Hon'ble Arvind Kumar Mishra, I,J.
Heard Sri Daya Shanker Misra, Sri Chandrakesh Misrha, learned counsel for the petitioner, learned A.G.A. for the State of U. P. and Sri Anurag Khanna, learned Counsel for the C.B.I.
The petitioner Sanjay Arora, preferred the writ petition against the FIR dated 4.7.2013 bearing no. R.C.1202013 A0012 of 2013 P.S. C.B.I.A.C.B. Ghaziabad under sections 120-B,420 I.P.C. and section 13(2) read with sections 13(1)(d) of Prevention of Corruption Act with a prayer to quash the same and to stay the arrest during the pendency of the investigation of the above mentioned case or to pass any other order, which this court deems fit and proper in the interest of justice.
It is contended by the learned counsel for the petitioner that :-
i.the petitioner has not committed any offence punishable under section 120-B 420 I.P.C. and section 13(2) read with 13(1)(d) of Prevention of Corruption Act of the aforesaid offence are not made out on the basis of the allegations made in the impugned FIR.
ii.the petitioner is the proprietor /owner of a shop running in the name and style of M/s Arora Optical Super Market in the back of Taj Hotel, Saharanpur. The petitioner is not the proprietor of M/s Netra Jyoti Ravi Optical, Bhagat Singh, Marg, Saharanpur, which is proprieted/owned by his father Sri Shyam Lal Arora. The petitioner is not, even the partner of the shop. The allegation in the FIR has been made with regard to the shop M/s Netra Jyoti Ravi Optical, no allegation is made with regard to the shop M/s Arora Optical, which is proprieted/owned by the petitioner.
iii.a written complaint dated 2.7.2013 of Sri C.B.S. Adhikari Inspector of Police C.B.I. Dehradoon addressed to the Head of the Branch, Central Bureau of Investigation, Anti Corruption Branch, Ghaziabad was received, which was registered as first information report the contents of the complaint are reproduced below;
"To The Head of Branch, CBI/ACB, Ghaziabad Sir, In compliance with the order dated 15.11.2011 of the Hon'ble High Court of Uttar Pradesh, Lucknow Bench, relating to utilization of NRHM funds, a Preliminary Enquiry was registered at CBI, Dehradun branch on 31.01.2013 against unknown officers of Health & Family Welfare Department, District Saharanpur and against unknown private persons to enquire into alleged irregularities/ illegalities in the expenditures incurred specially purchases made by officials of Health and Family Welfare Department of District Saharanpur, U.P. and also to find out deliberate acts of omission and commission of officials of Health and Family Welfare Department o District Saharanpur and other unknown private persons during implementation and utilization of NRHM funds.
During the enquiry, it is revealed that DR. S.K. Singh was posted and working as Chief Medical Officer, Family Welfare, Saharanpur and Dr. Sunil Verma look after the work of School Health Programme of district Saharanpur during the financial year 2010-11. The Director General. Family Welfare, Lucknow has released Rs. 1,97, 000 for the purpose of purchase and distribution of spectacles for school' students who were infected with eye vision disorder under SCHOOL HEALTH PROGRAMME, of NRHM vide its order No. Pa Ka/NRHM/45/2010-11/97-70 dated 11/02/2011. It was clearly instructed to all CMO (FW) that the aforesaid fund was allotted for distribution of spectacles for student, infected with vision disorders. It is further mentioned in this order that CMO will direct to CMS of district hospital and concerned Community Health Centres (CHCs) to examine the vision disorders of those students who referred to them under School Health Programme and treat those students accordingly and provide them free spectacles as per allotted refractive error number and fill the referral slip with countersign on this referral slip. This programme was only for the students of Class 1st to 5th and of age between 6 to 10 years. Enquiry has further revealed that the aforesaid budget was allotted on the basis of reports of 2009-10. This fund was allotted to distribute spectacles to 985students of 11 blocks of district Saharanpur.
