Chattisgarh High Court
Gurjinder Pal Singh vs State Of Chhattisgarh on 23 July, 2021
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 23
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 435 of 2021
Order Reserved on : 20.07.2021
Order Delivered on : 23.07.2021
Gurjinder Pal Singh, S/o Paramjeet Singh Plaha, aged about 51
years, Occupation- Director State Police Academy, Chandkhuri,
Raipur (C.G.)- 492101
---- Petitioner
Versus
1. State of Chhattisgarh, through: PS Anti-Corruption Bureau &
Economic Offences Wing, Raipur (C.G.)
2. The Central Bureau of Investigation, through the Director, Plot
No. 5-B, CGO Complex, Lodhi Road, New Delhi- 110003.
---- Respondents
For Petitioner : Mr. Kishore Bhaduri, Sr. Adv. with Mr. Sabyasachi Bhaduri, Advocate.
For State/Res. No. 1 : Mr. K.T.S. Tulsi, Sr. Advocate with Mr. Amrito Das, Addl. A.G. For Respondent No. 2 : Mr. Ramakant Mishra, Asst. S.G. Hon'ble Shri Justice Narendra Kumar Vyas CAV Order
1. Heard on I.A. No. 01/2021, application for grant of interim relief.
2. Learned counsel for the petitioner submits that petitioner belongs to 1994 batch of IPS and was initially allocated to M.P. Cadre. On bifurcation of State of Madhya Pradesh, he was reallocated to State of Chhattisgarh. The petitioner has completed 25 years of dedicated service. He has been awarded by the Government for his efficient service to the police department. He has worked in extremely hard situation and continuously worked in naxalite infected area, he has also worked as naxal operation. In the year 2007 he was awarded with police medal for Gallantry. In the year 2011, he was awarded with President Police Medal for meritorious service.
Page 2 of 23He has conferred with the prestigious "Digital India Award"
from Government of India for launching of application, which is beneficial for public namely 'Citizen Cop Mobile App' while working as Inspector General of Police, Raipur. He has awarded with various appreciations by his superior authority for professions contribution in VIP security, investigation, naxal operations. Considering his vast experience outstanding and unblemished service record, the petitioner was posted as Inspector General of Police, Anti Corruption Bureau and Economic Offences Wing (for short "ACB/EOW") from 28.02.2019 to 29.06.20219. Thereafter, he was promoted as Additional Director General of Police and working as Director, Anti-Corruption Bureau and Economic Offences Wing from 20.06.2019 to 01.06.2020.
3. The petitioner to substantiate his submission, which will be dealt by this Court in subsequent paragraphs that personal grudge has been developed against the petitioner by competent authorities would submits that as on 12 th February 2015, the petitioner's predecessors conducted raid at multiple locations and headquarter of Nagrik Aapurti Nigam (for short "the NAN") and FIR No. 09/2015 has been registered at Police Station- ACB/EOW, Raipur. In the raid conducted by the ACB/EOW, two diaries were seized in which alleged gratification paid to various functionaries of State, have been mentioned and the diary contained the entries against abbreviation "CM Sir" and "CM Madam", which later became centre of political controversy. Thereafter, a charge-sheet was filed on 5th June, 2015 for committing an offence under Sections 109, 120B, 409, 420 of IPC read with Section 13(1)
(d) & 13(2) of the Prevention of Corruption Act, 1988 (for short "the Act, 1988") against 16 accused persons. The president of political party has requested the Hon'ble Prime Minister describing some of top officers of the State as mastermind of NAN scam and questioned the discretion of the investigating agency in not arresting them despite availability of evidence.
Page 3 of 234. The accused has filed SLP before the Hon'ble Supreme Court and the Hon'ble Supreme Court has given certain directions vide its order dated 23rd August, 2017 and the supplementary charge-sheet has been filed on 05.12.2018 before the learned Special Judge.
