Allahabad High Court
Mukesh Kumar vs State Of U.P. And 3 Others on 6 March, 2020
Bench: Pritinker Diwaker, Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 26.2.2020 Delivered on 6.3.2020 Criminal Misc. Writ Petition No.1459 of 2020 Mukesh Kumar .... Petitioner Vs 1. State of UP through Principal Secretary, Home, Govt. of UP, at Lucknow. 2. Superintendent of Police, Bulandshaher. 3. SHO/Investigating Officer of present case, P.S. Kotwali, District Bulandshaher. 4. Subhas Ram, Division Commandant Home Guards, Meerut Division, Meerut. .... Respondents ____________________________________________________________ For Petitioner : Sri B N Mishra, Advocate For State-Respondent : Sri Amit Sinha, AGA ___________________________________________________________ Hon'ble Pritinker Diwaker, J.
Hon'ble Shekhar Kumar Yadav, J.
Per: Pritinker Diwaker, J.
Petitioner, who is a District Commandant, Home Guards, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari for quashing the impugned FIR dated 19.1.2020, lodged against him by respondent no.4-Divisional Commandant, Home Guards, Meerut Division, Meerut, under Sections 7 and 13 of the Prevention of Corruption Act, 1988. He has further prayed for issuance of a writ of mandamus, directing the State-Respondents, not to arrest him pursuant to the impugned FIR and that no coercive action be taken against him.
2. Brief facts as narrated in the writ petition and in the documents filed along with writ petition are that the petitioner, who is working as a District Commandant, Home Guards, Bulandshaher, was placed under suspension, vide order dated 19.11.2019 (Annexure No.2).
Allegation against the petitioner is that on three different occasions, i.e. on 9.10.2018, 15.10.2018 and 1.12.2018, he was shown, accepting the bribe amount from the employees for deputing them on their duties. In relation to all these three incidents, video clips were prepared and the same were made viral in the social media on 17.11.2019. Immediately, after coming to know that video clips have been made viral in social media and before placing the petitioner under suspension, two different enquiries were conducted, one by Rajni Upadhyay, Deputy Commandant General, Home Guards and the other by the Divisional Commandant, Home Guards. In these enquiries, the complainants and the petitioner were summoned, their replies were sought and thereafter, prima facie, involvement of the petitioner in accepting the bribe amount has been found. To ascertain the correctness of the video clips, the authorities have also recommended for its forensic examination. Based on these two reports, the petitioner was suspended on 19.11.2019 and then on 19.1.2020, impugned FIR has been lodged against him by respondent no.4 under Sections 7 and 13 of the Prevention of Corruption Act.
3. Learned counsel for the petitioner submits:
(i) that the petitioner is an honest officer; had a clean track record; was never subjected to any enquiry and, therefore, question of accepting bribe amount by him does not arise.
(ii) that the petitioner has been falsely implicated at the instance of a Non-salaries Platoon Commander, namely, Raj Kumar and his wife Smt. Poonam Verma, Salaries Platoon Commander.
(iii) that the FIR is not clearly worded as to what is the allegation against the petitioner and, therefore, the same deserves to be quashed.
(iv) that the FIR has been lodged contrary to the two Government Orders dated 19.7.2005 and 24.5.2012 by which, the Secretaries of all the Departments have been directed, not to directly lodged FIR against the employee till completion of the Departmental Enquiry. He submits that in the petitioner's case, departmental enquiry has not been concluded and, therefore, FIR lodged against him deserves to be quashed.
(v) that by lodging the impugned FIR, fundamental rights of the petitioner, as guaranteed to him under Articles 14 and 21 of the Constitution of India, have been violated.
(vi) that in favour of the petitioner, several employees have given either their statements or affidavits, appreciating the conduct of the petitioner and stating therein that the petitioner is an honest and upright officer and has been falsely implicated.
4. On the other hand, learned State Counsel submits:
(i) that registration of criminal case against the petitioner has nothing to do with the departmental enquiry intiated against him.
(ii) that the Government Circular/Orders merely talk about the illegalities/irregularities committed by an employee, while performing his/her duties and under no circumstance, the said Circular/Orders would be applicable in a case where an employee has been found accepting bribe amount or committing a crime.
