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2008 DIGILAW 1896 (ALL)

RAM SHANKER VERMA v. STATE OF UTTAR PRADESH

2008-09-08

RAJ MANI CHAUHAN, SUNIL AMBWANI

body2008
JUDGMENT By the Court.—Heard Shri R.K. Ojha assisted by Shri Arun Kumar Tiwari for the petitioner. Learned Standing Counsel appears for the State respondents. 2. The pleadings have been exchanged. With the consent of parties, the writ petition was finally heard. 3. Brief facts giving rise to this writ petition are, that the petitioner was appointed as Naib Tehsildar in the year 1994 and was posted in district Mainpuri in the year 1999. He was incharge Tehsildar from 20.2.2000 to 21.8.2000. A trap was laid by the vigilance team on a complaint to apprehend Dr. Bal Mukund Prabhakar, a Radiologist posted in District Hospital, Mainpuri. It was alleged in the complaint that Dr. Prabhaker was demanding bribe for preparing a false radiological report. The Sub Divisional Magistrate, on the authorisation and orders given by the District Magistrate, Mainpuri dated 29.10.1999, led the trap party alongwith Shri Amit Mishra, Circle Officer (Police); Shri Raghuraj Singh, and Shri Ranveer Singh, Ahalmad, Faujdari Collectorate Mainpuri. 4. The first information report lodged by Shri Hari Pratap Shahi, Sub Divisional Magistrate, Mainpuri stated that the trap party reached the hospital and stopped near the window of the chamber of Dr. Prabhakar. The complainant went to the doctor and demanded the report on which the doctor asked him whether he had brought the money. The complainant gave six notes of Rs. 500/- each to the doctor. As soon as the doctor started preparing the report, the trap party entered in the chamber of Dr. Prabhakar. It is alleged that he tried to swallow the notes, on which the trap party brought him to emergency room to take out the notes from his mouth. Dr. Prabhakar complained of difficulty in breathing, on which he was administered oxygen. At about 2.48 p.m. Dr. Prabhakar died in the emergency. The dead body could be removed after the resistance of the employees of the hospital subsided. 5. On the same day a FIR was lodged as Case Crime No. 1040-A of 2000 as a sequel to the FIR registered as Case Crime No. 1040 of 2000 lodged by Shri Prem Chandra Nigam against Shri Rajveer Singh Malik; Shri Amit Mishra, Circle Officer (City) and Shri Hari Pratap Shahi, Sub Divisional Magistrate (Sadar) reporting to the police, that Dr. P.N. Prabhakar, senior radiologist was beaten up and was killed by strangulation with common intention committing crime under Sections 147, 302, IPC and Section 3 (2)/5 SC/ST Act. The complaint sent to the Chief Minister, U.P. through the Chief Medical Superintendent, District Hospital, Mainpuri enclosed with the report to the police disclosed that when Dr. Bal Mukund Prabhakar, senior radiologist was sitting in his duty room in district hospital Mainpuri, Shri Amit Mishra, Circle Officer (City); Shri Hari Pratap Shahi, Sub Divisional Magistrate and five constables brought a patient and demanded that he should be immediately examined by x-ray. When the doctor asked them to come on the next day, Shri Rajveer Singh Malik and the Circle Officer started beating Dr. Prabhakar. They subjected him to a severe beating and strangulation on which Dr. Prabhakar died. 6. The State Government did not permit Shri Hari Pratap Shahi, Sub Divisional Magistrate, to be prosecuted. However, permission was given to prosecute the Circle Officer and the petitioner Shri Ram Shanker Verma, Naib Tehsildar, present at the time of the incident. 7. The petitioner was granted bail. On 25.5.2006 in a Criminal Misc. Application No. 5821/2006 filed by Shri Ram Shankar Verma son of Shri Vipat Verma against State of UP and Shri Prem Chandra Nigam, the Court has, in exercise of its powers under Section 482, Cr. P.C., stayed further proceedings in the trial. The order reads as follows : “Heard the learned Counsel for the applicant and the learned A.G.A and also perused the materials on record. It is said that even if the entire allegations made in the written report are accepted to be true on its face value and also whatever the statements the witnesses have given under Section 161/Cr.P.C. there is no whispering with regard to the involvement of the accused applicant in case crime No. 1050-A/99 under Sections 147, 304, 120-B, 34 IPC and 3 (11)/5 SC & ST Act at P.S. Kotwali, Mainpuri. Admit. Issue notice. Let counter affidavit be