5. It is further contended by learned counsel for the petitioner that the trial is pending before the Special Court, Raipur and in view of subsequent assembly election in the year 2018, new Government has taken over charge and on 18.12.2018, Mr. Mukesh Gupta, the then Director General of Police, ACB/EOW, under whom said NAN matter was supervised was transferred and new incumbent Mr. D.M. Awasthi, IPS was posted as Director General of Police, ACB/EOW. On 04.01.2019, the Government of Chhattisgarh in a cabinet meeting decided to constitute a Special Investigation Team (for short "the SIT") on the basis of recommendation made by prime accused of the ongoing trial and against whom non- bailable warrant has been issued. It has been further submitted by learned Senior counsel for the petitioner that many officers were forced to depose against the investigation of the NAN scam to dilute and distort the evidence placed before the learned Special Court with an intent to save the said prime accused and to implicate the former Chief Minister of the State. It has been further contended that officers who were investigating the matter has filed an affidavit on 07.02.2019 before the learned Special Court, Raipur about such forced confession to implicate the officers, who have supervised the investigation of NAN scam and this Hon'ble Court has granted interim protection to them on 15.03.2019. It has been further contended that the investigating officer of NAN scam Mr. Sanjay Devsthle was placed under suspension. On 06.02.2019 and 11.02.2019 at the behest of the SIT, FIR No. 06/2019 and 07/2019, have also been registered against Mr. Mukesh Gupta, the then Director General of Police and Mr. Rajnesh Singh, IPS, SP, ACB/EOW.
Page 4 of 23Constitution of SIT was challenged before this Court by filing WP (PIL) No. 01/2019 and certain observations were made by this Court. The petitioner highlighted the facts to demonstrate that there is bias against him and no fair investigation is being carried out against him by respondent No. 1.
6. The frequent transfer of the officers of ACB & EOW is nothing but it requires interference in the functioning of ACB/EOW in conducting impartial and independent investigation. He would further submit that the prime witness of NAN case has filed WP (Crl.) 224/2020 before the Hon'ble Supreme Court alleging that highly placed accused persons had affected the criminal trial pertaining to multi crore NAN scam and it has been further contended in the writ petition that the State has not only pressuring and rewarding witnesses to turn hostile, but also threatening the petitioner, who despite immense pressure, testified truthfully before the learned Supreme Court. The said WP (Crl.) has disposed of by the Hon'ble Supreme Court thereafter he filed similar WP (Crl.) 182/2021 before this Court for protection from prosecution by the State as it is attempt to save the prime accused. The petitioner having sincerely worked about 7 months in ACB & EOW and was about to finalize the report, the petitioner was called on 14.10.2019 for late night meeting with the Hon'ble Chief Minister's house for review of sensitive case including NAN, wherein he was directed to proceed against the former Chief Minister and his wife on the basis of affidavit of accused Shiv Shankar Bhatt, who has been recently granted bail on 02.08.2020. Shiv Shankar Bhatt was compelled to depose under Section 164 of Cr.P.C. before the learned trial Court and he was again compelled to file an affidavit and to take press conference against former Chief Minister to carry out reinvestigation of NAN case for political mileage.
7. It has been further contended that the respondent authorities wanted the former Chief Minister and his wife to book on the basis of entries in diaries like "CM Sir" and "CM Madam"
Page 5 of 23whereas, as per material available CM Sir means Chinta Mani Chandrakar, who is popular known as CM Sir in the organization.
8. Since, petitioner was failing to act as per wishes of respondent, the petitioner was transferred on 01.06.2020 from ACB & EOW and posted as Director of Police Academy. The respondents to settle their personal grudge, has constituted a five members enquiry committee on 06.11.2020 to enquire about para 6 to 7 of CBI Self Contained Note (SCN) after lapse of 4 years, which has been challenged before the learned Central Administrative Tribunal at Jabalpur and the same is pending consideration.
