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Allahabad High Court · body

2011 DIGILAW 94 (ALL)

Surendra Bahadur Singh v. State of U. P.

2011-01-13

RAJ MANI CHAUHAN

body2011
Hon'ble Raj Mani Chauhan,J. 1. This petition has been filed by the accused-petitioners for invoking its inherent power under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Code) for quashing the proceeding of complaint Case No. 10 of 2007 filed by the opposite party No.3-complainant against them in the court of learned Special Judge (Anti Corruption), Gorakhpur as well as for quashing the orders dated 10.5.2007 and 16.5.2007, passed by learned Special Judge (Anti-Corruption), Gorakhpur whereby he has taken cognizance of the offences on the complaint of the complainant and directed the Superintendent of Police, Vigilance, Lucknow to conduct inquiry in the matter. 2. From a perusal of the record, it appears that the learned Special Judge (Anti-Corruption), Gorakhpur, vide order dated 10.5.2007, had entertained the impugned complaint filed by the opposite party no.3. He took cognizance of the offences and recorded the statement of the complainant under Section 200 of the Code and thereafter fixed 16.5.2007 for recording the statement of witnesses under Section 202 of the Code. The learned Special Judge, vide order dated 16.5.2007, instead of making inquiry himself under Section 202 of the Code keeping in view the facts and circumstances of the case as well as nature of the offences alleged to have been committed by the accused petitioners thought it proper to get the matter preliminary inquired by the Vigilance Department, Lucknow. Consequently, he by the impugned order dated 16.5.2007 directed the Superintendent of Police, Vigilance, Lucknow to get the matter inquired in to from his own level and submit report before the court within two months from the date of the order. 3. The relevant facts giving rise to the present petition may be summarized as under: 4. The opposite party no. 3-Yogesh Talan, S/o Sri C.P. Singh, Managing Director, Startech Enggcon (P) Ltd., 505 DDA Building-5, District Center Janakpuri, New Delhi - 110058 filed a complaint against the accused petitioners in the Court of learned Special Judge (Anti Corruption), Gorakhpur with the allegation that he was Managing Director of Startech Enggcon (P) Ltd. which was involved in construction of building works. The petitioner no. 1-Surendra Bahadur Singh was Vice Chancellor of Dr. Ram Manohar Lohiya Avadh University and the petitioner no. 2-Babu Ram Kannaujia was Registrar of the said University during the relevant period. The petitioner no. The petitioner no. 1-Surendra Bahadur Singh was Vice Chancellor of Dr. Ram Manohar Lohiya Avadh University and the petitioner no. 2-Babu Ram Kannaujia was Registrar of the said University during the relevant period. The petitioner no. 1 in the year 2003-04 invited tenders for construction of Engineering workshop, Students Amenity Center and Campus Development in the University Campus. So many persons including him had filled their tender forms after depositing the requisite security amount to execute the works detailed in the tender notice. On opening of the tender, the rate quoted by him for execution of the work under the tender was found to be lowest, consequently the petitioner no.1 accepted his tender and after observing other formalities both of them executed the agreement deed i.e. contract to execute the work as detailed in the tender notice within the stipulated time mentioned therein. The complainant has further alleged that as per terms and conditions of the tender, he completed the work within the stipulated period as per satisfaction of the accused-petitioners. The quality of the work executed by him was found to be up to the mark as per specification in the tender notice. He in a grand programme organized by the petitioner no. 1 handed over the complete project of 'campus development work' to him. The 'students amenity center' too was inaugurated by His Excellency the Governor of Uttar Pradesh. The students amenity center was too handed over by him to the petitioners in the said programme. The complainant has further alleged that while he was constructing the student amenity center he had to execute additional work beyond the work mentioned in tender notice on the request of the petitioners as well as on the demand of the students. The estimated cost of construction of the students amenity center was notified in the tender notice as Rs. 36,45,977/- while he had to actually spend Rs. 46,14,970/- on this project. In this way, he had to spend Rs. 9,68,993/- in addition to the estimated cost, therefore, he was entitled to get the amount spent on the additional work. He had executed the additional work under the rate contract. The expected expenditure for construction of campus development was quoted in the tender as Rs. 50,46,185/- while he had to spend Rs. 73,54,127/- on the campus development project. He had to execute