Allahabad High Court
Aftab Ahmad vs State Of U.P. Thru. Prin. Secy. Home And ... on 18 December, 2017
Bench: Ajai Lamba, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 9 Case :- MISC. BENCH No. - 28966 of 2017 Petitioner :- Aftab Ahmad Respondent :- State Of U.P. Thru. Prin. Secy. Home And Others Counsel for Petitioner :- Mohd. Mansoor,Syed Ali Rehan Counsel for Respondent :- Govt. Advocate Hon'ble Ajai Lamba,J.
Hon'ble Dinesh Kumar Singh,J.
(Per Dinesh Kumar Singh, J.)
1. The present petition has been filed seeking a writ of mandamus for a fair and proper investigation in Case Crime number 512 of 2010, under Sections 409, 467, 468, 420, 120B I.P.C. and Section 13(1)(d) and 13(2) Prevention of Corruption Act, Police Station Krishnanagar, District Lucknow.
2. At the relevant time, the petitioner was posted as Assistant Engineer (Revenue) in the office of Power Corporation Limited (Madhyanchal Vidyut Nigam Limited), Krishna Nagar, Lucknow. A complaint was received in the office of the Managing Director that the bills of certain customers of electricity were reduced illegally. A committee was constituted to enquire into the matter by the Managing Director of the Uttar Pradesh Power Corporation Limited.
3. It is alleged in the petition that Mr. Jitendra Nath Shukla, Office Assistant-III who used to prepare the bill job summary was asked by the enquiry committee to provide certain documents which he did not provide and he remained absent from the office.
4. The petitioner obtained a photocopy of the job summary of the bills for the month of July, 2010 from the Computer Billing Service Centre (CBSC) and found that certain manipulations had been done by Jitendra Nath Shukla in the records/bills for the month of July, 2010 so as to give undue pecuniary advantage to the consumers. Since the documents were not being made available to the enquiry committee by Jitendra Nath Shukla, the petitioner lodged an FIR against Jitendra Nath Shukla on 6.11.2010 on the direction of Executive Engineer at the Police Station Krishna Nagar, under Sections 409, 467 and 420 IPC which was registered as Case Crime No.512 of 2010.
5. Thereafter a departmental enquiry ensued against the petitioner by issuing a charge-sheet dated 19.06.2013. After completion of the departmental enquiry, punishment order was passed against the petitioner on 12.06.2015. The punishment of minor penalty was given against the petitioner. He was, however, got superannuated in the meantime on 30.04.2014 and, therefore, minor penalty could not be imposed on him.
6. The investigation of the Case Crime No. 512 of 2010 was transferred to economic offence wing (EOW) in the year 2011. Considering investigation the petitioner was called for recording his statement etc., and it appears that certain incriminating evidence was found against the petitioner and others.
7. Apprehending his arrest, the petitioner has approached this Court in the present petition on the ground that he believes that investigating officer of the EOW has not been conducting a fair and impartial investigation and the police authorities have connived with the accused Jitendra Nath Shukla, named in the FIR. The petitioner is being falsely implicated to save Jitendra Nath Shukla for extraneous considerations. The petitioner has also prayed for a writ of mandamus not to arrest him.
8. In pursuance of the notice issued, a short counter affidavit has been filed by Devendra P. Narayan Pandey, S.P. EOW, Lucknow. In para 8 of the short counter affidavit, it has been specifically said that during the course of Investigation by the EOW, the investigating officer has collected sufficient credible and incriminating material which demonstrates that the petitioner along with co-accused Accountant, Shri Kaushal Kishore Singh and the Executive Engineer, Shri Ram Prakash Ken has committed the offence. These three accused joined hands together for commission of the offence. They lodged the FIR in order to mislead the investigation and tried to falsely implicate Subordinate Clerk, Letter Messenger/Patra Vahak.
9. It was further said that the material has been collected which establishes that the fabricated documents were prepared which were signed by the accountant K. K. Singh, Assistant Engineer (Revenue) Aftab Ahmed, the petitioner and the Executive Engineer Sri Ram Prakash Ken. The signatures of these three accused were found on the forged and fabricated documents. It is further alleged that these three accused would hand over sealed envelope to J. N. Shukla, Subordinate Clerk (letter messenger) for delivery at CBSC. Jitendra Nath Shukla delivered the sealed envelops to the Executive Engineer posted at CBSC. After making correction in the computers on the basis of the documents received in the sealed envelope, these documents were handed over to Jitendra Nath Shukla in a sealed envelope who would deliver these documents to Ram Prakash Ken, the Executive Engineer. He would open the sealed envelope in front of the petitioner and Accountant Shri K.K. Singh and bills were prepared for dispatching to the consumers by them on the basis of these fabricated documents. It was the duty of the Accountant K.K. Singh to keep the corrected bills. When the matter was discovered these three persons levelled false charge against letter messenger, Jitendra Nath Shukla by misusing their authority and got registered the case crime number to save themselves without bringing it to the notice of the higher authorities and without having requisite approval. It has been finally said on the basis of evidence collected and investigation carried out, the petitioner and other co-accused have been found to have committed the offences under Sections 409, 420, 467, 468, 471 I.P.C. and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act.
