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2011 DIGILAW 640 (ALL)

Pragyesh Mishra v. State of U. P.

2011-03-14

SHRI NARAYAN SHUKLA

body2011
Shri Narayan Shukla, J.;- Heard Mr.Kunwar Mridul Rakesh, learned Senior Advocate assisted by Mr.Rahul Shukla, learned counsel for the petitioner and Mr.Rajendra Kumar Dwivedi, learned Additional Government Advocate of the State. 2. The petitioner has challenged the proceedings of case No.12 of 2010, arising out of charge sheet No.4/10 dated 16.6.2010, submitted in pursuance to the First Information Report, registered as Case Crime No.744 of 2009, Police Station Hazratganj, Lucknow, pending before the court of Special Judge (P.C.Act), Lucknow as well as the order dated 15th of February, 2011, passed therein taking cognizance and issuing summons to the petitioner for trial. 3. Briefly, the case as set out by the petitioner is that the present case has arisen out of charge sheet submitted by the Vigilance Department regarding disproportionate assets of the petitioner, while the same subject matter has been examined by the State Government twice and since nothing was found, the government closed the inquiry. Now it is the third time the inquiry has been done for the same subject matter, just to humiliate and harass the petitioner, which establishes the malicious action of the government against the petitioner as well as the abuse of process of court. 4. Without entering into any factual dispute, the learned counsel for the petitioner, at a glance, submitted that there are some properties, which have been taken as Benami transactions of his father and those are the subject matter of inquiry of his father, which are as under:- a) Residential Plot No.1/19, Vishwas Khand, Gomti Nagar, Lucknow. b) Agricultural land situated in Village and Tehsil Mehrauli, New Delhi. c) Mango Orchard in Village-Jamal Nagar, Tehsil Malihabad, district Lucknow. d) Agricultural land situated at Village-Pursaini, Tehsil Mohanlalganj, district Lucknow. e) Shops in Akbar Beerbal Complex, Gomti Nagar, Lucknow. 5. Secondly, the property of the petitioner's wife, which has been acknowledged as her individual property as well as the income earned by her since before her marriage through her own source, have also been considered as petitioner's income, whereas the Income Tax Department has already analyzed the same and the proceeding of the Income Tax Department has also been terminated in her favour. The Vigilance inquiry reveals that since she failed to explain regarding the income earned by her, the same has been included in the income of the petitioner. The Vigilance inquiry reveals that since she failed to explain regarding the income earned by her, the same has been included in the income of the petitioner. However, if it is so, only she can be held liable for action which is required in accordance with law, not the petitioner. 6. Thirdly, the allowances paid to the petitioner in addition to the salary as well as the rent received from him and also the agricultural income, which are already on record and have been examined by the Income Tax Department, have not been taken into consideration. Had it been so, definitely his income would have been increased than the expenses, as has been calculated by the Investigating Officer. The petitioner submitted the statement of account to the Inquiry Officer during the open Vigilance Inquiry, validly accepted by the Income Tax Department, according to which the total income comes Rs.26,60,762.75, whereas the Investigation Officer has taken into account the total amount of income as Rs.18,01,857.00, It has left in counting the flying allowance i.e. Rs.3,67,050.00, the rental income as Rs.1,48,419.00. The petitioner's Agricultural income is Rs.6,17,000.00, as has been acknowledged by the Income Tax Department, but it has been counted by the Investigating Officer, only to the extent of Rs.2,04,611.00. 7. The income of the petitioner's wife i.e. Rs.21,64,576.00 has also been added in the petitioner's income only for the reason that she failed to explain the source of income, whereas according to the petitioner the Income Tax Department has acknowledged the said income as the petitioner's wife's income. Even if, it is so, it is petitioner's wife, who can be held liable, not the petitioner. He further raised the ground that once the matter was closed, there was no occasion to review the same by any Review Committee and that too without any authority and reason. 