Hon'ble Rajeev Singh,J.
1. Heard Shri H.G.S. Parihar, learned Senior Counsel assisted by Ms. Meenakshi Singh Parihar for the petitioner, Shri S.P. Singh, learned A.G.A. for the State and perused the impugned F.I.R. as well as material brought on record.
2. This petition has been filed seeking quashing of the F.I.R. No. 0437 of 2020, under Sections 13(1)(b) & 13(2) of the Prevention of Corruption Act, 1988, P.S. Wazirganj, District Lucknow along with the letters dated 22.04.2014 and 18.06.2012 passed by respondent no. 1. A further prayer of mandamus has been sought commanding the respondents not to arrest or interfere in the personal life and liberty of the petitioner on the basis of the impugned F.I.R.
3. The prosecution case, as per F.I.R., is that an open inquiry was conducted by Anti Corruption Organization (hereinafter referred to as the 'ACO') against the petitioner in regard to disproportionate assets acquired by him during the check period 01.04.2000 to 30.11.2011, in which he was found of having Rs.33,38,787.31/-, in excess of his income. Thereafter, the ACO lodged the impugned F.I.R. under Sections 13(1)(b) & 13(2) of the Prevention of Corruption Act, 1988, P.S. Wazirganj, District Lucknow against the petitioner.
4. Factual matrix of the case is that initially the petitioner joined as Junior Clerk in Government Normal School, Sonebhadra on 21.06.1991. Thereafter, he was transferred to various schools in Jaunpur as also worked under Deputy Director Education, Lucknow, Joint Director Education, Lucknow, DIOS-II, Lucknow and B.S.A., Lucknow upto 25.06.2008. Thereafter, he was appointed as Assistant Teacher (LT Grade) in Centennial Inter College on 07.02.2011. On 29.02.2012, an undated complaint was sent to the Chief Secretary, Government of U.P. by one Manoj Kumar Bhatnagar alleging that when the petitioner was posted in district Jaunpur, 8 Class-IV employees were appointed without following proper procedure, on which, vide letter dated 18.06.2012, Special Secretary, Basic Education initiated inquiry against 9 persons including the petitioner through ACO. On the basis of the said inquiry, F.I.R. No. 0437 of 2020 (supra) was lodged by the ACO. Hence, this petition.
5. Shri Parihar, learned Senior Counsel has submitted that the very basis of the inquiry, i.e., the undated complaint of Manoj Bhatnagar, in itself, is defective, as it had been moved without any affidavit in support of the same, which is contrary to the guidelines issued by Government Orders dated 19.04.2012 and 06.08.2018. It has further been submitted by learned counsel for the petitioner that the aforesaid Government Order dated 19.04.2012 was issued in pursuance of the order of this Court dated 3rd January, 2012 passed in Writ Petition (S/S) No. 4372 of 2011 (Kumdesh Kumar Sharma Vs. State of U.P.).
6. Further, drawing the attention of this Court towards the impugned letter of the Special Secretary dated 18th June, 2012 (annexed as Annexure 3 to the writ petition) requesting for conducting the inquiry through ACO, learned counsel for the petitioner has submitted that the ACO has no power to initiate any inquiry on the said proxy complaint, which was not even supported by any affidavit. It has been submitted that the Anti Corruption Organization (ACO) was created by way of Government Order bearing No. 2094/आठ-1-64/76 dated 18.04.1977, which was constituted for dealing with the complaints of corruption against the Inspector, Sub-Inspector, Prosecution Officer, Assistant Prosecution Officer. It also authorised the ACO for dealing with such complaints in relation to non-gazetted Officers of other departments also. However, with the object to deal with all the matters related to the corruption against any public servant of any department, Vigilance Establishment was notified on 29th August, 1977. Submission of the learned counsel for the petitioner is that after coming into existence of the Vigilance Establishment, ACO has no role in relation to conduct any inquiry against the petitioner.
7. It has also been submitted that Inspector, ACO sent a letter dated 13th August, 2018 to the petitioner asking for his appearance before him on 17.08.2018, in pursuance to which, petitioner approached to the Inspector and enquired as to whether any affidavit has been taken from the so called complainant, the Inquiry Officer assured the petitioner that he will comply with the Government Order dated 19.04.2012. However, the Inquiry Officer submitted the inquiry report without even taking any reply of the petitioner and lodged the F.I.R. in question.
8. Learned Senior Counsel has vehemently submitted that during the course of inquiry in the impugned F.I.R., the income of the wife of petitioner, in the said check period, was not taken into consideration, which was amounting to Rs.41,14,313/-. Petitioner also filed a writ petition bearing Writ Petition (M/S) No. 9864 of 2020 (Lalit Kumar Srivastava Vs. State of U.P.) on the ground that proxy complaint was moved without any affidavit and the ACO has no right to initiate inquiry against the petitioner in view of the Government Order dated 19.04.2012 read with Government Orders dated 09.05.1997 and 01.08.1997. It has been submitted by the learned counsel for the petitioner that vide order dated 19.06.2020, this Court directed the State Government to send instructions as to whether the aforesaid Government Orders are being complied or not, but in place of sending any instructions in that regard, F.I.R. in question was lodged by the ACO on 04.12.2020. It has, thus, been submitted that the impugned F.I.R. as well as the letters dated 22.04.2014 and 18.06.2012 passed by respondent no. 1 are liable to be quashed.
