Chattisgarh High Court
Gurjinder Pal Singh (Presently Under ... vs State Of Chhattisgarh on 26 November, 2021
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 16/11/2021
Judgment Delivered on : 26/11/2021
CRMP No. 1153 of 2021
Gurjinder Pal Singh (Presently Under Suspension) S/o
Paramjeet Singh Plaha, Aged About 51 Years Occupation -
Director State Police Academy, Chandkhuri, Raipur,
Chhattisgarh 492101.
---- Petitioner
Versus
1. State Of Chhattisgarh, Through The Chief Secretary, Home
Department, Atal Nagar, Raipur Chhattisgarh 492001.
2. Director General of Police, Police Head Quarter, Naya Raipur,
District - Raipur Chhattisgarh 492001
3. Deputy Inspector General of Police, Economic Offense Wing
And Anti Corruption Bureau Chhattisgarh, Jai Jawan Petrol
Pump, Telibandha Raipur, District - Raipur Chhattisgarh.
492001.
4. Superintendent of Police, Economic Offense Wing,
Chhattisgarh, Jai Jawan Petrol Pump, Telibandha Raipur,
District - Raipur Chhattisgarh 492001.
5. Station House Officer, Police Station - Economic Offence
Wing, Raipur, Chhattisgarh.
---- Respondents
For Petitioner : Mr. K. Raghava Charyul, Sr. Advocate assisted by Mr. Ashutosh Pandey and Mr. Himanshu Sinha, Advocates.
For Respondents : Mr. Amrito Das, Additional Advocate General.
Hon'ble Smt Justice Rajani Dubey CAV ORDER 2
1. The matter is taken up for hearing on I.A.No.01/2021, for grant of interim relief.
2. The petitioner, in this application, prayed for restraining the respondents not to proceed further in respect of impugned FIR bearing Crime No.22/2021 for the offence punishable under Section 13 (1) (b) and 13 (2) of the Prevention of Corruption Act, 1988 (for short 'the P.C. Act, 1988') as amended in 2018, registered at Police Station - EOW/ACB, Raipur, on 29.06.2021, and also seeks direction against respondents not to take any further steps against the petitioner in pursuance to the registration of FIR.
3. Learned counsel for the petitioner submits that the petitioner has filed this petition under Section 482 of the Criminal Procedure Code, 1973 (for short 'the Cr.PC') for quashing the impugned FIR registered against him. The Petitioner is 1994 batch IPS officer and was initially allotted the Madhya Pradesh cadre. After carving out the State of Chhattisgarh, he was re-allocated the Chhattisgarh Cadre. The Petitioner, in his 25 years of dedicated service, has been conferred with many awards by the Government. He has worked for almost a decade in extremely hard situations and continuously worked in naxal affected area. In the year 2007, the Petitioner was awarded 'Police Medal for Gallantry' for his action against the Maoists beyond the call of his duties and in the year 2011 he was awarded President's Police Medal for meritorious service for his outstanding professional performance. In the year 2015, he was awarded Smart Policing award by Federation of Indian Chamber of Commerce and Industry (FICCI), New Delhi. In the year 2016, he was further conferred with the prestigious Digital India Award (Platinum Category) by the Government of India for his stellar work in launching citizen centric as IG of Raipur and Durg Range. Further, in 2016, he was again awarded with the Digital Trailblazers (India Today & HP Conclave) Award in a conclave organized at Raipur. Learned counsel further submits that during the course of his excellent career, he has been awarded various commendations and appreciations for professional contribution in VIP Security, Investigation, Naxal operations, welfare of his men etc. besides being always graded as outstanding officer by his superiors.
