Allahabad High Court
Arun Kumar Mishra vs State Of U.P. And Others on 18 December, 2012
Author: Sunil Hali
Bench: Sunil Hali
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved. Court No. - 41 Case :- APPLICATION U/S 482 No. - 39485 of 2012 Petitioner :- Arun Kumar Mishra Respondent :- State Of U.P. And Others Petitioner Counsel :- Alok Ranjan Mishra Respondent Counsel :- Govt. Advocate,A. Kanna Hon'ble Sunil Hali,J.
The short question involved in this application is as to whether the Central Bureau of Investigation (hereinafter referred to as CBI) can investigate the matter in respect of the acts of omission and commission committed by the applicant as a public servant in the State of UP, in respect of which S.I.T. is already investigating the matter.
In order to appreciate the controversy involved in this case certain facts are required to be noted, which are as under:-
Applicant while functioning as Chief Engineer in Uttar Pradesh State Industrial Development Corporation (herein after referred to as UPSIDC) is said to be involved in misusing his official position as a result of which four FIRs have been registered against him.
The first F.I.R. Bearing Case Crime No. 01 of 2007 was registered on 7.9.2007 at P.S. S.I.T. Lucknow against the applicant and others under Sections 420,467,468,471,201 IPC and Section 13(2) read with Section 13(1)(b) of the Prevention of Corruption Act, 1988. Allegations contained in the said FIR are that applicant along with other officials of the UPSIDC allotted land below the prescribed circle rate. The land was allotted @ of Rs. 2700 per sq. meter while the circle rate was Rs. 5000/- and the market value of the said land was in between Rs.12000/- to Rs. 20,000/- per square meter. Recorded minutes of the meeting were also misplaced. The said allotment was not preceded by an advertisement in the paper nor was the same reflected on the web-site of the department. The process was undertaken to confer undue benefit on selective basis. Investigation in the matter is in progress.
The second F.I.R. bearing Case Crime No. 2 of 2007 was registered on 10.9.2007 under Section 409,420,467,468,471 IPC read with Section 120-B IPC and Section 13(2) read with Section 13(1)(c) and Section 13(1)(d) of the Prevention of Corruption Act 1988 against the applicant and others with the allegations that an amount of Rs. 20,36,81,380/- have been released in favour of the Contractor without obtaining return bills by accused persons. The bills were released on the instruction and decisions taken by the applicant.
In the third F.I.R. bearing No. RC 0072011A0003 was registered by CBI, Dehradun, Branch on 21.1.2011 at CBI, SPE, Dehradun Branch under Sections 120-B,420,471 IPC read with Section 468,409, 477A IPC read with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988. In this F.I.R. allegations have been levelled against the officials of the Bank for having allowed opening of the fictitious account and withdrawal of money from the said account. It is averred that the accused persons entered into criminal conspiracy amongst themselves and with some unknown persons in furtherance of the said criminal conspiracy while working as public servant dishonestly and fraudulently made false entries in accounts of PNB, Vidhan Sabha Branch, Dehradun and also allowed deposits and withdrawal from five fictitious accounts maintained in the name of unknown persons at PNB, Arya Van Prastha Ashram Branch, Jwalapur, Haridwar. It is also averred that in furtherance of criminal conspiracy on 25.11.2005 the then Manager of Vidhan Sabha Branch, PNB, Dehradun, dishonestly and fraudulently made false entries and misappropriated an amount of Rs. 72,82,105/- from suspense Account No. 4422005711320 of the Branch and transferred the same to sundry Account Number 4422003171109 of the said branch. He further transferred the same amount to Intersole Account Number 1064003171160 of Arya Van Prastha Ashram Branch, PNB, Jwalapur, Haridwar. From the intersole Account the said amount of Rs. 72,82,105/- was transferred into the five fictitious saving Accounts at PNB, Arya Van Prastha Branch, Jwalapur, Haridwar in the name of non existing persons by the then Branch Manager Sri A. K. Bansal. It is further revealed from the report that besides the above five accounts, more than 66 fictitious accounts were opened and operated within different branches of the PNB by the above accused persons on the basis of the forged/fictitious