9. The petitioner further substantiated that the present FIR has been lodged on account of bias against the petitioner and with malafide intention would highlight the manner of recording of Annual Performance Appraisal System for the year 2019-20 and would submit that reviewing authority and accepting authority of both the two APAR was same person i.e office of Hon'ble Chief Minister of Chhattisgarh, who has grade 6 and second part, the grade of 7.9 allocated by the reporting authority was further downgraded to 6. The petitioner preferred a representation on 28.01.2021 before the competent authority, which is still pending.
10. The FIR in connection with Crime No. 22/2021 has been registered against the petitioner under Sections 13(1)(b) and 13(2) of the Act, 1988, but they were not satisfied with harassment to which he is being subjected a raid was conducted on the morning of 01.07.2021, which continued for three days, but nothing substantial and valuable could be seized from the petitioner's possession as evident from seizure memo and Ancillary Raid record, which is also mentioned in the FIR dated 29.06.2021 registered against the petitioner.
11. The petitioner to justify the details of property, which have been mentioned in the FIR would submit that (i) the petitioner Page 6 of 23 has purchased land for consideration of Rs.6,00,000/- in 1999 at Jalvihar Colony, Raipur in the name of his father. This property was purchased by him very long back. (ii) The item 9 & 10, Kripal Singh is a top business man of Raipur and he is not related to the petitioner. It has been further submitted that Income tax raid was conducted on Kripal Singh about six months ago and the Income Tax Authority investigated into property of Kripal Singh four about 6 to 8 months ago and ultimately it has been found that these properties belong to Kripal Singh. There is no iota of benami, therefore, he would submit that report of preliminary enquiry be placed before this Court as well as diary of the case.
12. He would further submit that property mentioned at serial No. 11 to 17 were purchased by Preetpal Singh Chandok after receiving money from G.P. Singh or through his father, brother and sister, but there is no document to substantiate involvement of the petitioner for purchase of property, which shows prima facie that these properties were acquired by Preetpal Singh Chandok with the help of the applicant, but none of the documents was seized from the petitioner. All the documents were seized from Preetpal Singh Chandok, which are in the name of Preetpal Singh Chandok. These properties are of 35 - 40 years old.
13. He would further submit that the legal issue cropped up in this case is that whether the EOW have jurisdiction to blame any Government employee without going into the prima facie evidence or without collecting prima facie evidence. Then, he referred to Section 20 of the Act, 1988 and would submit that "Presumption" would lie in favour of the accused unless it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, therefore, the prosecution must prove that the accused has Page 7 of 23 accepted or obtained or has agreed to accept or obtain, any gift, gratification either for him or for any other person.
14. He would further submit that presumption will not be drawn against his son and would submit that contents of FIR if prima facie, taken its face value then the contents must be proved in the FIR and would submit that he is not seeking quashment of FIR, but he has filed present petition with prayer to get the matter investigated by CBI, NIA or any impartial agency.
15. He would further submit that there are few eye witnesses in his case. One of them is Kripal Singh, others are Mr. Jha and Mr. Khali. Mr. Jha is the Branch Manager, State Bank of India. He also filed a petition contending that he has been tortured by ACB/EOW. If all these things taken together, will it prima facie establish that there is some defect in the investigation moreover, when the State hampers. These things taken together will show the bias attitude of the respondents.
16. He would further submit to substantiate biased against him after filing of the writ petition, few more cases have been registered against him (i) on complaint made by one member belongs to Rajnandgaon, PS Raipur on 13-7-2021. (ii) one case related to suicidal of IPS Officer- Rahul Sharma, who had committed suicide eight years back, who was the then Superintendent of Police, Bilaspur. He committed suicide for some reason or other. There was an investigation by CBI and finally the case was closed by the CBI. Now as per news the respondents are saying that they will reopen the investigation on that issue. (iii) One Girish Sharma (disproportionate property case) now is pressurized to say that those properties are of the petitioner, but it is not part of the record of the present case, thus, there is clear bias against the petitioner. The petitioner is not seeking quashing of the FIR, but seeking transfer of case to CBI as he wants a transparent investigation of the case. He referred to para 25 of the judgment of Hon'ble the Supreme Court in case of State of West Bengal vs. Page 8 of 23 Shivanand Pathak and another, reported in 1998 (5) SCC 513, which is extracted below:-
"25. Bias may be defined as a pre-conceived opinion or a pre-disposition or predetermination to decide a case or an issue in a particular manner, so much so that such pre- disposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the Judge unable to exercise impartially in a particular case. Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject matter in dispute, or policy bias etc. In the instant case, we are not concerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinacy."