filed within four weeks. List it on 18.7.2006 for hearing. Till that date the proceedings of the case indicated above relating to the accused applicant shall remain stayed. Date. 25.5.06 Sd/- S.S. Kulshrestha, J.” 8. Admit. Issue notice. Let counter affidavit be filed within four weeks. List it on 18.7.2006 for hearing. Till that date the proceedings of the case indicated above relating to the accused applicant shall remain stayed. Date. 25.5.06 Sd/- S.S. Kulshrestha, J.” 8. By this writ petition, the petitioner, charge sheeted by the police in Case Crime No. 1040A/1999 under Sections 147, 304, 120-B, 34, IPC and 3 (11)/5 SC & ST Act at P.S. Kotwali, District Mainpuri, has prayed for a direction to quash the order dated 9.1.2008 passed by the Commissioner and Secretary, Board of Revenue, U.P. Lucknow, by which the petitioner’s representation, in pursuance to the directions of this Court dated 2.4.2007 in Writ Petition No. 1461/2006, Ram Shanker Verma v. State of U.P. and others, for his promotion on the post of Tehsildar, was rejected. The petitioner has further payed for a writ of mandamus commanding the respondents to open the sealed cover envelop for considering his promotion on the post of Tehsildar on adhoc basis, from the date his juniors were promoted i.e. w.e.f. 2.5.2005, with payment of salary and other benefits. 9. By the order dated January 9, 2008, the Commissioner & Secretary, Board of Revenue, U.P. at Lucknow has decided and rejected the petitioner’s representation on the ground that a criminal case under Section 302 is pending against him. He was present at the time of occurrence and that the Board of Revenue has given permission on 30.4.2001 to prosecute him. The State Government has rejected his application for recalling the sanction on the ground that he was present at the time of incident. The State Government had passed a reasoned order in rejecting the application on 22.11.2005 to recall the sanction. The petitioner has been charge-sheeted by the Crime Branch of the Criminal Investigation Department. The charge-sheet has been submitted in the Court of Chief Judicial Magistrate, Mainpuri on 8.2.2006. The second application of the petitioner to recall the order of sanction was also rejected by the Board of Revenue on 31.8.2006. In the circumstances, the Board of Revenue did not think it appropriate to open the sealed cover in the matter of his promotion. By the Government Order dated 28.5.1997 the petitioner was not found suitable for adhoc promotion. The recommendations with regard to his promotions have been kept in sealed cover. In the circumstances, the Board of Revenue did not think it appropriate to open the sealed cover in the matter of his promotion. By the Government Order dated 28.5.1997 the petitioner was not found suitable for adhoc promotion. The recommendations with regard to his promotions have been kept in sealed cover. The Board of Revenue did not find any justification to open the sealed cover, and has rejected the application. 10. Shri R.K. Ojha, learned Counsel for the petitioner submits that the petitioner was present at the time of occurrence on the directions of the District Magistrate as a witness to the trap laid by the vigilance party. He is not named in the FIR and has been falsely made an accused in the crime. There is no allegation against him nor any material was collected implicating the petitioner with the incident in which Dr. P.M. Prabhakar died. It is submitted that the State Government is discriminating the petitioner as against the Sub Divisional Magistrate for whom no sanction was given for prosecution and further that in similar circumstances the sealed cover envelop of promoting Shri Amit Mishra, Deputy Superintendent of Police was opened and that he has been given promotion from the post of Circle Officer to Deputy Superintendent of Police. Shri R.K. Ojha submits that the petitioner has been made a victim of circumstances and has been given unfair treatment. He submits that the petitioner has also been discriminated as against Shri Amit Mishra, the then Circle Officer, who was a member of the trap party. 