34. Learned counsel also submits that in view of his vast experience, outstanding and unblemished service record, the Petitioner was posted as the Inspector General of Police, Anti- Corruption Bureau & Economic Offences Wing (ACB/EOW) from 28.02.2019 to 19.06.2019. Thereafter, he was promoted to the post of Additional Director General of Police and served as Director, ACB/EOW from 20.06.2019 to 01.06.2020. During this tenure, the petitioner handled various high profile and sensitive investigations with full dedication, diligence and in the utmost dispassionate manner, but despite this, on 01.06.2020, he was abruptly transferred to the post of Director, State Police Academy. This transfer of the Petitioner was affected due to the ill feelings nurtured against him by some top functionaries in the Government i.e. the respondents as the petitioner had not followed their illegal and wrongful instructions in certain crucial cases before him while heading the ACB/EOW and competent authority started harassing the petitioner in all possible way. It is also submitted by learned counsel for the petitioner that the competent authority developed a personal vendetta/grudge against the petitioner. Since, the petitioner was failing to act as per wishes of respondents, the present FIR has been lodged on account of bias against the petitioner with malafide intention. The petitioner has filed this petition to quash the impugned FIR bearing Crime No.22/2021 registered under Sections 13(1)(b) and 13(2) of the P.C. Act, 1988, at Police Station EOW/ACB, Raipur. It is next submitted that the petition for quashing FIR being as an exceptional and rarest of rate case as was held by the Hon'ble Supreme Court in CBI V. Thommandru Hannah Vijayalakshmi and another in Cr. Appeal No.1045/2021. Further submission of learned counsel is that Section 17-A of the P.C. (Amendment) Act, 2018, provides for a safeguard to the bureaucrat like the petitioner against the frivolous and ill-intent complaints and being a statutory safeguard, the respondents cannot proceed further without compliance of the same and the registration of this FIR against the petitioner and investigation thereon is in violation of the statutory safeguard provided to civil servant and, thus, continuance of the same is detrimental to the interest of the petitioner. It is also argued by learned Sr. Advocate that if the respondents are allowed to continue with the investigation on the basis of an illegal FIR, the 4 petitioner would suffer irreparable loss. Therefore, the respondents authorities may kindly be restrained not to proceed further in respect of impugned FIR and they may further be directed not to take any further step against the petitioner in pursuance to the impugned FIR. In support of his submission, learned Sr. Advocate placed reliance on the decision of Hon'ble Supreme Court in the matter of Joginder Kumar V. State of U.P. and Others1, Sanjay Kumar Rai V. State of Uttar Pradesh and Anr. (Cr.A. No.472/2021 arising out of Speacial Leave Petition (Cri.) No. 10157/2019) and decision of this High Court in the matter of Ashok Chaturvedi V. State of C.G. and Others (Writ Petition (Cr.) No.273/2020).
5. On the other hand, Mr. Amrito Das, learned Additional Advocate General for the State/respondents opposing the interlocutory application (I.A.No.01/2021) submits that quashing of complaint or FIR should be an exception and not routine exercise. In this case, the entire matters are at premature stage, investigation has not yet been completed, the evidence has to be collected and gathered after thorough, this Court should not anticipate the result of investigation. Learned State counsel further submits that the search and seizure conducted by the investigation authority i.e. Anti Corruption Bureau/Economic Offence Wing have been carried out on the basis of source information and after the initial satisfaction about the veracity of the information, the crime has been registered and the petitioner shall be required to tender his due explanation to the material so collected, at an appropriate stage. Both, the registration of an offence as well as search and seizure, have been carried out by the investigating agency in a strict compliance of the statutory provisions and judicial precedent on the subject. It is also submitted by learned State counsel that earlier the petitioner had preferred a writ petition W.P.(Cr.) No.435/2021 seeking transfer of the investigation from EOW/ACB to C.B.I.. The said writ petition was heard on interim/stay application by this Hon'ble Court and, vide order dated 23.07.2021, the same stood rejected. Being aggrieved by the said order of this High Court, the Petitioner had preferred SLP (Criminal) No.5476/2021, which was also rejected by Hon'ble the Supreme Court vide its 1 (1994) 4 SCC 260 5 order dated 01.10.2021. The grounds raised by the petitioner in SLP before the Hon'ble Supreme Court were identical to that of the grounds raised in the instant petition. It is also submitted that the Hon'ble Supreme Court in categorical terms has held that the petitioner is not entitled for any interim relief as has been prayed by him. Learned State counsel submits that on 10.11.2021 the petitioner withdrew the Writ Petition (Cri.) No.435/2021 and filed the instant petition. The investigation is already underway and whole effort by the petition by way of raising the issued, which were already raised by him in W.P.(Cr.) No.435/2021 is nothing but to distract the entire investigation and to protract the same. The petitioner, in previous round of litigation, raised certain grounds but deliberately gave up raising the issue pertaining to Section 17-A of the P.C. Act. It is only after the SLP was rejected by Hon'ble the Supreme Court and the petitioner was declined to grant any of the interim order, the petitioner had preferred the instant petition raising the issue of Section 17-A of the P.C. Act, which he deliberately avoided in the initial round of litigation. The investigating agency had sent several notices to the petitioner and requested him to appear before it and assist in scrutiny of the seized material but the petitioner did not turn up and did not assist and co-operate in the ongoing investigation. Till date the petitioner has neither replied, nor submitted any response to the notices. The petitioner is simply avoiding investigation and has rendered no assistance/co-operation in the same. Learned State counsel also contended that as on date, the investigation demonstrate that the petitioner has amassed assets worth more than 23 crore, which is far beyond the legally admissible income. Thus, considering the overall act of the petitioner, application for grant of interim relief may kindly be rejected. In support of his submission, learned Additional Advocate General has placed reliance on the decisions of High Court of Delhi at New Delhi in the matter of Devender Kumar V. Central Bureau of Investigation and Others reported in 2019 SCC OnLine Del 6482, High Court of Chhattisgarh at Bilaspur in the matter of Satish Pandey V. Union of India and others reported in 2020 SCC Online Chh 1612, High Court of Kerala at Ernakulam in the matter of T.O. Sooraj V. State of Kerala and Another reported in 2021 SCC OnLine Ker 2896 and High Court of Madras in the matter of All 6 India Private Schools Legal Protection Society V. Chief Secretary and Others reported in 2020 SCC Online Mad 20592.