17. He would also refer to judgments of Hon'ble the Supreme Court in case of Ramesh Kumari Vs. State (NCT of Delhi), reported in (2006) 2 SCC 677 (para 7 to 9), State of West Bengal and others Vs. Committee for Protection of Democratic Rights, reported in 2010 (3) SCC 571 (para 70), Babubhai Vs. State of Gujarat, reported in (2010) 12 SCC 254 (para 37 to 42 & 45), Disha Vs. State of Gujrat, reported in (2011) 13 SCC 337 (para 24), K.V. Rajendran v. CBCID, reported in (2013) 12 SCC 480 (para 17), Sudipta Lenka Vs. State Of Odisha, reported in 2014 (11) SCC 527 (para 15), Bimal Gurung Vs. Union of India, reported in 2018 (15) SCC 480 (para 29), Param Bir Singh Vs. State of Maharashtra, reported in 2021 SCC OnLine Bom 516 (para 83), P. Sirajuddin Vs. State of Madras, reported in 1970 (1) SCC 595 (para 17), Yashwant Singh Vs. CBI, reported in (2020) 2 SCC 338 (para 108 & 111), Imtiyaz Ahmad Vs. State of U.P., reported in (2012) 2 SCC 688 (para 55), Kapil Agrawal & others Vs. Sanjay Sharma & others, reported in 2021 SCC OnLine SC 154 (para 36 & 37), Kedar Nath Singh Vs. State of Bihar, reported in AIR 1962 SC 955 (para 24 to 26), Balwant Singh Vs. State of Punjab, reported in (1995) 3 SCC 214 (para 8 & 9), Romila Thapar & others Vs. Union of India & others, reported in (2018) 10 SCC 753, Writ Petition Page 9 of 23 (Criminal) No. 106/2021 (Kishorechandra Wangkhemcha & another Vs. Union of India) & Writ Petition (S)(Criminal) No(s). 217/2021 (M/s Aamoda Broadcasting Company Private Limited & another Vs. The State of Andhra Pradesh & others). He would also refer the interim order passed by this Court on 11.06.2021 is case of Dr. Raman Singh Vs. State of Chhattisgarh & others in WPCR No. 323/2021.
18. He would pray that respondent No. 1 be kindly directed to file detail return , till then interim protection be kindly given to him as prima facie petitioner has not committed any offence .He would pray direct the State authority not to investigate the matter, the matter be transferred to CBI for investigation and would submit that the respondent No. 1 be kindly restrained from taking any coercive steps against him. Lastly he would submit that if interim relief is not granted, then the present petition will become infructuous.
