Court No. - 1
Case :- CRIMINAL MISC. WRIT PETITION No. - 6890 of 2018
Petitioner :- Jitendra Arya
Respondent :- State Of U.P. And 03 Others Counsel for Petitioner :- Rahul Srivastava Counsel for Respondent :- G.A.,Gyan Prakash
Hon'ble Ramesh Sinha, J. Hon'ble Krishna Pratap Singh,J.
Heard Shri Rahul Srivastava, learned counsel for the petitioner, Shri Gyan Prakash, learned counsel for the Central Bureau of Investigation and Shri Vikas Sahai, learned Additional Government Advocate representing the State.
By means of this writ petition the petitioner Jitendra Arya, has prayed for quashing of the First Information Report dated 28.2.2018 lodged at Case Crime No. RC1202018A0003 under sections 120-B, 409, 420, 467, 468, 471 IPC and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and section 66 read with Section 43 of IT Act, 2003, police station CBI, ACB, Ghaziabad as also quashing of the order dated 28.2.2018 passed by the Superintendent of Police/Head of Branch whereby he has directed for registration and investigation of the case.
The brief facts giving rise to the present case are that a letter was written by Shri Sharad Kant Singh, Regional Manager, Prathma Bank, Regional Office, Alipur Chopia, district Amroha to the Superintendent of Police, Anti Corruption Branch, Central Bureau of Investigation, Ghaziabad, Uttar Pradesh intimating him in respect of a fraud transaction of Rs. 14,54,01,726/- detected in his Mandi Samiti Hasanpur Branch. By the said letter the Regional Manager has requested the Superintendent of Police, Anti Corruption, Central Bureau of Investigation Ghaziabad for registration of FIR against Shri Vipin Kumar, Shri Navin Kumar Sharma, Shri Soubir Singh, Shri Jitendra Arya, Shri Rajveer Singh, Smt. Meena, Shri Bhupendra Singh, Smt. Bhoori and also other unknown persons and investigation of the case.
On the basis of the aforesaid letter the Superintendent of Police/Head of Branch, CBI, ACB, Ghaziabad has directed for registration of the FIR against Vipin Kumar, Shri Navin Kumar Sharma, Shri Soubir Singh, Shri Jitendra Arya, Shri Rajveer Singh, Smt. Meena, Shri Bhupendra Singh, Smt. Bhoori and other unknown persons and directed Shri Gaurau Soam, Inspector, CBI, ACB, Ghaziabad to investigate the matter.
The allegations against the petitioner was that he in connivance with Shri Vipin Kumar and other unknown persons committed unauthorized transaction and thereby embezzled and misappropriated bank and public funds in the following manner:
1. Shri Jitendra Arya has a PKCC joint account No. 89033744815 with his mother Smt. Rajwati w/o Sri Devi Singh. Multiple credits received from various accounts in this PKCC account unauthorizedly and the same was withdrawn by him.
2. A SOD account No. 89035681523 of M/s Aryan Brothers was opened in which Sri Jitendra Arya was the sole proprietor. There are several unauthorized transactions in this account against the norms of the bank. Credits received in this account was withdrawn by him.
3. Several unauthorized credits were received from various accounts in S.B. A/c No. 89006268814 of Sri Jitendra Arya and the same was withdrawn by him.
The Prathma Bank, Mandi Samiti Branch, Hasanpur, J .P. Nagar for the purpose of assisting the Branch in opening account and also to encourage the local account holders to apprise them of the banking facilities, required certain private helpers known as “Business Facilitator” for which the Mandi Samiti Branch of the Bank had engaged the petitioner as Business Facilitator vide its permission/Engagement letter dated 14.9.2013 duly issued by the Regional Manager of the Bank, Alipur Chopla.
The permission/Engagement letter dated 14.9.2013 specified the duties of the petitioner as under:
1. Opening of SB accounts and Current accounts
2. Mobilisation of deposit- (Cash transaction by BF is not permitted)
3. Survey and identification of borrowers
4. Assistance in filing of loan application forms
5. Assistance in Formation and Linkage of SHG and attending meetings of SHG
6. Involvement in creating financial awareness among people
7. Participation in Health check up programmes to be organised by Bank.
8. Participation in Rural Extension Education programme of Bank
9. Participation in promoting “Prathama Solar Jyoti” through micro credit.
10. Participation in promotion promotion of Joint Liability Groups.
11. Assistance in recovery of NPS accounts.
Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the present case with some ulterior motive and he has no concern with the unauthorized transaction which took place in the bank.