11. Learned Standing Counsel would submit that the petitioner is an accused in a crime under Section 302, IPC. This Court ought not to have stayed the proceedings of the criminal trial, and that the petitioner, having himself got the trial stayed, cannot plead that he may be promoted. The petitioner should have allowed the trial to proceed, to prove his innocence. Dr. Prabhakar died in unusual circumstances and that the evidence in the trial may establish the wrong doings and excessive force used by the trap party including the petitioner due to which the doctor died. The State Government considered the circumstances and has granted sanction for petitioner’s prosecution. The Government thereafter followed the established principles of keeping the consideration for promotion alongwith his batch under the sealed cover. The State Government considered the circumstances and has granted sanction for petitioner’s prosecution. The Government thereafter followed the established principles of keeping the consideration for promotion alongwith his batch under the sealed cover. The Departmental Promotion Committee did not find the petitioner suitable for promotion on adhoc basis. The recommendations kept in sealed cover under the Government Order dated 28.5.1997 will be opened, only if the petitioner is acquitted by the competent Court and in that case he may be considered for promotion and his pay may be fixed in accordance with the procedures laid down by the State Government. 12. The petitioner has not challenged the adoption of sealed cover procedure in his promotion. He is relying upon the stay order granted by this Court; and the circumstances in which the petitioner cannot be said to have committed any crime, and the unfair and discriminatory treatment to the petitioner as against Shri Hari Pratap Sahi, Sub Divisional Magistrate and Shri Amit Misra, Circle Officer. 13. We have perused the records and the submissions made by the Counsels for the parties. It is not denied that the petitioner was present at the time of occurrence of incident, which led to the death of Dr. Prabhakar. The case was investigated and that the police found that the petitioner had a role to play in the crime in which a doctor died in unusual circumstances. It is difficult to believe that a Government doctor will swallow the currency notes, which were alleged to have been offered to him as a bribe. There was immediate medical help available to the doctor. The postmortem report, giving cause of death and other injuries, is not on record. 14. We further find that if the petitioner was only a witness and had no role to play, in the circumstances in which the doctor died, he should be the last person to get the trial stayed. Ordinarily the trials in such cases are not stayed. 15. We are not concerned here with the case of Shri Hari Pratap Sahi, Sub Divisional Magistrate, Mainpuri and Shri Amit Mishra. They have not been impleaded to the writ petition to examine their cases. The order passed by the State Government refusing sanction to prosecute Shri Hari Pratap Sahi has not been placed before us. 15. We are not concerned here with the case of Shri Hari Pratap Sahi, Sub Divisional Magistrate, Mainpuri and Shri Amit Mishra. They have not been impleaded to the writ petition to examine their cases. The order passed by the State Government refusing sanction to prosecute Shri Hari Pratap Sahi has not been placed before us. We are also not aware the circumstances in which Shri Amit Mishra, Circle Officer was allowed to be promoted. In these matters each case has to be examined on its own merits. It is sufficient to state here that in the case of petitioner the State Government granted permission to prosecute him on 30.4.2001 and that his applications to recall the order have been rejected by the State Government on 22.11.2005 and thereafter again on 31.8.2006. In the circumstances, we do not find that the State Government committed any error of law in adopting sealed cover method in the matter of consideration of petitioner’s promotion to the post of Tehsildar, and do not find any good ground, at this stage, to direct the respondents to open the sealed cover and to consider the recommendation made by the Departmental Promotion Committee in respect of the petitioner’s promotion. 16. Learned Counsel for the petitioner has failed to give an explanation as to why the petitioner approached the Court to get the trial stayed. If he is innocent, it was open to him to face the trial and to get himself acquitted. He has chosen to get the trial stayed and to get an adjudication from the High Court. Having exercised the option, it is not open to him to take advantage of the stay order and get the benefit of promotion. 17. The writ petition is dismissed. ————