so many additional works for completing the campus development work. He had executed the additional work under the rate contract. The expected expenditure for construction of campus development was quoted in the tender as Rs. 50,46,185/- while he had to spend Rs. 73,54,127/- on the campus development project. He had to execute so many additional works for completing the campus development work. In this way, he had to spent Rs. 23,07,942/- in addition to the work allotted to him under the tender. As per terms of the agreement, he was entitled for reimbursement of expenditure incurred on the additional work executed by him. 5. The complainant has further alleged that the petitioner no. 1 released the amount of estimated cost of work undertaken by him as quoted in the tender but he did not pay the additional cost incurred by him on the additional work which was executed by him under the directions of the petitioners. In this way, an amount of Rs. 26,32,418/- was due to be paid to him against the petitioners for additional work done by him. He made continuous demand for payment of additional work done by him but the petitioners had never paid any attention. However, the accused petitioners released an amount of Rs. 9,94,854/- to him which he had deposited towards security for execution of work of campus development but the petitioners thereafter started to make demand from him @ Rs. 10 per cent on the security amount released by them. They also threatened him that in case he does not pay the amount demanded by them, they will not release the amount incurred by him on execution of additional work in campus development and other work. The accused-petitioner no.2-Babu Ram Kannaujia called him at his residence on 08.9.2006, consequently, he reached there on the same day at about 8:00 P.M. He was accompanied by Papish Kumar and Sant Kumar. Sri Kannaujia again demanded Rs. 1.00 lac @ 10 per cent on the amount of security which was released by the petitioners to him. He threatened him that in case he does not pay the amount he will get the payment of the amount incurred by him on the additional work stopped and will get his Company blacklisted so that his Company will not be able to get any work of any government department. He threatened him that in case he does not pay the amount he will get the payment of the amount incurred by him on the additional work stopped and will get his Company blacklisted so that his Company will not be able to get any work of any government department. He also informed him that whatever amount he will give him, 50 per cent of the so paid amount will be paid to the petitioner no. 1. He, therefore, under the threat and pressure of the petitioner no. 2 had to pay Rs. 50,000/- to him in presence of the aforesaid two witnesses. Sri Kannaujia after accepting Rs. 50,000/- again insisted for payment of Rs. 50,000/- more @ 10 per cent on the security amount that was released by the petitioner No. 1 to him. He thereafter met to the petitioner no. 1 in his office who also insisted for payment of Rs. 50,000/- on the security amount as well as 10 per cent on the amount to be paid to him for execution of additional work. In case he is not ready to pay the amount as per demand, the record relating to the execution of his work will be destroyed. He, therefore, under the compelling circumstances had to send a complaint of the entire facts on 25.9.2006 to His Excellency the Governor of Uttar Pradesh. When the petitioners came to know about the complaint, they called him in their office and pressurized him to withdraw the complaint which he had sent to His excellency the Governor of Uttar Pradesh. They also threatened him to face dire consequences. He thereafter sent a complaint to the Senior Superintendent of Police, Deputy Inspector General of Police, Faizabad and the State Information Commission, Lucknow too but no action was taken by any of the Authorities on his complaint. The complainant has further alleged that the above facts are proved by the documentary evidence as well as conversation between him and the accused-petitioners which were recorded by him. He, therefore, had no option except to file complaint. 6. The learned Special Judge recorded the statement of complainant under Section 200 of the Code on the same day and thereafter fixed 16.5.2007 for recording the statement of the witnesses under Section 202 of the Code. He, therefore, had no option except to file complaint. 6. The learned Special Judge recorded the statement of complainant under Section 200 of the Code on the same day and thereafter fixed 16.5.2007 for recording the statement of the witnesses under Section 202 of the Code. The learned Special Judge on 16.5.2007 instead of recording the statement of witnesses and making inquiry in the matter himself as contemplated under Section 202 of the Code, keeping in view the facts of the case and the nature of the offences thought it proper that the matter be referred to the Vigilance Department, Lucknow for making preliminary inquiry in the matter. Consequently, he instead of making inquiry himself as contemplated under Section 202 of the Code directed the Superintendent of Police, Vigilance, Lucknow to get the matter preliminary inquired into and submit his report within two months from the date of order. 