigating agency. Learned Counsels with vehemence retorted that the act of the investigating agency in raiding the house of the petitioner is a faux pas and a temerity for a respectable person holding a high post in the Government. It is contended that the investigation in a manner as is being conducted by the C.B.I. is an actionable wrong and therefore must be clamped forth with. The residue and essence of their contentions, and which is the pivotal of filing this writ petition, in the pleadings of the petitioner himself, is averred in paragraph 69 of the writ petition, wherein the petitioner has averred as follows:
That more so, given the nature of accusations made in the impugned FIR, investigation of the same can be conducted and concluded by the respondent No. 2 effectively without necessitating the arrest of the petitioner as such it is prayed this Hon'ble court, even if the investigation is permitted to go on, may restrain the respondent No. 2 from effecting unnecessary arrest of the petitioner in connection with the FIR.
The above noted paragraph is the curtain drawing submission of the exercise undertaken by the above battery of eminent advocates.
19. Sri G.S. Hajela, counsel for the respondent C.B.I on the contrary refuted the argument and contended that the writ petition is premature and is liable be dismissed. We have pondered over the contentions raised before us and have perused the averments made in the writ petition and the attached annexures.
20. So far as the first prayer for quashing of the impugned FIR by issuing writ, order or direction in the nature of certiorari is concerned it is needless to say that the FIR has been registered under the orders passed by a bench of co-ordinate jurisdiction of this Court in Deepak Sharma's case (Supra ). We have already referred to paragraph 133 of the aforesaid judgement and directions contained therein. Above paragraph 133 is unambiguous and perceptibly clear so far as direction to investigate the crime of fraud and manipulations are concerned. Sine-qua-non for such an exercise is the formal registration of FIR by the investigating agency. In Madhu Bala v. Suresh Kumar and Ors. 1998 SCC (Cr) 111 it has been held by the apex court that a proper direction for investigation will be to direct to register a F.I.R. and then investigate the offence. By para 133 of Deepak Sharma's decision(Supra) what has been directed by the earlier division bench of this Court was to register the FIR and then investigate the offence. We can not interpret a decision in a pedantic manner bereft of what the Hon'ble judges wanted to direct. Fortiori of an investigation, as ordered by the previous division bench, was the registration of FIR. Another significant aspect of the matter is that we can not sit as appellate court over an order passed by an earlier division bench nor can assume such a character. We have to abide by it's directions and therefore have got a well circumscribed arena of judgement. A chapter which is already under monitor before an earlier division bench can not be adjudicated by us. It will be judicially inappropriate and wholly unwarranted by a Bench of Coordinate jurisdiction to pass an order contrary to the order passed by another Bench unless earlier order is contrary to the law laid down by the apex court or is per-incurium or ignores a statutory provision which is not the case here.
21. Contextually another important aspect of the matter is the order passed by the Apex Court which has been referred to by the petitioner himself in paragraph 12 of the writ petition and quoted above in the earlier part of this judgement. The Apex court has countenanced the implementation of the directions of the High Court which includes direction to conduct an investigation into charges of fraud and manipulation. The above direction of the Supreme Court can not be set aside or nullified by us as we are bound by it. We desist from further deliberation on this aspect of the matter as in our view the petitioner himself does not have any serious objection on the investigation being carried out by C.B.I. in pursuance of the impugned FIR in view of para 69 of the writ petition referred to above. This discussion lead us to conclude that the contention of learned Counsels for appellants that there was no direction to register the FIR to C.B.I. is wholly unfounded and with respect is contrary to the factual matrix and hence is repelled and there does not arise any question to quash the impugned FIR which prayer is hereby refused.
22. Coming to the second and the most inquisitive aspect of the petition from the petitioner's point of view i.e. stay of petitioner's arrest, we are constraint to observe that the said prayer is also wholly unfounded. There is total absence of pleading in the writ petition as to whether any attempt was made by the respondent investigating agency to apprehend the petitioner. Nothing has been pleaded and brought before us remotely suggestive that the investigating agency (C.B.I.) is endeavouring to arrest the petitioner. On repeated query by us to show us the material on the basis of which reasonable apprehension has been generated in the mind of the petitioner regarding his arrest by C.B.I. all the counsels reverberated only the factum of raids by C.B.I. at the houses of the petitioner from dawn to dusk. On being further probed as to whether any attempt was made to arrest the petitioner at the place of his posting or at any other place as he is a government servant the answers by the counsels were in the negative. We have also not been able to appreciate the said contention as to us, it seems, that a mere search of the houses of the petitioner does not indicate attempt to arrest him. The search, it seems, was conducted, not in an attempt to arrest the petitioner, but in an endeavour to collect the materials and evidences for establishing the charges of corruption, malpractices and manipulations done and to surface the reality and unearth the truth to bring out the real culprits and nothing more. Conducted raids are a part of investigation being under taken under the directions of a division bench this Court. Further the investigating agency is the best judge of the manner in which it has to conduct it's investigation. We can not direct how the investigation is to be conducted and continued. The apprehension of the petitioner is a day dreaming. If the investigating agency like the C.B.I. hankered arrest of the petitioner, the petitioner would not have been able to approach us by now by filing this writ petition. He would have been languishing behind the bars and would have been endeavouring to get bail. Petitioner's jittery psychosis is a apprehensive hallucination.
23. During the course of argument learned Counsels for the petitioner also informed us that they have made a recall application before the earlier division Bench in Deepak Sharma's case (Supra). Be that as it may they are free to approach the said Bench for redressal of any grievance but, to us, once a Bench of this Court is monitoring the investigation, we say only this much that it will be wholly inappropriate for us to generate another writ petition for the same cause of action. This writ petition is bereft of any merit and is dismissed.