10. It has further been said that after conclusion of the investigation, the last progress report (LPR) in terms of Final Conclusion Report under Section 173(2) Cr.P.C. in the form of charge-sheet was forwarded to the State Government for its approval on 26.06.2015 and the State Government has approved charge-sheet on 14.07.2017.
11. Notice under Section 55 of the Cr.P.C. has been issued to the concerned police station for effecting arrest of the petitioner. The petitioner is absconding and evading his arrest and, therefore, the charge-sheet has not been filed so far before the learned competent Court inasmuch as the Court below is reluctant to accept the charge-sheet for further proceedings unless the accused is arrested and produced before the learned Court along with the charge-sheet.
12. Delay in concluding the investigation has been explained in para 17 of the affidavit. It is said that the EOW was required to examine voluminous documents and records to unravel the crime and several witnesses were to be examined to find out modus operandi of the accused in committing the crime.
13. Learned counsel for the petitioner submits that the investigation has been maliciously done to save Jitendra Nath Shukla. The petitioner is innocent and is being falsely implicated. The petitioner was exonerated in the disciplinary proceedings except that he was found guilty for dereliction of duty for not properly supervising the work and conduct of his subordinates. He further submits that the F.I.R. was registered by him in the year 2010 and even the EOW has taken more than 6 years to conclude the investigation.
14. The prosecution has no plausible explanation for this inordinate delay in concluding the investigation. The investigation has been improper and I.O. conducted the investigation in a malafide manner to falsely implicate the petitioner and, therefore this cannot be said to be fair and impartial investigation. Fair and impartial investigation is a part of fair trial. It is a fundamental right of every citizen including the accused that a crime is investigated in a fair and impartial manner. The learned counsel has placed reliance on the judgment of the Supreme Court in the case of Bishwanath Pratap Singh versus State of Bihar (1994) 3 SCC 97 to contend that in absence of plausible explanation forthcoming for delayed conclusion of the investigation of the crime, the right to speedy trial of the petitioner has been infringed and, therefore the entire proceedings in pursuance of the FIR are vitiated.
15. Sri R.K. Diwedi, learned AGA appearing for the State submits that the modus operandi of the petitioner and two other accused was very complex and it required examination of voluminous record and collection of evidence was a time consuming job. The delay in conclusion of the investigation cannot be said to be inordinate delay particularly when the offence has been committed by forging of the documents by the officials themselves and to deflect the investigation, the FIR was lodged against subordinate official who had no role to play in forging of the documents as is evident from the investigation itself.
16. Sri Diwedi further submits that the judgment relied on by the petitioner has no relevance and that judgment was passed in peculiar facts and circumstances of the case of the said case. Sri Diwedi further submits that the present case is not for quashing of the FIR but for fair and impartial investigation. The investigating agency has carried out thorough, fair and impartial investigation and charge-sheet has been approved by the State Government, sanction has been granted. He submits that the petition deserves dismissal as having no merit.
17. The framers of Indian Constitution have set out the constitutional vision in the preamble i.e. realisation of justice (social, economic and political) ; liberty, equality and fraternity for the citizens of this country. Corruption by the persons holding public office denies justice to the citizens and its works against the constitutional vision of justice. If there is corruption by the persons holding public office, there is infraction of the rule of law. A society with written constitution claiming to be governed under the rule of law needs to uproot the corruption from every walk of life. Corruption has taken deep roots in the society and it is eating the vital organs of the governance. The citizens lounge for good governance which means equality before law and equal protection of laws. If there is a corruption in the administration, this basic fundamental right guaranteed under Article 14 of the Constitution of India gets violated. A society governed by rule of law requires to reassure its citizens that the governance is free from corruption and nepotism.
18. Persons holding public office are trustees of the people?s right. They are required to discharge their duties and perform their function for the welfare of the citizens. If they indulge in corruption, they would breach the trust which they hold by virtue of their positions. Unless the administration is free from corruption and nepotism, the constitutional goal of justice as set out in the Preamble cannot be realised.
19. The Supreme Court in the case of Subramanyam Swamy versus Central Bureau of Investigation in (2014) 8 SCC 682 has held as under:-
?71. Office of public power cannot be the workshop of personal gain. The probity in public life is of great importance. How can two public servants against whom there are allegations of corruption or graft or bribe- taking or criminal misconduct under the PC Act, 1988 can be made to be treated differently because one happens to be a junior officer and the other, a senior decision maker.
72. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation.?