7. The accused petitioners being aggrieved by the impugned orders as referred above passed by the learned Special Judge has filed the present petition under Section 482 of the Code for invoking its inherent power for quashing the proceedings of the complaint case as well as two impugned orders. 8. The accused petitioners in their petition have alleged the same facts as alleged by the complainant in his complaint to the extent that in the year 2004, the University had invited the tenders for construction of the students amenity center whose estimated cost was Rs. 36,45,977/- and campus development whose estimated cost was Rs. 50,46,185/-. The work was to be completed in the year 2004. So many persons including the complainant filed tenders quoting their rates. On opening the tenders, the rate quoted by the complainant for execution of the work under the tender was found to be lowest, consequently the petitioner no. 1 accepted his tender and after observing other formalities directed him to execute the work mentioned in the tender notice within the stipulated time. Thereafter, the university found that there were some other works which were to be done. The university decided to allot those works to the complainant whose estimated cost was Rs. 10,09,293/-. The complainant thereafter completed the work allotted to him within the given time schedule. He was paid for the work executed by him in view of the terms of the tender. The university decided to allot those works to the complainant whose estimated cost was Rs. 10,09,293/-. The complainant thereafter completed the work allotted to him within the given time schedule. He was paid for the work executed by him in view of the terms of the tender. The further allegation of the petitioners is that the complainant after receiving payment of work done by him became more greedy and started demanding additional amount of Rs. 22,67,822/- with the plea that he had made certain additional constructions while no order had been placed to him for execution of any other additional work. The complainant thereafter offered to pay 25 per cent for getting the additional amount which they flatly refused. The complainant thereafter sent SMS on Mobile Phone of the petitioner no. 1 on 16.12.2006 and 17.12.2006. He levelled false allegations against him which was displayed on Zee TV too. The complainant had levelled false allegations against him just to defame and pressurize him. Therefore, the petitioner no. 2 lodged a written report against the complainant at Police Station Kotwali Nagar, District Faizabad. On the basis of his written report, the police of Police Station Kotwali Nagar, District Faizabad, registered a case against the complainant under Sections 386/506 IPC for investigation. The complainant thereafter just by way of counter blast had filed a complaint under Section 156 (3) of the Code before the learned Chief Judicial Magistrate, Faizabad for directing to the Station House Officer of the Police Station Kotwali Nagar, Faizabad to register and investigate the case against the accused petitioners. The learned Chief Judicial Magistrate called a report from the Police Station Kotwali Nagar, Faizabad. The police submitted detailed report to the learned Chief Judicial Magistrate on 19.3.2007. The learned Chief Judicial Magistrate keeping in view the report submitted by the police as well as entire facts and circumstances of the case was of the view that the matter pertained to civil dispute. If the complainant had any grievance he could file a civil suit to realize his dues. Consequently, the learned Chief Judicial Magistrate, vide order dated 07.5.2007, rejected his complaint. 9. The complainant being aggrieved by the rejection order passed by the learned Chief Judicial Magistrate on his complaint under Section 156 (3) of the Code filed Criminal Revision before the Sessions Judge, Faizabad. Consequently, the learned Chief Judicial Magistrate, vide order dated 07.5.2007, rejected his complaint. 9. The complainant being aggrieved by the rejection order passed by the learned Chief Judicial Magistrate on his complaint under Section 156 (3) of the Code filed Criminal Revision before the Sessions Judge, Faizabad. When the complainant failed in his attempt to get the FIR lodged against the petitioners on false allegations, he concealing these material facts, filed present complaint before the learned Special Judge (Anti Corruption), Gorakhpur on 10.5.2007. The learned Special Judge without recording the statement of the witnesses under Section 202 of the Code took cognizance of the offences and thereafter instead of inquiring the case himself entrusted the matter to the Superintendent of Police, Vigilance, Lucknow to make a preliminary inquiry in the matter. It has further been alleged by the petitioners that the matter relates to dispute of payment which is of civil nature, therefore, if the complainant has got any grievance he can file civil suit but he just to harass them has filed the present complaint against them with altogether false allegations. The present complaint is nothing but sheer abuse of process of the Court which is liable to be quashed. 