(iii) that even otherwise after insertion of Section 17-A of the Prevention of Corruption Act, direct FIR can be registered against the petitioner.
(iv) that the Government Circular/Orders, being executive instructions, do not have any binding effect and they are merely guidelines for the Department.
(v) that once in the video clip, a person has been found accepting the bribe amount, on three different occasions, from the employees, no Circular/Order can stop the authorities from lodging FIR against such person under the relevant Act. If no FIR is registered against such person, he would not have any fear in his mind and would act in a fearless manner.
(vi) that even otherwise, FIR cannot be quashed simply on the ground that a departmental enquiry is to be initiated against the petitioner.
(vii) that once the petitioner cannot claim any relief in the writ petition, he is not entitled for any interim relief seeking protection from this Court that he may not be arrested and that no coercive steps be taken against him.
(viii) that if the petitioner has any apprehension that he would be arrested by the police, he has a remedy of filing anticipatory bail before the competent Court.
5. A bare reading of the FIR would reveal that the same has been lodged against the petitioner because in the video clips, he has been shown accepting the bribe amount. FIR also reveals that before lodging the same, two enquiries were conducted and it is only after seeing the reports dated 18.11.2019, a decision was taken to lodge FIR against him. In lodging any such report, according to us, there is no illegality.
True it is that all the details of the crime committed by the petitioner have not been mentioned in the FIR, but that itself will not create any ground in favour of the petitioner for quashing the FIR, especially when the investigation is at primary stage and further evidence is yet to be collected by the prosecution. It is a well settled principle of law that FIR is not an encyclopedia and minor details are not required to be given in the FIR.
In V K Mishra & Anr. v. State of Uttarakhand & Anr.1, it has been held as under:
"FIR is not meant to be an encyclopedia nor is it expected to contain all the details of the prosecution case.
... ... ...
Unless there are indications of fabrication, prosecution version cannot be doubted, merely on the ground that FIR does not contain the details."
In Latesh alias Dadu Baburao Karlekar v. State of Maharashtra2, it has been held that FIR need not be an encyclopedia of the incident laying out miniscule details and instances of how the crime was committed.
Thus, FIR cannot be quashed on the ground that it is not a detailed one.
6. The other argument of the petitioner that FIR has been lodged in violation of Government Circular/Orders dated 19.7.2005 and 24.5.2012, is also not tenable. Before dealing with this issue, it would be appropriate to reproduce the Government Circular/Orders dated 19.7.2005 and 24.5.2012 and they read as under:
"la[;k 611@dk&1&2005 izs"kd] uhjk ;kno] eq[; lfpo] mRrj izns'k 'kkluA lsok esa] 1& leLr izeq[k lfpo@lfpo] mRrj izns'k 'kkluA 2& leLr foHkkxk/;{k] mRrj izns'kA 3& leLr e.Myk;qDr@ftykf/kdkjh] mRrj izns'kA y[kuÅ %fnukad 19 tqykbZ] 2005 fo"k; %& vf/kdkfj;ksa@deZpkfj;ksa ds fo:} izFke lwpuk fjiksVZ ntZ djk;s tkus ds lEcU/k esaA egksn;] 'kklu ds laKku esa yk;k x;k gS fd fofHkUu izdj.kksa esa foHkkxh; vfu;ferrk,a izdk'k esa vkus ds mijkUr foHkkxh; Lrj ij dk;Zokgh fd;s tkus ds iwoZ gh vfHk;kstu ds lEcU/k esa izFke lwpuk fjiksVZ ntZ djk nh tkrh gS vkSj blls deZpkjh@vf/kdkjh ds fo:} vkijkf/kd izdj.k izkjEHk gks tkrk gS vkSj vuq'kklukRed@foHkkxh; dk;Zokgh izpfyr djuk lEHko ugha gks ikrk gSA rRi'pkr~ izdj.k esa fopkj.k gksus rd] o"kksZ rd deZpkjh@vf/kdkjh dks fuyfEcr j[kuk iMrk gS vkSj nks"keqDr gks tkus dh n'kk esa vuqPNsn&311 esa mls iqu% lsok esa ys fy;k tkrk gSA blls 'kkldh; fgr izHkkfor gksrs gS vkSj foRrh; gkfu gksrh gSA vr% lE;d~ fopkjksijkUr ;g fu.kZ; fy;k tkrk gS fd ;fn fdlh deZpkjh@vf/kdkjh }kjk cjrh dksbZ vfu;ferrk izdk'k esa vkrh gS rks mlds fo:} tkapksijkUr vuq'kklfud@foHkkxh; dk;Zokgh dh tk;sxh vkSj ;fn vuq'kklfud@foHkkxh; dk;Zokgh esa ;g ik;k tkrk gS fd deZpkjh@vf/kdkjh dh dksbZ vkijkf/kd Hkwfedk jgh gS rFkk mlds fo:} izFke lwpuk fjiksVZ ntZ djk;s tkus ij fopkj fd;k tkrk gS vU;Fkk foHkkxh; dk;Zokgh esa tkap vf/kdkjh dh vk[;k ds mijkUr os n.M fn;s tkrs gS tks lEcfU/kr fu;ekoyh esa ifjHkkf"kr gSA vr% vuqjks/k gS fd foHkkxh; dk;Zokgh ds lekiu ds mijkUr vfu;ferrka, ;fn bl izdkj dh gSa fd dksbZ vkijkf/kd d`R; izFke n`"V;k l`ftr izrhr gksrk gS rks ml n'kk esa fu;qfDr izkf/kdkjh bl lEcU/k esa U;k; foHkkx dk er izkIr djds vfHk;kstu dh dk;Zokgh izkjEHk djus dh dk;Zokgh djsaA Hkonh;k] uhjk ;kno eq[; lfpo"
"la[;k 13@2@2012@dk&1&2012 izs"kd] jktho dqekj] izeq[k lfpo] mRrj izns'k 'kkluA lsok esa] 1& leLr izeq[k lfpo@lfpo] mRrj izns'k 'kkluA 2& leLr foHkkxk/;{k@izeq[k dk;kZy;k/;{k] mRrj izns'kA 3& leLr e.Myk;qDr@ftykf/kdkjh] mRrj izns'kA y[kuÅ% fnukad 24 ebZ] 2012 fo"k; %& vf/kdkfj;ksa@deZpkfj;ksa ds fo:} izFke lwpuk fjiksVZ ntZ djk;s tkus ds lEcU/k esaA egksn;] d`i;k vf/kdkfj;ksa@deZpkfj;ksa ds fo:} izFke lwpuk fjiksVZ ntZ djk;s tkus fo"k;d 'kklukns'k la[;k 611@dk&1&2005] fnukad 19&07&2005 ¼lqyHk lanHkZ gsrq izfrfyfi layXu½ dk lUnHkZ xzg.k djus dk d"V djsaA 2&mYys[kuh; gS fd mDr 'kklukns'k fnukad 19&07&2005 }kjk ;g funsZ'k fuxZr fd;s x;s gS fd ;fn fdlh deZpkjh ;k vf/kdkjh }kjk cjrh x;h vfu;ferrk izdk'k esa vkrh gS rks mlds fo:} tkWpksijkUr vuq'kklfud@foHkkxh; dk;Zokgh dh tk;sxh vkSj ;fn vuq'kklfud@foHkkxh; dk;Zokgh esa ;g ik;k tkrk gS fd deZpkjh@vf/kdkjh dh dksbZ vkijkf/kd Hkwfedk jgh gS rFkk mlds fo:} izFke lwpuk fjiksVZ ntZ djk;s tkus ij fopkj fd;k tkrk gS vU;Fkk foHkkxh; dk;Zokgh esa tkap vf/kdkjh dh vk[;k ds mijkUr os n.M fn;s tkrs gS tks lEcfU/kr fu;ekoyh esa ifjHkkf"kr gSA vr% foHkkxh; dk;Zokgh ds lekiu ds mijkUr vfu;ferrka;s ;fn bl izdkj dh gS fd dksbZ vkijkf/kd d`R; izFke n`"V;k l`ftr izrhr gksrk gS rks ml n'kk esa fu;qfDr izkf/kdkjh bl lEcU/k esa U;k; foHkkx dk er izkIr djus vfHk;kstu dh dk;Zokgh izkjEHk djus dh dk;Zokgh djsaA 3&'kklu ds laKku esa yk;k x;k gS fd vf/kdkfj;ksa ,oa deZpkfj;ksa ds fo:} izFke lwpuk fjiksVZ ntZ fd;s tkus ds lEcU/k esa foHkkxksa ¼fo'ks"kdj LVkEi ,oa fuca/ku foHkkx½ }kjk mDr 'kklukns'k fnukad 19&07&2005 es nh x;h O;oLFkkvksa dk ikyu ugha fd;k tk jgk gSA vr,o~ bl lEcU/k esa eq>s ;g dgus dk funsZ'k gqvk gS fd vf/kdkfj;ksa ,oa deZpkfj;ksa ds fo:} izFke lwpuk fjiksVZ ntZ djk;s tkus lEcU/kh izR;sd ekeys esa mifjlUnfHkZr 'kklukns'k fnukad 19&07&2005 esa of.kZr izfdz;k dk dMkbZ ls vuqikyu lqfuf'pr djus dk d"V djsaA layXud% ;Fkksifj Hkonh;] jktho dqekj izeq[k lfpo"