documents. The total amount of transaction is worth crores. Charge sheet in the matter has been filed before the Special Judge CBI, Anti Corruption, Dehradun against Man Mohan Sharma, Arun Kumar Bansal and the present applicant. Allegations against the present applicant are that in furtherance of the said criminal conspiracy with Man Mohan Sharma, who by misusing his official position as public servant misappropriated/cheated the PNB for an amount of Rs. 72,82,105/- by allowing the applicant to deposit an amount of Rs. 3,32,03,405/- in five fictitious accounts opened at PNB, AVPA, Jwalapur, Haridwar and thus they obtained/allowed illegal pecuniary gain of Rs. 3,32,03,405 and also an interest of Rs. 9,67,687/- accrued on the said principal amount and that the said entire amount was fraudulently and dishonestly withdrawn. Report further indicates that 66 fictitious accounts were also opened and operated within different branches of the PNB by the above accused persons on the basis of the forged documents. It further reveals that the amount deposited is as a result of ill-gotten money obtained by the applicant, which is subject matter of transactions in the said accounts. During search at the residential premises of the applicant document pertaining to various N.G.Os./Companies were recovered. This aspect of the matter is still under investigation and supplementary charge sheet under Section 173(8) Cr.P.C. is under the process of being submitted before the concerned Court after the investigation is over.
Fourth F.I.R. being Case Crime No. 4 of 2011 has been registered against the applicant at SIT Lucknow under Section 13 (1) (e) of P.C. Act, 1988. Allegations contained in the said F.I.R. are that 24 accounts were opened in PNB at Dehradun in which M.M. Sharma, the then Branch Manager has stated that the amounts deposited in the said Bank accounts were provided by the applicant and on the basis of which fictitious accounts were opened in the said Bank. Out of these 24 accounts, 17 accounts were opened at Kanpur Nagar in the State Bank of India Branch.
Applicant has come up before this Court for seeking stay of investigation in F.I.Rs bearing No. RC 0072011A0003 registered by CBI, Dehradun and F.I.R. Bearing No. 4 of 2011. His grievance is that the impugned offence has been committed within the territorial jurisdiction of this Court as is reflected in the FIR No. 1. Allegations contained in FIR No. 1 relates to conferring of undue benefits to some of the allottees as a result of which loss has been caused to the Government exchequer to the tune of Rs. 34.72 crores, which amount is said to have been usurped by the applicant and other officials of the department. This ill-gotten money is said to have been invested by the applicant in the various branches of PNB at Dehradun and Haridwar. Since the source of this amount which is stated to have been deposited in the fictitious account has emanated on account of usurping of funds collected by the applicant in making allotment in the Group Housing Schemes. He further averred that the money which has been deposited in the fictitious account at Dehradun is as a result of his acts of omission and commission committed by him while functioning as Chief Engineer, UPSIDC. Consequence of the investigation initiated in lieu of the FIR No. 1 of 2011 will lead to the tracing of these amounts which has been collected as a result of which SIT would be necessarily examining this aspect of the matter also.
Subsequent FIR lodged by CBI in which charge sheet has been filed would only trench upon the investigation initiated by the SIT at Lucknow.
Powers of the Investigating Officer are void enough to trace the amounts collected by the applicant in the said dealing. He submits that the facts constituting in the FIR No. 1 of 2007 and the area of investigation is same as is being done by the CBI at Dehradun. He further submits that the investigation in the five fictitious entries have been concluded and charge sheet has been submitted therefore, investigation with respect to 66 fictitious accounts is under process and it is likely that by embarking upon such investigation area of jurisdiction sought to be extended by the CBI would cover the facts which resulted in germinating these amounts by the applicant. In essence he submits that CBI is likely to examine the role of the applicant in FIR No. 1 of 2007 thereby allowing two parallel investigations to be conducted in respect of the same offence.