10. The opposite party no. 3-complainant had put in his appearance through his counsel at the time of entertaining the petition by this Court. The petition was opposed by him. The court after hearing the learned counsel for the petitioners and the learned counsel for the complainant at length was pleased to pass following interim order:- "........The facts of the case stated hereinabove clearly demonstrate that it is nothing but abuse of the process of the court. The ruling cited above has no application to the facts of the present case. It is a clear case of abuse of the process of the court. A prima facie case for interim relief is made out. Therefore, the opposite party may file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks. List thereafter. Meanwhile, the operation and implementation of the orders dated 10.5.2007 and 16.5.2007 contained in Annexures 2 and 3 respectively to the petition shall remain stayed." 11. A prima facie case for interim relief is made out. Therefore, the opposite party may file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks. List thereafter. Meanwhile, the operation and implementation of the orders dated 10.5.2007 and 16.5.2007 contained in Annexures 2 and 3 respectively to the petition shall remain stayed." 11. It is noteworthy that the complainant being aggrieved by the above interim order passed by this court, filed SLP before the Hon'ble Apex Court which was withdrawn by the learned counsel for the appellant (complainant) on 28.8.2007. The Hon'ble Apex Court disposed of the SLP filed by the appellant in the following manner: "Learned senior counsel for the petitioner wants to withdraw this petition. Permission is granted. The Special Leave Petition is dismissed as withdrawn. However, we request the High Court to expedite the hearing of the matter before it." 12. The complainant thereafter filed counter affidavit denying the allegations levelled by the accused petitioners against him. The complainant in his counter affidavit has asserted the same allegations which he has alleged in his present complaint as well as in his complaint filed under Section 156 (3) of the Code. He has further stated that as regards the rejection of his complaint filed by him under Section 156 (3) of the Code before the learned Chief Judicial Magistrate, Faizabad, this complaint was filed to direct the SHO of Police Station Kotwali Nagar, Faizabad to register and investigate the case under Sections 166/167/218/386/506 (2)/120-B/34 IPC. As the learned Chief Judicial Magistrate had no power to take cognizance and try the offences under the Prevention of Corruption Act, he, thereafter had to file the present complaint against the petitioners before the Special Judge (Anti Corruption), Gorakhpur for taking cognizance of the offences under Sections 7 to 11, 13, 13 (1)(d) and 13(2) of the Prevention of Corruption Act as he had got power to take cognizance and try such offences. He has further alleged that after rejection of his complaint filed under Section 156 (3) of the Code, he filed Criminal Revision before the learned Sessions Judge, Faizabad. The complaint filed by him under Section 156 (3) of the Code before the learned Chief Judicial Magistrate, Faizabad was on different footing than the present complaint. He has further alleged that after rejection of his complaint filed under Section 156 (3) of the Code, he filed Criminal Revision before the learned Sessions Judge, Faizabad. The complaint filed by him under Section 156 (3) of the Code before the learned Chief Judicial Magistrate, Faizabad was on different footing than the present complaint. The present complaint has been filed for summoning the accused petitioner under Section 7/13 Prevention of Corruption Act read with Sections 384/386/506 IPC for which the learned Chief Judicial Magistrate, Faizabad had no jurisdiction; rather the learned Special Judge (Anti Corruption), Gorakhpur had jurisdiction over the matter. The rejection of his complaint filed by him under Section 156 (3) of the Code by the Chief Judicial Magistrate, Faizabad is no bar for filing the present complaint against the petitioners before the learned Special Judge (Anti Corruption), Gorakhpur. It has further been alleged by the complainant that the petitioners were involved in malpractices and financial irregularities. On the complaint filed by him, the learned Special Judge (Anti Corruption), Gorakhpur had recorded his statement and while he was making inquiry under Section 202 of the Code, he