These Government Circular/Orders, which are in the form of executive instructions, merely provide lodging of FIR in the eventuality of some irregularity/illegality comes on surface. Even the object of issuing such Government Circular/Order is entirely different because in the case of irregularity/illegality committed by an employee, according to the Government, it takes sometime to prove a criminal case against the employee and, therefore, it talks about deferring the same. However, two Government Circular/Orders nowhere prevent from lodging of FIR in a case of serious crime committed by an employee. It is not a case where before lodging of FIR, no enquiry has been conducted by the Department. Two different enquiries were conducted by two different senior officers and, prima facie, involvement of the petitioner has been found in the crime in question and then, a decision has been taken to lodge FIR against him. If the Department will not lodge FIR in such cases, it will create anarchy and none of the employees would have any fear of law.
7. Present is a case where the petitioner was found accepting the bribe amount from the employees and, therefore, lodging of FIR is a natural consequence and the petitioner cannot escape from his act in committing the crime. If the petitioner is so innocent, after investigation, police even may not file charge-sheet against him, but if he has committed any such crime, Department is obliged to lodge FIR and the police is at liberty to complete the investigation in accordance with law and to set the law in motion. We are of the considered view that the contention of the petitioner that the aforesaid Government Circular/Orders prohibit the Department to lodge FIR against the petitioner is completely misplaced. Further, it is a settled proposition of law that departmental enquiry and criminal case can go simultaneously. In the present case, though that situation has not come yet, but the Department is at liberty to prosecute the petitioner in accordance with and can also take departmental action against him.
8. We further find no substance in the argument of the petitioner that even otherwise FIR is required to be quashed. Prima facie, cognizable offence is made out against the petitioner and, therefore, the Department is fully justified in lodging FIR against him. So far as the statements of various employees or affidavits given by them in favour of the petitioner are concerned, they are of no help to him at this stage. Obtaining such affidavits is of no consequence at this stage because if charge-sheet is filed against the petitioner, he is required to face the charges and, if the petitioner is so advised, he may use these affidavit/statements at the appropriate stage.
9. We also find no substance in the argument of the petitioner that the police be restrained from arresting the petitioner or from taking any coercive steps against him. Here again, if the petitioner is at fault, he has to face the case in accordance with law and the procedure of criminal law will take place as required. Since the provisions of Anticipatory Bail have already been introduced in this State, if the petitioner is so advised, he may file an appropriate application seeking anticipatory bail or regular bail before the competent Court and it would be for the Court concerned to decide the same in accordance with law.
10. Petition has no substance. The same is, accordingly, dismissed.
Date:6.3.2020 RKK/-
(Shekhar Kumar Yadav, J) (Pritinker Diwaker, J)