Allahabad High Court
Ashok Kumar Yadav & Another vs State Of U.P. & Others on 10 May, 2010
Author: Amar Saran
Bench: Amar Saran
Court No. - 46 Case :- CRIMINAL MISC. WRIT PETITION No. - 6775 of 2010 Petitioner :- Ashok Kumar Yadav & Another Respondent :- State Of U.P. & Others Petitioner Counsel :- Bishram Tiwari Respondent Counsel :- Govt. Advocate Hon'ble Amar Saran,J.
Hon'ble S.C. Chaurasia,J.
1. Heard learned counsel for the petitioners, learned A.G.A. and perused the record.
2. Under challenge is the First Information Report dated 17.04.2010 registered at Case Crime No. 245 of 2010 under Sections 419 and 420 of I.P.C., Police Station - Salempur, District
- Deoria, contained as Annexure No. 1 to the writ petition.
3. The Additional District Magistrate (Finance & Revenue), Deoria lodged the F.I.R. at P.S. Salempur, District-Deoria on 17.04.2010 at 15.10 hours with the allegations that at about 10.45 a.m. he himself along with Sub Divisional Magistrate, Salempur, in the presence of staff and other persons, inspected the Wheat Purchase Centre, Salempur and found that no Banner, Weighing Machine and Weight etc. were installed and there was no arrangement for sitting and drinking water for the farmers. Stock Register, Purchase Register and Bill of Food Grains were checked and the same were found blank. No entry about the purchase of wheat was made in the said record. No compliance of the inspection note dated 06.11.2009 was made. 250 sacks of wheat were being loaded in Truck No. UP 53 J 4139 at the said purchase centre, without any weighing machine, weight/measurement. Sri Ashok Kumar Yadav, Incharge Purchase Centre/Marketing Inspector and Sri Tribhuwan Mani Tripathi posted as Assistant at Purchase Centre, Salempur did not disclose as to when the wheat was purchased and when it was entered in the Stock Register and on what basis it was being loaded in the truck for outside delivery. Thus both the employees were found making delivery of the wheat purchased fictitiously. On the basis of the said F.I.R., the case was registered against both the employees under Sections 419/420 I.P.C., the matter is under investigation.
4. Learned counsel for the petitioners has drawn our attention towards the Government Orders Dated September 5, 1990 and July 19, 2005 and has submitted that the F.I.R. should not have been lodged against the petitioners without conducting departmental inquiry. These Government Orders have been issued in order to regulate the departmental procedure for lodging the F.I.R., but, they cannot override the statutory provisions of Cr.P.C. No provision of Cr.P.C. has been brought to our notice, which requires holding of departmental inquiry prior to the lodging of the F.I.R. Even without conducting departmental inquiry, the F.I.R. can be lodged in accordance with the provisions of Cr.P.C. The F.I.R. in question cannot be quashed on the ground that the instructions given in the said Government Orders have not been followed before lodging the F.I.R.
5. The learned counsel for the petitioners has submitted that the departmental inquiry has been conducted against the petitioners by the Additional Commissioner (Administration), Gorakhpur Division and they have been exonerated from the charges levelled against them and hence, there is no justification for continuance of criminal prosecution against them. In support of his contention, he has placed reliance on the decision of the Hon'ble Supreme Court reported in 1996 SCC (9) 1 - P.S. Rajya Vs. State of Bihar. The petitioners have filed the inquiry report (Annexure No. S.A. (1) along with Supplementary Affidavit).
6. In the case of P.S. Rajya (supra), on completion of the investigation, the charge sheet was filed in the court and the Special Judge took cognizance of the charges levelled against the accused. Simultaneously, a departmental charge sheet containing identical charges was given to the concerned official/accused. The departmental inquiry was conducted by the Central Vigilance Commission and the Central Vigilance Commission, after a detailed inquiry, submitted the report, exonerating the concerned official from all the charges. The report of the Central Vigilance Commission was forwarded for opinion of Union Public Service Commission. The Union Public Service Commission concurred with the conclusion of the Central Vigilance Commission. The report of Union Public Service Commission was accepted by the President and the final orders were passed in favour of the concerned official. In the said background, it was held by the Hon'ble Supreme Court that the criminal proceedings initiated against the concerned official on identical charges cannot be pursued and the impugned criminal proceedings were quashed. Whereas, in the instant case, the matter is still under investigation and it has not concluded so far. Neither the charge sheet has been filed in the Court nor the Court has taken cognizance of the charges levelled against the petitioners. After registration of the F.I.R., the petitioner no. 1 made a representation to the District Magistrate, Deoria for conducting independent inquiry in the matter. The said representation was sent to Regional Food Controller, Gorakhpur. On his request, Commissioner, Gorakhpur Division directed the Additional Commissioner (Administration) to conduct the inquiry in the matter. During the course of inquiry, neither the statement of the informant Additional District Magistrate (Finance & Revenue), Deoria was recorded nor the petitioner no. 1 gave any explanation with regard to loading of 250 sacks of Wheat in Truck No. U.P. 53 J 4139. The truck numbers mentioned in the inquiry report are different than that of the truck number mentioned in the F.I.R. It is also surprising that the Inquiry Officer has also considered the memorandum given by U.P. Food & Supply Non-Gazetted Employees Union, which has no locus standi to interfere in such type of inquiry. The petitioner no. 1 has disputed the facts mentioned in the F.I.R. Disputed questions of facts cannot be adjudicated by this Court in exercise of writ jurisdiction. The petitioners have opportunity to place their defence before the Investigating Officer and he will definitely consider their version at the time of conclusion of the investigation. In any case, such type of inquiry cannot be equated with departmental inquiry, which commences with the service of charge-sheet on the delinquent official.
7. In our view, neither the F.I.R. can be quashed nor any interference can be made in the investigation on the basis of said inquiry report (Annexure No. S.A. (1)). The instant case is distinguishable on facts and hence, the petitioners are not entitled to get any benefit of the decision of the Hon'ble Supreme Court, as referred to above.
8. From the perusal of the F.I.R., it does not seem that it does not disclose the commission of any cognizable offence. Hence, neither the F.I.R. in question can be quashed nor arrest of the petitioners/accused can be stayed during investigation.
9. In view of the aforesaid discussions, we are of the view that this writ petition lacks merit and it is dismissed accordingly. Order Date :- 10.5.2010 Sunil Kr. Gupta