19. The State has filed their reply to the application for grant of interim relief. Learned Senior counsel for the State would submit that quashing of complaint or FIR should be an exception and not routine exercise. The Court should exercise its inherent power under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India very rarely and sparingly. The Ld. Senior Counsel would referred the Judgment of Hon'ble Supreme Court in case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp(1) SCC335 and would submit that In this case the entire matters are at pre mature stage, investigation is not yet complete, the evidence has to be gathered after thorough investigation and report is if submitted before the court, on the basis of report alone the Court can come to the conclusion. This court cannot anticipate the result of investigation and render a finding on the question of malafides on the basis of materials available. Therefore, no force in the contention that complainant be Page 10 of 23 made thrown overboard on mere unsubstantiated plea of malafides
20. He would further submit that as per judgment of Hon'ble the Supreme Court in case of P. Chidambaram Vs. Directorate of Enforcement reported in (2019) 9 SCC 24, the Court should stay away till the final report is submitted, statement recorded under Section 161 of Cr.P.C. is not an evidence, only after cross-examination, it becomes evidence. It has been further contended that from the report of crime and final report police has exclusive jurisdiction and interference at this juncture will be miscarriage of justice because entire truth will never come out as still prosecution is in the midst of investigation. He would further submit that FIR is not encyclopedia of the case and would refer to judgment of Hon'ble the Supreme Court in case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra, reported in AIR 2021 SC 1918, (para 12), which is extracted below:-
"12. In a given case, there may be allegations of abuse of process of law by converting a civil dispute into a criminal dispute, only with a view to pressurise the accused. Similarly, in a given case the complaint itself on the face of it can be said to be barred by law. The allegations in the FIR/complaint may not at all disclose the commission of a cognizable offence. In such cases and in exceptional cases with circumspection, the High Court may stay the further investigation. However, at the same time, there may be genuine complaints/FIRs and the police/investigating agency has a statutory obligation/right/duty to enquire into the cognizable offences. Therefore, a balance has to be struck between the rights of the genuine complainants and the FIRs disclosing commission of a cognizable offence and the statutory obligation/duty of the investigating agency to investigate into the cognizable offences on the one hand and those innocent persons against whom the criminal proceedings are initiated which may be in a given case abuse of process of law and the process. However, if the facts are hazy and the investigation has just begun, the High Court would be circumspect in exercising such powers and the High Court must permit the Page 11 of 23 investigating agency to proceed further with the investigation in exercise of its statutory duty under the provisions of the Code. Even in such a case the High Court has to give/assign brief reasons why at this stage the further investigation is required to be stayed. The High Court must appreciate that speedy investigation is the requirement in the criminal administration of justice. "
21. On facts, the learned Senior counsel would submit that during investigation, conduct of the petitioner was less than desired, he refused to give passport, the petitioner has not given DVD Laptop, hard disk and other articles. The petitioner tried to destroy the articles like torn the document and after torn the paper he threw the papers, destroyed the phone, factory restored the phone & tampering. He would further submit that the prosecution has received complaint from complainants that they are under the threat by the petitioner. All the details are in the case diary and a written complaint was also made by them.
22. Learned Senior counsel would submit that from the material collected during initial investigation available in the case diary, they have examined not only the bank account but also the other properties of Rs. 6,41,37,180 has already been verified. He would further submit that from 01.01.96 to 29.01.2021, he has earned Rs. 1.75 crores towards salary, but expenditure comes to Rs. 3.55 crores. Learned Senior counsel for respondent No. 1 would further detail submission with regard to investment, properties, which are as under:-
Properties of Mr. G.P. Singh Investment in mutual funds (total 7 Rs. 68,57,692/- funds) Land and housing properties at Rs. 55,50,000/-
three places Life Insurance Policy Five polices started in 2012 annual Rs. 6,52,450/- Rs. 13049/- premium each, Total upto 29.01.2021 Eight polices in 2013 total paid Rs. 11,52,090/-
Page 12 of 23One in 1995 total paid Rs. 54,729/- One in 2001 total premium paid Rs. 2,12,890/- Seven polices in 2008 total Rs. 18,85,086/- premium paid Total amount through policy Rs. 39,57,245/-
Insurance HUL policy- 8 policies Rs. 35,65,282/- invested in 2017-18 Properties of Paramjeet Singh, who is father of Mr. G.P. Singh land and housing property 3 Rs. 69,31,000/-
properties (assessed properties)
Investment in big commodities suspected
companies.