6. I have heard learned counsel for the parties and have carefully gone through the material available on record.
7. This Court finds from the record that the petitioner had moved Writ Petition (Cr.) No.435/2021, which was later withdrawn by him after rejecting interim relief vide detailed order dated 23.07.2021 of co-ordinate Bench and SLP by Hon'ble the Supreme Court. The petitioner has moved the instant CRMP on identical grounds except one i.e. Section 17-A of the P.C. Act. The co- ordinate Bench of this Court, relying on the decision of Hon'ble Supreme Court in the in matter of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra, reported in AIR 2021 SC 1918, held in paras 36 and 37, which read as under :-
"36. So far as interim relief is concerned, the investigation is in progress and the record would demonstrate that Rs. 6.41 crore disproportionate income has already been identified by the State, the Hon'ble Supreme Court in Neeharika Infrastructure (Supra) has issued certain guidelines for granting interim protection while hearing petition under Article 226 of the Constitution of India or Section 482 of Cr.P.C. The Hon'ble Supreme Court has held in para 15 to 18, which read as under:-
"15. As observed hereinabove, there may be some cases where the initiation of criminal proceedings may be an abuse of process of law. In such cases, and only in exceptional cases and where it is found that non interference would result into miscarriage of justice, the High Court, in exercise of its inherent powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India, may quash the FIR/complaint/criminal proceedings and even may stay the further investigation. However, the High Court should be slow in interfering the criminal proceedings at the initial stage, i.e., quashing petition filed immediately after lodging the FIR/complaint and no sufficient time is given to the police to investigate into the allegations of the FIR/complaint, which is the statutory right/duty of the police under the provisions of the Code of Criminal Procedure. There is no denial of the fact that power 7 under Section 482 Cr.P.C. is very wide, but as observed by this Court in catena of decisions, referred to hereinabove, conferment of wide power requires the court to be more cautious and it casts an onerous and more diligent duty on the court. Therefore, in exceptional cases, when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts.
16. We have come across many orders passed by the High Courts passing interim orders of stay of arrest and/or "no coercive steps to be taken against the accused" in the quashing proceedings under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India with assigning any reasons. We have also come across number of orders passed by the High Courts, while dismissing the quashing petitions, of not to arrest the accused during the investigation or till the chargesheet/final report under Section 173 Cr.P.C is filed. As observed hereinabove, it is the statutory right and even the duty of the police to investigate into the cognizable offence and collect the evidence during the course of investigation. There may be requirement of a custodial investigation for which the accused is required to be in police custody (popularly known as remand). Therefore, passing such type of blanket interim orders without assigning reasons, of not to arrest and/or "no coercive steps" would hamper the investigation and may affect the statutory right/duty of the police to investigate the cognizable offence conferred under the provisions of the Cr.P.C. Therefore, such a blanket order is not justified at all. The order of the High Court must disclose reasons why it has passed an ad-interim direction during the pendency of the proceedings under Section 482 Cr.P.C. Such reasons, however brief must disclose an application of mind.
The aforesaid is required to be considered from another angle also. Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the Rule of Law. Where the investigation is stayed for a long time, even if the stay is ultimately vacated, the subsequent investigation may not be very fruitful for the simple reason that the evidence may no longer be available. Therefore, in case, the accused named in the FIR/complaint apprehends his arrest, he has a remedy to apply for anticipatory bail under 8 Section 438 Cr.P.C. and on the conditions of grant of anticipatory bail under Section 438 Cr.P.C being satisfied, he may be released on anticipatory bail by the competent court. Therefore, it cannot be said that the accused is remediless. It cannot be disputed that the anticipatory bail under Section 438 Cr.P.C. can be granted on the conditions prescribed under Section 438 Cr.P.C. are satisfied. At the same time, it is to be noted that arrest is not a must whenever an FIR of a cognizable offence is lodged. Still in case a person is apprehending his arrest in connection with an FIR disclosing cognizable offence, as observed hereinabove, he has a remedy to apply for anticipatory bail under Section 438 Cr.P.C. As observed by this Court in the case of Hema Mishra v. State of Uttar Pradesh, (2014) 4 SCC 453, though the High Courts have very wide powers under Article 226, the powers under Article 226 of the Constitution of India are to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of the accused persons. It is further observed that in entertaining such a petition under Article 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 Cr.P.C. proceedings. It is further observed that on the other hand whenever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its powers under Article 226 of the Constitution of India, keeping in mind that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified. However, such a blanket interim order of not to arrest or "no coercive steps"
cannot be passed mechanically and in a routine manner.