thought it proper to refer the matter to the Vigilance Department, Lucknow to make a preliminary inquiry in the matter. The said complaint is at the stage of inquiry under Section 202 of the Code. During the course of inquiry, the real facts relating to the case will come on the surface. If the allegations made by him in the complaint are found to be false, the complaint shall be dismissed by the learned Special Judge (Anti Corruption), Gorakhpur. The petitioners have no locus standi to challenge the proceedings of the complaint case before they are summoned under Section 204 of the Code. The petitioners just to hide their malpractices have approached this Court filing the present petition which at this stage is not maintainable and is liable to be dismissed. 13. The complainant has moved a separate application under Section 340 of the Code to initiate criminal proceeding against the accused petitioners as they have filed false affidavit and forged copy of the complaint filed by him under Section 156 (3) of the Code. 13. The complainant has moved a separate application under Section 340 of the Code to initiate criminal proceeding against the accused petitioners as they have filed false affidavit and forged copy of the complaint filed by him under Section 156 (3) of the Code. It has been alleged by the complainant that the complaint under Section 156 (3) of the Code had been filed by him to summon and punish the petitioners for committing the offences under Sections 166/167/218/386/506 (2)/120-B/34 IPC while he has filed the present complaint before the learned Special Judge (Anti Corruption), Gorakhpur altogether with different facts i.e. he has filed complaint to summon the accused petitioners for committing the offences under Section 7/13 Prevention of Corruption Act read with Sections 384/386/506 IPC for which the learned Chief Judicial Magistrate, Faizabad had no power to take cognizance; rather the Special Judge (Anti Corruption), Gorakhpur had power to take cognizance of such offences and try the same. The petitioners have filed forged copy of the complaint filed by him before the Chief Judicial Magistrate, Faizabad wherein it has been written that the accused-persons had committed offences under Sections 166/167/218/386/506(2)/120-B/34 IPC read with Section 7 to 11, 13, 13(1)(d) and 13 (2) of the Prevention of Corruption Act while in fact no prayer was made by him in the complaint that the accused had committed offences under Sections 7 to 11, 13, 13(1)(d) and 13 (2) of the Prevention of Corruption Act. In this way, the petitioners have committed forgery, therefore, they be prosecuted under Section 340 of the Code. 14. The petitioners have opposed the application moved by the complainant under Section 340 of the Code. It has been stated in the rejoinder affidavit filed by Babu Ram Kannaujia (petitioner no. 2) that the factual allegations alleged by the complainant in his complaint under Section 156 (3) of the Code are almost the same as alleged by him in the present complaint. The complainant had prayed to the Chief Judicial Magistrate, Faizabad to direct the SHO of Police Station Kotwali Nagar, Faizabad to register and investigate the case against the accused under Sections 166/167/218/386/506 (2)/120-B/34 IPC read with Section 7 to 11, 13, 13 (1) (d) and 13 (2) of the Prevention Corruption Act. They have not filed forged copy of the complaint; rather they have filed true copy of the complaint. They have not filed forged copy of the complaint; rather they have filed true copy of the complaint. Therefore, they have not committed any forgery. They are not liable to be prosecuted under Section 340 of the Code. 15. Heard the learned counsel for the petitioners and the learned counsel for the complainant as well as Sri Rajendra Kumar Dwivedi, learned Additional Government Advocate. 16. The only question involved in the present petition for consideration by this court is that; "Whether the proceeding of the impugned complaint case initiated by the complainant against the petitioners including impugned orders dated 10.5.2007 and 16.5.2007 as referred above is liable to be quashed under Section 482 of the Code"? 17. The submission of the learned counsel for the petitioners is that the complainant had been allotted contract to construct students amenity center and campus development in Ram Manohar Lohia Awadh University by the petitioner no. 1. He after execution of work was pressurizing the petitioners for illegal payment. He was demanding the payment for the work which he neither had been granted any contract nor any work order had been placed to him for execution of such work. The complainant, therefore, moved several false complaints to higher authorities including the His Excellency the Governor of Uttar Pradesh. He also got a false news flashed on Zee TV against the petitioner No.1. He threatened the petitioners too. Therefore, the petitioner No.2 on 02.1.2007 had lodged written report against the complaint at