Enquiry further revealed that as per aforementioned order of DG Family Welfare, CMO Saharanpur has received RS. 1,97,000 for School Health Programme of district Saharanpur. In pursuance of this order, Dr. S.K. Singh, the then CMO (FW) Saharanpur ordered to Optometrist, Primary Health Centre Muzaffarabad, District Saharanpur vide the letter No. Vi Swa Karya/2010-11 dated 29.03.2011 to co0ordinate with Optometrist of PHC Sadoli Kadeem and distribute them the spectacles and produce the respective bills to CMO office for payments. In pursuance of the aforesaid letter of CMO (FW), Saharanpur, Sh. No. Nil dated nil and informed to CMO (FW) that the 158 spectacles were distributed to students of Muzaffarbad block and produced the invoice No. 744 dated 27/03/2011 of M/s Netra Jyoti Ravi Optical, Saharanpur of Rs. 31,600/- which showing the supply of 158 spectacles at the rate of Rs. 200/- per spectacle, On the basis of back dated bill of M/s Netra Jyoti Ravi Optical and report of Sh. Mukesh Agarwal, CMO (FW) has issued a cheque No. 639947 dated 29.3.2011 of Rs. 31,600 in favour of M/s Ravi optical, Saharanpur. Enquiry further revealed that Sh. Mukesh Agarwal, Optometrist had mentioned on bill of M/s Netra Jyoti Ravi optical that i have received the spectacles and distributed Sh. S.K. Singh, CMO (FW) had also mentioned PASSED on aforesaid bill. Enquiry has further revealed that on the summary of cheque which was maintained at office of CMO, Saharanpur, Sh. Mukesh Agarwal has mentioned Cheque Received.
Enquiry has further revealed that Sh. Mukesh Agarwal, Optometrist, PHC Muzaffarabad against submitted his report to CMO (FW) vide letter No. Nil dated nil and informed that the 500 spectacles were distributed to students of Sadoli kadeem, Puwarka and Muzaffarbad block and produced the bill No. 38 dated 30.3.2011 of M/s Doon Optical Centre, Ranjha wala Dhang, Raipur, Dehradun of Rs. 1,00,000/- which showing the supply of 500spectacles at the rate of Rs. 200/- per spectacle. On the basis of bill of M/s Doon Optical Centre, Ranjha wala Dhang, Raipur, Dehradun and report of Sh. Mukesh Agarwal, CMO (FW) had ordered to issue a cheque to Usha Sharma and then issued a cheque no. 635912 dated 30.3.2011 of Rs. 1,00,000 in favour of M/s Doon Optical Centre, Raipur, Dehradun. It is also revealed that Sh. Mukesh Agarawal has mentioned on bill that he has received and distributed the spectacles. Dr. S.K. Singh, the then CMO (FW) also ordered on bill that please issues the cheque in favour of Usha Sharma. Enquiry has further revealed that the business affair of M/s Doon Optical Centre were being looked after by Sh. Rohit Sharma, son of Smt. Usha Sharma, proprietor of M/s Doon Optical Center.
Enquiry has further revealed that Sh. Mukesh Agarwal, Optometrist, PHC Muzaffarabad again submitted his report vide letter no nil dated nil and informed that the 324 spectacles were distributed to school students and produced the bill no. 49 dated 31.03.2011 of M/s Doon Optical Centre Raipur, Dehradun of Rs. 64,800/- which showing the supply of 324 Supply of 324 spectacles at the rate of Rs. 200/- per spectacle. On the basis of bill or M/s Doon Optical Centre, Raipur, Dehradun and report of Sh.Mukesh Agarwal. Sh. S.K.Singh the then CMO (FW) had issued a cheque no. 635921 dated 31.03.2011 in favour of M/s Doon Opitcal Centre, Raipur, Dehradun. It is worth to mention here that on the summary of cheque which was maintained at office of CMO Sh.Mukesh Agarwal has mentioned Cheque Received and signed.