20. Tackling corruption is the biggest challenge of the government. All organs of the government i.e. legislature, executive and judiciary are required to keep in mind that if the evil of corruption is not uprooted from the governance, the constitutional philosophy and goals set up by the framers of the Constitution would remain a distant reality and the society would not be said to be governed by rule of law.
21. The Supreme Court in the case of Neera Yadav versus Central Bureau of Investigation (2017) 8 SCC 757 has held as under:-
?59. Every country feels a constant longing for good governance, righteous use of power and transparency in administration. Corruption is no longer a moral issue as it is linked with the search of wholesome governance and the society?s need for re-assurance that the system functions fairly, free from corruption and nepotism. Corruption has spread its tentacles almost on all the key areas of the State and it is an impediment to the growth of investment and development of the country. If the conduct of administrative authorities is righteous and duties are performed in good faith with the vigilance and awareness that they are public trustees of people?s rights, the issue of lack of accountability would themselves fade into insignificance.
60. To state the ubiquity of corruption, we may refer to the oft-quoted words of Kautilya, which reads as under:-
?Just as it is impossible not to taste the honey or the poison that finds itself at the tip of the tongue, so it is impossible for a government servant not to eat up, at least, a bit of the king?s revenue. Just as ?sh moving under water cannot possibly be found out either as drinking or not drinking water, so government servants employed in the government work cannot be found out (while) taking money (for themselves).
It is possible to mark the movements of birds flying high up in the sky; but not so is it possible to ascertain the movement of government servants of hidden purpose.? [Ref: Kautilya?s Arthasastra by R. Shamasastry, Second Edition, Page 77] As pointed out by Paul H. Douglas in his book on ?Ethics of Government?, ?corruption was rife in British public life till a hundred years ago and in USA till the beginning of this century. Nor can it be claimed that it has been altogether eliminated anywhere.? (Ref: Santhanam Committee Report, 1962: Para 2.3).
61. Tackling corruption is going to be a priority task for the Government. The Government has been making constant efforts to deal with the problem of corruption. However, the constant legislative reforms and strict judicial actions have still not been able to completely uproot the deeply rooted evil of corruption. This is the area where the Government needs to be seen taking unrelenting, stern and uncompromising steps. Leaders should think of introducing good and effective leadership at the helm of affairs; only then benefits of liberalization and various programmes, welfare schemes and CA NO.253 OF 2017 programmes would reach the masses. Lack of awareness and supine attitude of the public has all along been found to be to the advantage of the corrupt. Due to the uncontrolled spread of consumerism and fall in moral values, corruption has taken deep roots in the society. What is needed is a re-awakening and recommitment to the basic values of tradition rooted in ancient and external wisdom. Unless people rise against bribery and corruption, society can never be rid of this disease. The people can collectively put off this evil by resisting corruption by any person, howsoever high he or she may be.?
22. The corruption needs to be dealt with firm hands. Probity in public life and in administrations are hallmark of good governance. If the governance is corruption free, the citizens are assured of justice which is the constitutional vision. Corruption is the biggest enemy for realising the vision of justice as set out in the constitution. Therefore, when there are charges of misuse of public office by public servants, the court is required to be cautious in interfering with the case.
23. Considering the scope of the writ petition and the prayers made therein, it cannot be said that the investigating agency has not carried out fair and impartial investigation particularly when the petitioner along with the other two accused themselves manipulated and fabricated the record. They in order to mislead the investigation and save themselves tried to falsely implicate the Letter Messenger. The time taken by the investigating agency cannot be said to have occasioned, the long and unwarranted delay in completing the investigation inasmuch as the investigation was completed in the year 2015 after examining the voluminous record and several witnesses which was a time consuming process to unearth the truth.
24. The petitioner has failed to place any material on record to demonstrate that the investigation has not being fair and impartial or it is a malicious.
25. The allegation of malafide against the investigating officer are without any basis as there is no material particular given in the writ petition except a bald allegation to say that the investigating officer in connivance with the letter messenger carried out tainted investigation to falsely implicate the petitioner and two other accused. The petitioner was Assistant Engineer at the relevant time and his two accused were Executive Engineer and Accountant who were responsible and in charge of preparing the bills for the consumers. A letter messenger could not have any role in preparation of the bills or fabrication or manipulation of the documents. It is apparent that the petitioner in active conspiracy with two other accused in order to deflect the investigation lodged the FIR against the letter messenger to make him scapegoat for the offence committed by them and deflect the investigation. Time consumed by the investigating agency is not inordinate, in the facts and circumstances of the case. We do not find any merit or substance in the writ petition and, therefore the writ petition is dismissed.
26. The observations made in the forgoing paragraphs are based on the pleadings and submissions advanced on behalf of the parties. These are not findings recorded by the Court on merit of the case. It is for the Trial Court to judge the issue on the basis of the evidence led by the parties on trial of the case. The observations are confined to the writ petition only and will not have any bearing on trial of the case.
Order Date :- 18.12.2017 prateek