On the other hand counsel for the CBI submits that the FIR lodged at Dehradun is confined in examining the role of bank officials who have allowed these fictitious accounts to be operated, consequently permitting the withdrawal of the said amount from the said fictitious accounts. In the process, the said Bank officials have benefited themselves by usurping the interest which has accrued on the said amounts which was deposited by the applicant. The area of investigation undertaken by the CBI is in the nature of finding out the role of Bank who allowed these fictitious accounts to be operated with actual connivance of the applicant. It is further averred that the applicant has come up before this Court with the apprehension that the investigation in these 66 fictitious accounts would necessarily lead to investigation into manner in which money was collected by the applicant.
Further contention raised by the learned counsel for the respondents is that in essence the applicant wants quashment of the FIR and the charge sheet filed by the CBI before the Special Judge at Dehradun. Even if, it is assumed that applicant has a case, the proper remedy is to file petition before the High Court at Uttaranchal as this Court lacks territorial jurisdiction to try the said case.
Heard learned counsel for the parties and perused the material on record.
This Court is called upon to determine as to whether the FIR lodged by CBI at Dehradun would trench upon the jurisdiction of the SIT Lucknow, who is investigating the role of the applicant in the said FIRs. In order to appreciate this controversy, it is necessary to examine the salient features of the allegations levelled against the applicant in FIR No. 1 registered by SIT Lucknow.
Crux of the allegations against the applicant is that he while functioning as Chief Engineer, UPSIDC along with other officials managed to allot the plots in the Housing Schemes at the rate which was lower than the circle rate fixed for that area. It is further averred therein that minutes of the meeting where the said decision was taken is missing from the office which has been done with connivance of the applicant to avoid detection of the said fraud. The process of allotting these plots must be preceded by advertisement or its posting on the web-site which has not been done as a result of which allotment has been made on selective basis without adhering to the norms of fair play. As a consequence of which loss to the govt. exchequer is to the tune of Rs. 34.72 crores. As a result of this investigation, money has been traced and it is found to have been deposited in the fictitious accounts at Dehradun as well as in Kanpur Nagar in different branches of the Bank. Investigation in the case is under process and the final report has not been submitted till date.
Allegations contained in the FIR lodged at Dehradun relates to deposit of these amounts in fictitious accounts of the Bank. The said amount was deposited with the active connivance of the officials of the Bank which is said to have been done by the applicant and the said amount stands withdrawn from the said account by the said persons. Similarly, sixty six more fictitious accounts have been detected to be fictitious in respect of which investigation is under progress. While construing the import of the two FIRs the following things are visible:-
A) that as a result of his acts of omission and commission in allotting the plots in the Housing Scheme in flagrant violation of the norms and fair play loss has been caused to the exchequer and the resultant beneficiaries being the applicant and other officials of the department;
B) part of this amounts seems to have found its way into fictitious accounts opened allegedly by the applicant in various branches at Dehradun and Kanpur.
Question that calls for consideration is as to whether the facts of the FIR No. 1 of 2007 are similar to the one filed by CBI and whether they constitute same offence or not?
Facts constituting the offence in the FIR No. 1 of 2007 relates to the conduct of the applicant as public servant who has illegally by acts of omission and commission allotted plots in the Housing Schemes in violation of the norms and thereby causing loss to the exchequer. In the said FIRs the role of the applicant as public servant is under scrutiny. Area of investigation primarily is to locate and identify the role of the applicant as public servant. The money, which has been collected as a result of acts of omission and commission, has been deposited in various branches of Banks. Complicity of the applicant in this FIR is restricted to his role as public servant.