Enquiry has further revealed that the amount of Rs. 1,97,000 was allotted to CMO ( FW) Saharanpur for distribution of spectacles to those students of class 1st to 5th who suffered with vision disorder. It was clearly mentioned in order that CMO will direct CMS of district hospital and CHCs and this fund was allotted for all 11 blocks of district Saharanpur. But Dr.S.K.Singh, the then CMO (FW) kept all orders and instructions aside and vide his letter no. Vi Swa Karya/2010-11 dated 29.3.2011 ordered Sh.Mukesh Agarwal in this regard only for PHC Muzaffarabad, Sadoli Kareem and Puwarka without any specific reason. Enquiry further revealed that Sh.Mukesh Verma did not organize any eye check camp programme for the school children at Block Muzaffarbad, Puwarka, and Sadoli Kareem. Even no supply order was produced before any suppliers. No list of beneficiary is available in the records of CMO Office. During enquiry, Sh.Rohit Sharma, M/s Doon Optical Centre were examined and he stated that he never made any supply of spectacles to CMO (FW)Saharanpur and he gave Rs. 1,48,500/- Sh.Mukesh Agarwal in cash and in lieu of that Sh. Mukesh Agarwal gave him two cheques of Rs. 1,00,000/- and Rs. 64, 800/-in favour of Smt. Usha Sharma. The examination of Sh. Sanjay Arora, Proprietor M/s Netra Jyoti Ravi Optical also revealed that he never made any supply of spectacles to CMO ( FW) Saharanpur and he gave Rs.27000 to Shri Mukesh Agarwal in cash and in lieu of that Sh. Mukesh Agarwal gave him on cheque of Rs. 31600 in the name of Ravi Optical. Both the suppliers stated that they provided only bills of spectacles to CMO office at the behest of Sh. Mukesh Agarwal. Optometrist and in lieu of that, they got 10% money of total bill amount. During enquiry, the examination of Smt. Shobha Shakdhar, Optometrixt, PHC, Sodoli Kadeem and Shri Sunil Kumar Tyagi, Optometrist, PHC, Puwarka revealed that they did not have any knowledge about the orders of CMO. FW Saharanpur regarding distribution of spectacles in their blocks. They further stated that no eye screening camp was organised by Shri Mukesh Agarwal in their blocks and no spectacles were distributed to school children during March and April 2011 in their blocks.
Enquiry further reveals that neither quotation nor tender were called for the purchase of aforesaid spectacles and violated all set rules and regulation No end use of these spectacles, list of beneficiary and no quotation regarding purchase are available in the records of office of CMO,Saharanpur. The bills which showing the supply of total 982 spectacles were found false during enquiry.
On the basis of facts and circumstances, mentioned above, prima facie , it appears that Dr. S.K.Singh, the then CMO (Family Welfare), Saharanpur in connivance with Sh. Mukesh Agarwal, Optometrist, Sh. Rohit Sharma, Sh. Sanjay Arora and other unknown persons had violated all the norms/ guidelines for purchase of spectacles under School Health, Programme of NRHM and submitted/ accepted false bills and showed false utilization of funds allotted under this programme, thereby caused a wrongful loss to the Government and corresponding gains to themselves to the tune of Rs. 1,96,400/-
It is therefore, requested that a regular case may please be registered under section 120-B, 420 IPC & 13(2) r/w 13(1)(d) PC Act 1988 against the following.
1.Dr. S.K. Singh, the then Chief Medical Officer (Family Welfare), District Saharanpur, Uttar Pradesh.
2.Sh. Mukesh Agarwal, Optometrist, Primary Health Centre, Muzaffarbad, Saharanpur.
3.Sh. Sanjay Arora, M/s Netra Jyoti Ravi Optical, Saharanpur.
4.Sh. Rohit Sharma, M/s Doon Optical Centre, Raipur, Dehradun.
5.Other Unknown persons.
Sd/- 02/07/2013 (C.B.S. Adhikari) Inspector of Police CBI/ACB, Dehradun"
On the basis of the above mentioned complaint, the D.I.G./Head of the Branch of C.B.I. A.C.B. Ghaziabad registered a regular case against the petitioner Sanjay Arora, Dr. S.K. Singh, Sri Mukesh Agarwal, Sri Rohit Sharma and other unknown persons on 4.7.2013.
iv.The petitioner Sanjay Arora is not a public servant, therefore, the provisions of the Prevention of Corruption Act, 1988 are not attracted against him and on the basis of the contents of the above mentioned complaint, no offence of cheating and hatching the 'criminal conspiracy' is made out against the petitioner.