Learned counsel for the petitioner further submits that the petitioner does not have any account in the name and style of M/s Aryan Brothers as has been alleged in the impugned FIR. The petitioner has neither signed any account opening form nor has given any ID or documentary proof in the name and style of M/s Aryan Brothers.
Learned counsel for the petitioner also submits that on receiving messages he has come to know about the fake accounts and he immediately contacted the Branch Manager Shri Vipin Kumar, who threatened him of dire consequences. Therefore, he cannot be held responsible of any fraudulent transaction, if any, took place in the account to which the petitioner has nothing to do.
Shri Gyan Prakash, learned counsel for the CBI has argued that the contents of the FIR disclose the commission of cognizable offence against the petitioner. He further argued that looking into the nature of case at this stage it cannot be said that no offence is made out against the petitioner and thus, petition is liable to the dismissed.
The FIR has been lodged on the basis of the letter written by the Regional Manager, Prathma Bank, Regional Office to the Superintendent of Police, Anti Corruption Branch, Central Bureau of Investigation, Ghaziabad in which serious allegations against the petitioner have been levelled, which have already been spelt out above.
Legal position with regard to exercise of jurisdiction by the Court for quashing of the FIR is now well settled.
In State of Haryana Vs. Bhajan Lal, 1992 (51) SCC 335, the Apex Court laid down certain broad tests to exercise the inherent power or extraordinary power of the High court. The Court held as under:
“the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution.
The Apex Court further laid down the guidelines for exercise the inherent powers as under:
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.
2. Where the allegations in the first Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2)of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out as case against the accused,
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by as police officer without an order of a Magistrate ass contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision of the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
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.
Powers of the police to effect an arrest has been clarified by the Apex Court in M.C. Abraham and another Vs. State of Maharashtra and others, 2003(2) SCC 649 and the Court held as under:
“In the first place, arrest of an accused is a part of the investigation and is within the discretion of the investigating officer. Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a Magistrate and without a warrant. The section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant, arrest any person in the situations enumerated in that section. It is open to him, in the course of investigation, to arrest any person who has been concerned with any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. Obviously, he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged. In appropriate cases, after some investigation, the investigating officer may make up his mind as to whether it is necessary to arrest the accused person. At that stage the court has no role to play. Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised. It depends inter alia upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. Obviously, the power has to be exercised with caution and circumspection.
In Adri Dharan Das Vs. State of West Bengal, AIR, 2005 SC 1057, the necessity of arrest for various aspect of investigation have been clarified by the Apex Court in the following words:
“Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.”
In Emperor Vs. Khwaja Nazir Ahmad, AIR 1945 PC 18, the Privy Council considered the issue while dealing with the statutory rights of the police under sections 154 and 156 of the Code of Criminal Procedure for investigation of a cognizable offence. The Privy Council made the following observations:
“So it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry...it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complimentary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function,...the Court's functions begin when a charge is preferred before it and not until then.”
While dealing with the powers of investigation by a police officer under the Code of Criminal Procedure, the Supreme Court in State of Bihar and another Vs.
J.A.C. Saldanna and others, 1980 AIR 326 held as under:
“There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively for the Executive through the police department, superintendence over which vests in the State Government. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the Investigating Officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code, its duty comes to an end.”
In State of U.P. Vs. O.P. Sharma, 1996 SCALE (2) 356, Apex Court has held that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under section 482 of the Code or under Article 226 or 227 of the Constitution of India, as the case may be, and allow the law to take its own course.
In view of the aforesaid settled position of law coupled with the fact that the FIR, prima facie, discloses cognizable offence, which has been lodged on the basis of the letter written by the Regional Manager to the Superintendent of Police, Anti Corruption Branch, CBI intimating him about the fraudulent transaction of Rs. 14,54,01,726/-, we are not inclined to quash the FIR or to stay the arrest of the petitioner.
The writ petition is devoid of merits, it is accordingly dismissed.
(Krishna Pratap Singh, J ) (Ramesh Sinha, J.) Order Date: 23.3.2018 Ishrat