8. He further invited the attention of this court towards the contents of the charge sheet, whereby the Investigating Officer has admitted the fact of running the business by petitioner's wife since before her marriage. It also admits the income of petitioner's wife from the business as Rs.21,57,711.00. It is also indicated that the check period for the earlier inquiries, which have been dropped, as well as of the present inquiry, is the same. 9. It also admits the income of petitioner's wife from the business as Rs.21,57,711.00. It is also indicated that the check period for the earlier inquiries, which have been dropped, as well as of the present inquiry, is the same. 9. In light of the aforesaid facts it is stated that the criminal proceedings pending before the court below are abuse of process of the court being futile exercise as the statistics, as has been displayed here-in-above, shows that the petitioner does not own disproportionate assets to his known source of income. 10. In reply the learned Additional Government Advocate raised objection against the maintainability of the petition in light of the settled view of the Hon'ble Supreme Court pronounced in different cases to the effect that once on the basis of the police report, the learned Magistrate has taken cognizance, the correctness of the same cannot be examined by this court and the petitioner has to appear before the court below to face the trial pursuant to the summoning order. He further submits that the Hon'ble Supreme Curt in the case of Satya Narayan Sharma versus State of Rajasthan, reported in (2001) 8 SCC 607 , has held that no court shall stay the proceeding under the Code of Criminal Procedure, on any ground exercising inherent jurisdiction under Section 482 of the Code of Criminal Procedure as there is specific bar for staying the proceeding under Section 19 of the Prevention of Corruption Act, 1988. Section 19(3)(c) of the Prevention of Corruption Act, 1988 is quoted hereunder:- "19.(3) Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974).- (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings." 11. Accordingly he submits that in light of the dictum of the Hon'ble Supreme Court, there is no occasion for this court to interfere in the proceedings of the court below and the petition deserves to the dismissed. 12. Accordingly he submits that in light of the dictum of the Hon'ble Supreme Court, there is no occasion for this court to interfere in the proceedings of the court below and the petition deserves to the dismissed. 12. After hearing the learned counsels for the parties as well as after perusal of the record, I find that the statistics of income and expenditure of the petitioner as well as the other members of family, prima facie, does not lead to arrive at conclusion that the petitioner owns disproportionate assets to his known source of income and therefore, the criminal proceedings initiated against him would be abuse of process of the court, but in light of the judgment i.e. Satya Narayan Sharma's Case of the Hon'ble Supreme Court, I restrain my hand to interfere in the proceedings of the court below. 13. While going through the record, I find that by means of order dated 9th of January, 1998, the open inquiry/investigation initiated against the petitioner was terminated by the Government. Subsequently again by means of order dated 9th of December, 2005, the government reconsidered the petitioner's case and did not find any reason to proceed with the inquiry, therefore, terminated the same. However, on 5th of October, 2007, the government again revived the inquiry. The reason is well known to the government as letter dated 5th of October, 2007 does not indicate any reason. Since I am not entertaining the petition in light of the objection raised by the learned Additional Government Advocate, on merit, it is needless to discuss over this point. 14. The fact remains that now the inquiry has been completed and the charge sheet has been filed against the petitioner. The learned Magistrate has taken cognizance and petitioner has been summoned for trial under Section 7 read with Section 13(1)(e) and Section 13(2) of the Prevention of Corruption Act, 1988 by means of order dated 15th of February, 2011. The petitioner has to face the trial unless he is discharged by the learned Magistrate on the basis of the material produced by the prosecution side. 15. The petitioner has to face the trial unless he is discharged by the learned Magistrate on the basis of the material produced by the prosecution side. 15. Since the statistics of the income and expenditure of the petitioner are very much clear from the charge sheet itself, prima facie, that lead the petitioner's acquittal from the case, therefore, I hereby observe that the learned Magistrate shall examine the above materials placed by the prosecution deeply before framing of charges during course of enquiry and shall pass an appropriate order. 16. Keeping in view the facts and circumstances of the case, I also form an opinion that it is appropriate to give liberty to the petitioner to appear before the court below through counsel without putting him under unnecessary physical harassment. However, the learned Magistrate would be at liberty to ask him to furnish the bonds and sureties to his satisfaction. 17. With the aforesaid observations/directions without interfering into the merit of the case, the petition is disposed of finally.