v.the petitioner is not a public servant, he is a simple shop keeper carrying on business of optical. He was having no nexus with other co-accused persons, even from his shop no spectacles was sold, cheque amount of Rs. 31,000 was not deposited in the name of the petitioner or his shop's name, it was deposited in the account of the firm proprieted by his father, even subsequent cheque of Rs. 27,000/- was not issued from the account of the petitioner or his firm's account. It was issued from the firm account of his father, his father has not been made the accused in the present case. In any case it has not been established that the petitioner was involved in the commission of the offence related to utilization of N.R.H.M. fund.
vi.at the most it may be said that the FIR has been lodged against the petitioner for the offences in which maximum sentence of seven year has been provided and the arrest is not necessarily required, the petitioner is entitled to have the benefit of the section 41(1)(2),41-A,41-B of the Code of Criminal Procedure, 1973.
vii.The petitioner is an innocent & law abiding person, he is not having any criminal background, he shall always be available for providing corporation in the investigation, therefore, during investigation, he may not be arrested.
viii the impugned FIR is not disclosing the commission of the offence punishable under sections 120-B,420 I.P.C. and sections13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988, therefore, the impugned FIR may be quashed.
In reply to the above contention it is submitted by the Sri Anurag Khanna, learned counsel for the C.B.I. that in the present case the impugned FIR has been registered on the basis of the complaint dated 2.7.2013 has been filed after holding proper enquiry, which was registered on 31.1.2013 against unknown persons of Health and Family Welfare Department, district Saharanpur and against unknown private persons in an enquiry into alleged irregularities/illegalities in the expense incurred specially purchase made by the official of Health and Family Welfare Department district Saharanpur with regard to the utilization of N.R.H.M. fund, name of the petitioner and other co-accused persons came to light, during enquiry material has been collected showing the involvement of the petitioner in the commission of the alleged offence. Thereafter, the impugned FIR has been lodged against the petitioner and other co-accused persons, the allegations made in the FIR, are prima facie disclosing the commission of the cognizable offence. The petitioner is not a public servant, the allegation of his involvement alongwith the public servant in the commission of the offence, has been made, therefore, he shall also be tried alongwith public servant. In support of the submission case of P. Nallammal Versus State Rep. by Inspector of Public decided by the supreme court of India on 9.8.1999 as reported LAWS(SC)-1999-8-103/JT-1999-5-410 has been cited and emphasis has been given on paragraph 5 of its judgement, which read as under :
"5. THUS, clause (b) of the sub-section encompasses the offences committed in conspiracy with others or by abetment of "any of the offences" punishable under the P.C.Act. If such conspiracy or abetment of "any of the offences" punishable under the P.C.Act can be tried " only" by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. If non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the P.C.Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter. "
The impugned FIR, prima facie is disclosing the commission of a cognizable offence, for the purpose of quashing the FIR, it may not be considered whether a particular offence is made out against the petitioner. The FIR has to be read as a whole for the purpose of disclosing a cognizable offence. The impugned FIR is disclosing a cognizable offence and the petitioner being a non public servant is also liable to be tried alongwith the public servant before the court of Special Judge, having jurisdiction in the matter. The investigation on the basis of the impugned FIR is going on and there is no bar in making arrest of accused for the offence punishable upto 7 years of sentence. The petitioner had already moved a criminal misc. application under section 482 Cr.P.C. No. 39071 of 2013 with a prayer that a suitable direction be issued to the court below to consider his bail on the same day, the same has been finally disposed of by Hon'ble Single Judge of this court on 30.10.2013 by passing the following order.
"Hon'ble Karuna Nand Bajpayee,J.
This application u/s 482 Cr.P.C. has been filed for direction to the court below to consider the bail of applicant on the same day in Case Crime No.1202013A0012 of 2013 u/s 120B, 420 IPC and 13(2) read with 13(1)(D) Bhrasthachar Niwaran Adhiniyam, P.S.-C.B.I., District-Ghaziabad.
Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.
In view of the peculiar circumstances of the case, it is directed that in case the applicant appears before the court below within one month from today and applies for bail, his prayer for bail be considered expeditiously.
It is made clear that if the applicant does not avail of this order within stipulated period of time, no time extension application shall be entertained.
With the aforesaid observations this application is finally disposed of.
Order Date :- 30.10.2013 M. Kumar "
In pursuance of the order dated 30.10.2013, the petitioner did not appear before the court concerned within a month from the date of the aforesaid order.