17. So far as the order of not to arrest and/or "no coercive steps" till the final report/chargesheet is filed and/or during the course of investigation or not to arrest till the investigation is completed, passed while dismissing the quashing petitions under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and having opined that no case is made out to quash the FIR/complaint is concerned, the same is wholly impermissible.
18. This Court in the case of Habib Abdullah Jeelani (supra), as such, deprecated such practice/orders 9 passed by the High Courts, directing police not to arrest, even while declining to interfere with the quashing petition in exercise of powers under Section 482 Cr.P.C. In the aforesaid case before this Court, the High Court dismissed the petition filed under Section 482 Cr.P.C. for quashing the FIR. However, while dismissing the quashing petition, the High Court directed the police not to arrest the petitioners during the pendency of the investigation. While setting aside such order, it is observed by this Court that such direction amounts to an order under Section 438 Cr.P.C., albeit without satisfaction of the conditions of the said provision and the same is legally unacceptable. In the aforesaid decision, it is specifically observed and held by this Court that "it is absolutely inconceivable and unthinkable to pass an order directing the police not to arrest till the investigation is completed while declining to interfere or expressing opinion that it is not appropriate to stay the investigation". It is further observed that this kind of order is really inappropriate and unseemly and it has no sanction in law. It is further observed that the courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is further observed that it is the obligation of the court to keep such unprincipled and unethical litigants at bay. In the aforesaid decision, this Court has further deprecated the orders passed by the High Courts, while dismissing the applications under Section 482 Cr.P.C. to the effect that if the petitioner-accused surrenders before the trial Magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the Magistrate concerned. It is observed that such orders are de hors the powers conferred under Section 438 Cr.P.C. That thereafter, this Court in paragraph 25 has observed as under:
25. Having reminded the same, presently we can only say that the types of orders like the present one, are totally unsustainable, for it is contrary to the aforesaid settled principles and judicial precedents. It is intellectual truancy to avoid the precedents and issue directions which are not in consonance with law. It is the duty of a Judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mid that 10 the culture of adjudication is stabilised when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind."
37. It is pertinent to mention here that the petitioner has not filed bail application under Section 438 of Cr.P.C.
for grant of anticipatory bail, therefore, grant of any protection would override the provisions of Section 438 of Cr.P.C. as such, considering the overall material placed before this Court, diary of the case, I am of the considered opinion that the petitioner is not entitled to get any interim relief as prayed for by the petitioner and the interim application is liable to be dismissed. Accordingly, the same is dismissed.
8. Against the said order of co-ordinate Bench of this Court, the petitioner had moved Petition for Special Leave to Appeal (Cri.) No.5476/2021, which was also dismissed by Hon'ble the Supreme Court on 01.10.2021. The Hon'ble Supreme Court, while dismissing the SLP, made similar observation as has been made by co- ordinate Bench of this Court, which read as under:-
"So far as the case relating to Special Leave Petition (Cri.) No.5477/2021 is concerned, we are not inclined to interfere with the impugned order passed by the High Court, to the extent it declines protection against arrest. The High Court in its impugned order had observed in para 37 that the petitioner has not filed bail application under Section 438 of the Code of Criminal Procedure, 1973 and, therefore, he is not entitled to get any interim relief as prayed for by him."
9. As communicated by the learned Addl. Advocate General in his reply to the interim application that the petitioner neither appear before the investigating agency nor replied to any notice or letter issued by it and not co-operated with the investigating agency, which shows that the petitioner is running from pillar to post with ill-intent. The material on record goes to show that the Investigation has not yet been completed and it also demonstrates that Rs.23,00,00,000/- (Rs. Twenty Three Crore) above disproportionate income has already been identified by the State. After dismissal of SLP (Cri.) No.5476/2021 and vacating interim protection granted to the petitioner on 26.08.2021 in Special leave Petition (Cri.) No. 5477/2021, the petitioner withdrew his previous petition i.e. Writ Petition (Cri.) No.435/2021 and filed the instant petition, which is on the identical grounds except one i.e. Section 17-A of the P.C. Act. So far as Section 17-A of the P.C. Act is 11 concerned, this Court does not find any ground where interim relief can be extended to the petitioner.
10. In the light of Niharika (Supra) and the order dated 23.07.2021 of co-ordinate Bench of this Court in Writ Petition (Cri.) No.435/2021, I am of the considered opinion that the petitioner is not entitled to get any interim relief as prayed for.
11. Accordingly, I.A.No.01/2021, for grant of interim relief stands rejected.
12. All the contentions raised by the parties are left open which may be decided at the time of final hearing.
13. Learned State counsel is directed to file return within four weeks.
List this case after five weeks.
Sd/-
(Rajani Dubey) Judge pekde