investment in Equity Fund Rs. 16,14,270/-
repayment of loan Rs. 32,31,325
Total Rs. 48,45,595/-
Properties of Surinder Kaur, who is Mother of Mr. G. P. Singh Agricultural land 1.5 acres Rs. 7,35,000/-
Fish Pond Rs. 5,00,000/-
Plot (amlidih) Rs. 37,20,170/-
House in Labadi Rs. 25,15,000/-
Total Rs. 74,70,170
Investment in 2019-20 Motwani Rs. 12,68,826/-
consultancy
Loan repayment 2016-17 Rs. 36,80,325/-
LIC policy of Bharat, S/o Mr. G.P. Rs. 1,65,302/-
Singh 2016-2017 Equity fund 2016-17 Rs. 54,30,115/-
LIC 32 policies of Bharat, S/o Mr. Rs. 4,61,400/-
G.P. Singh
Total Rs. 1,10,05,968/-
Properties of Bharat S/o of G.P. Singh
Equity Fund 2018-19 Rs. 30,05,000/-
LIC 32 policies Rs. 4,61,439/-
Total Rs. 34,66,439/-
Darbar Singh Kalyan, father-in-law of G.P. Singh- investigation is under progress Properties of Manpreet Kaur, wife of G.P. Singh Gifted from father Mr. D.S. Kalyan Rs. 31,24,000/-
Page 13 of 23 Equity fund 2019-20 Rs. 55,46,000/-
Insurance policy 5 Nos. 2016-17 Rs. 3,53,790/-
Loan 2013-14 Rs. 14,64,000/-
Land in Punjab and house at yet to be assessed Patiala Total Rs. 1,04,87,790/-
Grand Total (Assessed) Rs. 6,41,37,180/-
23. He would further submit that from bare perusal of Section 13 of the Act, 1988, there is a presumption of criminal misconduct of public servant if Government servant during his office has pecuniary resources, disproportionate to his known sources of income, which means income received from legal services. In the present case, the petitioner has disproportionate property more than six times to his income for which he has no explanation. He would further submit that in the present case, the accused is highly qualified and intelligent people having extremely active brain, they are very smart. They have posted funds with various best investments methods like real-estate etc. It is documentary case where no oral evidence can prove the guilt of the petitioner, therefore, investigation requires.
24. Learned Senior counsel for the State would submit that the petitioner wants transparent inquiry and investigation has to be done in accordance with law, as such, he cannot seek copy of documents placed on diary of the case. It is for the Court only to see, as such, transparent as intent by the petitioner cannot be accepted unless the final report is submitted before the Court. He would further submit that the petitioner has stated so many times that he is not here for quashing of the FIR, arguing for transfer to CBI, but from bare perusal of the FIR, it is a case of disproportionate assets as petitioner is in possession of assets in excess of 10 crores that means the gravity of offence is far more. He would further submit that in this case, the entire matters are at pre mature stage, investigation is not yet complete, the evidence has to be gathered after thorough investigation and report is if Page 14 of 23 submitted before the court, on the basis of report alone the Court can come to the conclusion. This court cannot anticipate the result of investigation and render a finding on the question of malafide on the basis of materials available. Therefore, no force in the contention that complainant be made thrown overboard on mere unsubstantiated plea of malafide.
25. He would further submit that for the question of malafide exercise of power only when authorities, acts for unauthorized purposes. In the case FIR is done, investigation is done and it has been found that the assets are in excess of earned to the tune of more than Rs. 10 crores and found in the possession of petitioner or his family members. If so, it cannot be said that it is duty of the State to ignore such scenario. The State has to start the legal process, thus, and the property of 6 crores and 41 Lakhs has already been verified. He would further submit that Court has to see that any person as he has acted on the basis of unauthorized purpose against whom there is allegation of disproportionate assets. If that is so then it is within the duty and doing out duty cannot be termed as unauthorized purpose. Proper test which is to be applied in such case is what is the prominent purpose in part of exercise and part of exercise in this case is only to thorough investigate the case and place the report before the court.
26. He would further submit that accused cannot choose investigation agency. He cannot choose judge, the whole purpose is to discover the truth if it is such that can be clearly established by the documents, why he is insisting to change investigation from ACB/EOW to CBI. He would submit that the petition for change of investigating agency is liable to be dismissed by this Court and the present application for grant of interim relief is also liable to be dismissed by this Hon'ble Court.