9. Learned A.G.A., on the other hand, while opposing the prayer of the learned counsel for the petitioner, has submitted that the F.I.R. discloses commission of offence. Learned A.G.A., while rebutting the argument advanced by the learned counsel for the petitioner regarding the power of the ACO, has submitted that the State Government vide Notification No. 2094/आठ-1-64/76 dated 18.04.1977 created the Anti Corruption Organization (ACO) under the provisions of Section 2 of Police Act, 1861 and it was kept under the Crime Investigation Department for dealing the complaint related to corruption of non-gazetted Government servants. He has also submitted that the Vigilance Establishment Act, 1965 was also enacted, which was notified on 29th August, 1977 for dealing with the complaints etc. in relation to the corruption against any public servant. It has, thus, been submitted by the learned A.G.A. that the argument advanced by the learned counsel for the petitioner that the ACO is not empowered to conduct open inquiry, has no force. It has further been submitted by the learned A.G.A. that under the order of the State Government, the open inquiry was conducted against the petitioner fixing the check period since 01.04.2000 to 30.11.2011, in which, it was found that in the said check period, total income of the petitioner was Rs.12,74,021/- and as per the fixed norms, 1/3rd of the total income had to be spent in the maintenance of the family. Further, the petitioner purchased a house amounting to Rs.3.02,020/- on 29.05.2000. Again on 18.11.2011, the petitioner purchased a flat No.9/301 Malhar Deluxe, Lucknow amounting to Rs.28,99,020/-. The petitioner also spent Rs.1,56,400/- and Rs.1,69,660/- towards tuition fees of his children. Further, the petitioner purchased a scooter amounting to Rs.29,928/- and also spent Rs.65,500/- towards maintenance of the said scooter. Learned A.G.A. has submitted that except the above expenditure, the petitioner was found to be having Rs.5,37,609.96/- in his three savings account. Thus, the total expenditure incurred by the petitioner during the said check period was Rs.45,84,812.31/-, i.e., he spent Rs.33,38,787.31/-, in surplus of his income. It has, thus, been submitted that the petition is liable to be dismissed.
10. We have considered the arguments advanced by the learned counsel for the parties and gone through the record.
11. Insofar as the argument advanced by the learned counsel for the petitioner in regard to the whole proceedings being defective, as the complaint itself is defective, has no force. As admittedly, the Government Orders dated 19.04.2012 and 06.08.2018 read with Government Orders dated 09.05.1997 and 01.08.1997 were issued by Personnel Department for the reason that, in case, any complaint is found to be made against any Government servant, the affidavit must be asked for from the complainant before dealing with such complaints. However, it is not barred that, in case, on a complaint, a close/open inquiry is initiated by any Agency and the allegations are found true, then the F.I.R. should not be lodged, only because of the fact that initially the complaint was not supported by any affidavit or the complaint was a proxy one. Further, we cannot also be oblivious to the fact that the disclosure of the identity of the complainant, in corruption matters, may put his/her life at danger. Moreover, as the F.I.R. has been lodged, the stage of genuineness of the affidavit, in the present case, is over.
12. Secondly, under the control of Crime Investigation Department, Anti Corruption Organization (ACO) was created under the provisions of Section 2 of Police Act, 1861 to deal all the complaints of non-gazetted Government servants. However, the Vigilance Establishment was enacted for the wider spectrum, i.e., to deal with all the cases related to bribe, misconduct or corruption against all the public servants. Therefore, the argument advanced by the learned counsel for the petitioner that ACO has no authority to conduct the inquiry in respect of the petitioner also has no force. Moreover, admittedly, in the open inquiry conducted against the petitioner, charge of disproportionate asset was found against him, on account of which, the F.I.R. No. 0437 of 2020 (supra) has been lodged and it cannot be said that a fact finding inquiry to know the truth, cannot be conducted.
13. The Full Bench of this Court in Ajit Singh @ Muraha Vs. State of U.P. and others : (2006) 56 ACC 433 reiterated the view taken by the earlier Full Bench in Satya Pal Vs. State of U.P. and others : 2000 Cr.L.J. 569 after considering the various decisions including State of Haryana Vs. Bhajan Lal and others : AIR 1992 SC 604 that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the police to investigate a case.
14. Further the Apex Court in the case of State of Telangana v. Habib Abdullah Jellani : (2017) 2 SCC 779 has disapproved an order restraining the Investigating Agencies arresting the accused where prayer of quashing the First Information Report has been refused.
15. In view of the above facts and discussions, the writ petition fails and stands dismissed.