The learned counsel for the petitioner has drawn attention of the court towards the provisions of section 41(1) and 41-A of the Code of Criminal Procedure1973 by submitting that the maximum sentence of seven year has been provided for the offence mentioned in the impugned FIR, therefore, the benefit of section 41(1)(b) of Cr.P.C. may be extended to the petitioner because his arrest is not required under the provisions of sub-section (1) of section of 41 Cr.P.C. To deal with this issue a perusal of section 41 and 2(c) of the Code of Criminal Procedure, 1973 is necessarily required. Section 2(c )deals with the definition of 'cognizable offence', which reads as under :-
"Cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Scheduled or under any other law for the time inforce, arrest without warrant."
Section 41 of the Code of Criminal Procedure, 1973 empowers the police officer to arrest a person without an order from a magistrate and without a warrant, section 41 of the Code of Criminal Procedure read as under :-
41. When police may arrest without warrant.- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-
(a) Who commits, in the presence of a police officer, a cognizable offence,
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-
(i)the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence.
(ii)the police officer is satisfied that such arrest is necessary-
(a) to prevent such person from committing any further offence;
or
(b) for proper investigation of the offence; or
(c)to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the police officer; or
(e) as unless such person is arrested, his presence in the court whenever required cannot be ensured;
and the police officer shall record while making such arrest, his reasons in writing.
Provided that a police officer shall in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d)in whose possession any thing is found which may reasonably be suspected to be stolen property and who may reasonable be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section(5) of section 356; or
(i)for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
Having heard the learned counsel for the petitioner and the learned counsel for the C.B.I. and perusing the record including the impugned FIR it reveals that the petitioner is not a public servant but other co-accused Dr. S.K. Singh and S,ri Mukesh Agarwal are the public servant, allegations made in the impugned FIR are prima facie disclosing the commission of an offence punishable under the Indian Penal Code and the Prevention of Corruption Act, 1988. It is settled law that a non public servant may be tried alongwith the public servant for the offence punishable under the Prevention of Corruption Act. The case of the petitioner may not be considered in isolation, ignoring the allegation with regard to the commission of the offence punishable under the Prevention of Corruption Act, at this stage it is not proper to record any finding in this regard, but the main consideration is whether any cognizable offence is made out on the basis of the allegation made in the impugned FIR. A bare perusal of the impugned FIR reveals that the allegations made therein are prima facie disclosing the commission of a cognizable offence. There is no good ground to interfere with the impugned FIR and to stay the arrest of the petitioner, therefore, the prayer for quashing the impugned FIR and staying the arrest of the petitioner during the pendency of investigation is refused.
For the purpose of extending the benefit of section 41(1)(b) the offence must be cognizable, punishable with imprisonment for a term which may less then 7 years or which may extend to 7 years whether with or without fine, if certain conditions mentioned therein are satisfied. Cognizable offence is defined under 2(c) of the Code of Criminal Procedure, according to the definition 'cognizable offence means an offence for which, and 'cognizable case' means an offence for which a police officer may in accordance with the First Schedule or under any other law for the time being inforce, arrest without warrant.' According to the First Schedule a classification of the offence punishable has been given in which the first category is that of the offence under the Indian Penal Code and the second category is the classification of offence against other laws. The offence punishable under the Prevention of Corruption Act does not come in the first category of classification, it also does not come in the second category, classification of offence against 'other laws' in which the offence punishable with an imprisonment for three years and upward but not more than 7 years has been made cognizable, but triable by a magistrate of first class. In the present case impugned FIR is under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988, which is triable by a court of Sessions and not triable by a court of magistrate, therefore, protection of section 41(1)(b) may not be available to the petitioner.
For the purpose of disposal of the bail application, the petitioner had already filed the criminal misc. application under section 482 Cr.P.C. No. 3071 of 2013, the same has been disposed of on 30.10.2013 with a 'direction that in case the petitioner appears before the court below within a month and applies for bail, his prayer for bail, be considered expeditiously' but the petitioner has not appeared before the court below in pursuance of the order dated 30.10.2013, therefore, no further direction may be issued in this regard.
Accordingly this petition is dismissed.
Dt. 10.4.2014 NA