27. Learned Asst. Solicitor General- Mr. Ramakant Mishra would submit that no case is made out for the petitioner for transfer of the case from ACB to CBI. However, he will bind with any Page 15 of 23 direction issued by this Court with regard to investigation of the matter.
28. The respondents in pursuance of order of this Court, has submitted diary of the case as well as preliminary enquiry conducted by them for perusal of this Court.
29. With regard to submission of learned Senior counsel for the State, learned counsel for the petitioner would submit that the petitioner has some mutual fund schemes and few LIC policies and some property are of the years 1985-86, when the petitioner was in the School. So far as not cooperating with the investigation, the article 20 of the Constitution of India prohibits the petitioner to say anything against himself. He would further submit that since investigation is being done with malafide and biased, the interference of this Court is necessary to do the justice with the people and he is neither choosing investigation agency, witness nor judge. He would submit that his submission is that a transparent investigation should be conducted, which is his fundamental right granted to him as per Article 21 of the Constitution of India. He would further submit that ACB/EOW has not followed any rule, procedure. Chhattisgarh ACB/EOW only works as domestic parrot.
30. He would further submit that house of the petitioner is made as Camp, nobody can go anywhere, his wife cannot go outside, his brother can also not go outside. He would further submit that he is a person, who belongs to the department and still he has a service career and in view of such submission, he would pray that the respondent be restrained from taking any coercive action against him.
31. I have heard learned Senior counsel for the petitioner Mr. Kishore Bhaduri with Mr. Sabyasachi Bhaduri, Mr. K.T.S. Tulsi, Senior counsel with Mr. Amrito Das, Additional Advocate General for the State/respondent No. 1 & Mr. Ramakant Mishra, Assistant Solicitor General for respondent No. 2 and Page 16 of 23 perused the documents annexed with the petition as well as the case diary submitted by the State with utmost satisfaction.
32. The point to be determined by this Court is whether in the facts and circumstances of the case, pending the writ petition for transfer of the case to CBI, the petitioner is entitled to get any interim protection from this Court or not ?. It is worthwhile to mention here that this Court vide its order dated 20.07.2021 has already admitted this petition. By this application, the prayer of the petitioner for grant of interim relief is being considered.
33. From the perusal of FIR No. 22/2021 dated 29.06.2021 registered before Police Station- Anti Corruption Bureau, Raipur, it is quite clear that the FIR has been registered against the petitioner for committing an offence under Section 13(1)(b) read with Section 13 (2) of the PC Act, 1988 as amended 2018 Act. The relevant portion of the FIR is reproduced below:-
"------------Jh xqjftUnj iky flag] vkbZ-ih-,l- o"kZ 1994 cSp ds gSA lansgh yksd lsod N-x- fuekZ.k ds iwoZ vfoHkkftr e-iz- esa mTtSu] ckyk?kkV ,oa vU; ftyksa esa inLFk jgs gSaA N-x- dSMj dh LFkkiuk ds nkSjku iqfyl v/kh{kd jk;x<+] iqfyl v/kh{kd egkleqan] iqfyl v/kh{kd jktukanxkao] iqfyl v/kh{kd txnyiqj rFkk iqfyl egkfujh{kd ds :i esa vkbZ-th- fcykliqj] vkbZ-th- jk;iqj] vkbZ-th- nqxZ rFkk ,-Mh-th- ds :i esa bvksMCY;w@,lhch jk;iqj ds foHkkx izeq[k jgs gSA orZeku esa jkT; iqfyl izf'k{k.k vdkneh pan[kqjh esa vfrfjDr iqfyl egkfuns'kd@funs'kd ds in ij inLFk gSA lansgh yksd lsod ds }kjk vk; ds Kkr L=ksrksa ls vf/kd vius Lo;a ds ,oa vius ifjokjtuksa ds uke ij py&vpy laifRr;ka Ø; djuk ,oa cM+s cM+s cSad VªkatsD'kuksa ds ek/;e ls jkf'k fuos'k djus dh tkudkjh izkIr gqbZ gSA Jh xqjftUnj iky flag }kjk vius lEiw.kZ lsokdky fnukad 01-01-1996 ls vkt fnukad rd izkIr dh xbZ vk; dk fooj.k fuEukuqlkj gS& vk; dk fooj.k dher 1- 01-01-1996 ls vkt fnukad 29-06- 1]75]00]000@& 2021 rd lEiw.kZ lsokdky esa osru ls vuqekfur vk;