The area of investigation is to find out; (a) whether the land has been allotted at a price which is below the circle rate fixed in this behalf; (b) whether any benefit has accrued to the applicant on this account or not; (c) how this money has been utilised and where it has been invested is ancillary to the main offence committed by the officials of the department. It at the best can be a proof to find out how the ill gotten money has been utilized.
In the FIR, in which charge sheet has been filed by the CBI is to find out acts of omission and commission committed by the Bank Officials in permitting these amounts to be deposited in fictitious accounts which is strictly in violation of the Banking regulations. CBI as is revealed from the FIR and as reflected from the charge sheet by itself is not investigating the area where the role of the applicant as public servant is under scrutiny.
The investigation which is under way in other sixty six fictitious account is intended only to detect the acts of omission and commission committed by the Bank officials in connivance with the applicant. Undoubtedly, in case CBI intended to investigate the role of the applicant as public servant it would in my opinion trench upon the process undertaken by the SIT Lucknow, who is already investigating the matter.
From perusal of the report submitted under Section 173 Cr.P.C., limited area of investigation is to find out the manner in which the Bank Officials in active connivance with the applicant opened fictitious accounts. There is no mention in the report that it intends to probe the role of the applicant as public servant. In case it intends to probe the role of the applicant as public servant it would trench upon the investigation under taken by the SIT. As already stated herein above, the money collected as a result of acts of omission and commission of the applicant in the first FIR No. 1 by misusing his official position as public servant relates to his role as public servant, any attempt by the CBI to examine this aspect of the matter cannot be permitted under law as it would constitute parallel investigation with respect to same offence. They need special permission from the State Government to investigate the case in this behalf.
No doubt the amount deposited in the said Bank account is stated to be as a result of pecuniary gain obtained by the applicant as a result of his acts of omission and commission as public servant. In my opinion, argument of the learned counsel for the applicant that CBI in essence is trenching upon the investigation conducted by the SIT in FIR No. 1 of 2007 on the ground that they intend to examine the role of the applicant as public servant in all respect and the manner in which the said amount has been obtained by the applicant is not correct. The main thrust of the investigation is only to examine the role of the Bank Officials in allowing the fictitious accounts opened in the Bank and withdrawal in connivance with the officials. The applicant's role in the FIR filed by the CBI is not to determine in the context of his being public servant of State of U.P. but as a person who has manipulated the opening of fictitious accounts in the Bank.
Other contention raised regarding jurisdiction of this Court to entertain this petition, the argument of the learned counsel for the CBI is to be noted.
On the question of jurisdiction for seeking quashment of the FIR and charge sheet filed before the State of Uttarakhand, there is no dispute that this Court does not have jurisdiction to try the same. However, the applicant was able to demonstrate that the CBI was investigating and trenching upon the jurisdiction of SIT the matter could have been examined in depth. Since, I have already held that two offences are different as such there is no overlapping in this behalf.
Learned counsel for the applicant has relied upon the judgement of Hon'ble Apex Court reported in T.T. Anthony Vs State of Kerala and others, AIR 2001 SC 2637. In this case, Hon'ble Apex Court while dealing with the issue has held that narration of offence as levelled in the FIRs are similar, subsequent FIR lodged was uncalled far. It further went to hold that its recording was irregular and fresh investigation by the Investigating Agency was unwarranted and illegal.
On the other hand learned counsel for the CBI has relied upon the case of Nirmal Singh Kahlon Vs State of Punjab and others reported in 2008 STPL (LE) 40917 SC. The Court while dealing with the issue held that the earlier FIR did not make any allegations as regard existence of conspiracy, the Second FIR did. The canvass of two FIRs is absolutely different. The number of accused in both the FIRs is also different. The second FIR would be maintainable not only because there were different versions but when new discovery is made on factual foundations, the discoveries may be made by the police authorities at a subsequent stage.
In view of above, I find no force in this application. The application is, accordingly, dismissed.
Order Date :- 18.12.2012 RKS/