O;; dk fooj.k jkf'k 1- langs h vf/kdkjh ds osru ls nSfud 61]25]000@& fØ;kdykiksa ij dqy vk; dk 35 izfr'kr jkf'k O;; ds :i esa yh xbZ Page 17 of 23 gS& 2- lansgh vf/kdkjh }kjk vius cSad 1]24]06]478@& vdkmaV ds ek/;e ls fd;s x;k fuos'k& 3- vt; VªsOgYl dks Hkqxrku esa O;;& 7]00]000@& 4- fnYyh the [kkuk Dyc dks Hkqxrku& 5]24]980@& 5- cSad ds ek/;e ls jkf'k VªkalQj esa 1]58]24]509@& O;;& ;ksx & 3]55]80]967@&
34. From bare perusal of the FIR, it is crystal clear that FIR has been registered on 29.06.2021 and present writ petition has been filed on 13.07.2021, whereas the investigation has not been completed, as such, it is premature stage of filing of the petition. The investigation is in progress as reflected in foregoing paragraphs of the order passed by this Court. From the facts projected by the petitioner, prima facie, there is no material to show that the FIR has been lodged with intent to protect officer of the Government, who is alleged to have been involved in the NAN case (this Court is not giving any finding on this issue, but to decide the grievances raised by the petitioner that respondent No. 1 is having biased with him or with malafide intention, the FIR has been registered). The petitioner has projected the case of NAN as it has nexus with the disproportionate income earned by the petitioner. Even otherwise, as per Section 13 of the Act, 1988, as amended in the year 2018, it is for the Government Servant to establish that the assets which have been alleged to have been found disproportionate, is proportionate with lawful income of the petitioner. The petitioner can very well rebut the allegations made by respondent No.1 while defending himself before the competent court of law. The apprehension of the petition with regard to bias and malafide, cannot be gathered or prima facie inference from the material placed on record. This can be ascertained only after the filing of return by the State, wherein the allegation made by the petitioner can have thread bearing examination by the Court. Even otherwise, the grant Page 18 of 23 of interim relief "no coercive step" will amount to grant of final relief as the investigation will be stopped and truth will not see the light of the day.
35. The interim order passed by this Court in WPCR No. 323/2021 is distinguishable on the facts of the case, as in the present case, the FIR has been registered against the petitioner under the Act, 1988. The judgment cited by the petitioner with regard to change of investigating agency can be considered when the final return is filed by the State and examination of merit by this Court. The judgment cited by learned senior counsel for the petitioner in case of Param Bir Singh (Supra), is not applicable to the facts of the present case, as in the case of Param Bir Singh (Supra), the direct allegation was made against the Hon'ble Minister of the State, whereas in the present case, there is direct allegation against the petitioner for disproportionate of assets as no faith of citizen in the functioning of the police department is at stake and it has no direct effect on citizen confidence in the police machinery, which would stare at the face.
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 Page 19 of 23 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 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 Page 20 of 23 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 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 Page 21 of 23 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 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.Page 22 of 23
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 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.
38. It is made clear that this Court has considered the submissions made by the parties for the purpose of deciding application for grant interim relief and the same will not adversely affect the right of petitioner to defend himself, case of prosecution or at the time of final hearing of Writ petition or even during investigation of the case or even before trial court in case of submission of final report before Trial Judge.
Page 23 of 2339. All the contentions raised by the parties are left open that may be decided at the time of final hearing.
40. Learned counsel for the State is directed to file return within four weeks.
41. List this case after five weeks.
Sd/-
(Narendra Kumar Vyas) Judge Arun