Police Station Kotwali Nagar, Faizabad on the basis of which the police of Police Station Kotwali Nagar, Faizabad had register a case under Sections 386/506 IPC against the complainant for investigation. The complainant thereafter just to take revenge from the petitioners by way of counter blast had filed a complaint under Section 156 (3) of the Code against the petitioners before the Chief Judicial Magistrate, Faizabad for directing the SHO of P.S. Kotwali Nagar, Faizabad to register and investigate the case altogether with the same allegations which has been alleged by him in the present complaint. The learned Chief Judicial Magistrate, Faizabad after calling report from SHO of P.S. Kotwali Nagar, Faizabad, vide his detailed and reasoned order dated 07.5.2007, rejected his application/complaint with the observation that the complainant himself had filed writ petition no. 898/2007 (MB) against the petitioners before the High Court which was pending. The learned Chief Judicial Magistrate, Faizabad after calling report from SHO of P.S. Kotwali Nagar, Faizabad, vide his detailed and reasoned order dated 07.5.2007, rejected his application/complaint with the observation that the complainant himself had filed writ petition no. 898/2007 (MB) against the petitioners before the High Court which was pending. The complainant has alleged that he under the pressure had paid Rs. 50,000/- to the accused-petitioner no. 2. He himself had been party of the alleged criminal act. In fact, the dispute between the parties appeared to be related to payment of work done by the complainant under the contract. The complainant therefore can file civil suit for recovery of his dues and moreover the matter was subjudice in the writ petition filed by the complaint before the High Court. 18. The complainant being aggrieved by the order passed by the learned Chief Judicial Magistrate, Faizabad filed Criminal Revision before the Sessions Judge, Faizabad. The complainant side-by-side filed the present complaint in the court of Special Judge (Anti Corruption), Gorakhpur concealing the fact that he had already filed complaint before the Chief Judicial Magistrate, Faizabad under Section 156 (3) of the Code for directing the SHO of P.S. Kotwali Nagar, Faizabad to register and investigate the case which was rejected by him. The complainant did not approach the learned Special Judge (Anti-Corruption), Gorakhpur with clean hands. The complainant after rejection of his complaint filed under Section 156 (3) of the Code by Chief Judicial Magistrate, Faizabad has filed the present complaint with malafide intention. Once the complaint moved by the complainant under Section 156 (3) of the Code had been rejected by the learned Chief Judicial Magistrate, Faizabad on merit by a detailed and reasoned order, the present complaint almost on the same facts will be nothing but sheer abuse of the process of the court. Therefore, the impugned complaint filed by the complainant against the petitioners is liable to be quashed. 19. Learned counsel further submits that where a first complaint was dismissed on its merit, such order attains finality. The subsequent complaint on the identical facts shall not be maintainable. He further submits that although there is no statutory bar for filing second complaint but the second complaint can be entertained only in exception circumstances. 19. Learned counsel further submits that where a first complaint was dismissed on its merit, such order attains finality. The subsequent complaint on the identical facts shall not be maintainable. He further submits that although there is no statutory bar for filing second complaint but the second complaint can be entertained only in exception circumstances. In this case, there is no such exceptional circumstance, therefore, the present complaint filed by the complainant is nothing but sheer abuse of the process of the court as observed by this Court at the initial stage of the petition after hearing the learned counsel for the parties at length. 20. The learned counsel in support of his argument has placed reliance on case Poonam Chand Jain and another Vs. Fazru, reported in (2010) 2 Supreme Court Case 631, decided by Hon'ble Apex Court. 21. The next submission of the learned counsel for the accused petitioners is that the complainant had filed complaint under Section 156 (3) of the Code before the learned Chief Judicial Magistrate, Faizabad almost with the same allegations as the present complaint. The learned Chief Judicial Magistrate after going through the allegations made by the complaint in his complaint found that the matter related to payment of amount due under a contract relating to execution of construction work which was a dispute of civil nature. Therefore, the learned Chief Judicial Magistrate rejected the complaint by well reasoned order. In this case, admittedly the complainant was allotted contract by the petitioner No.1 under a contract to complete certain works mentioned therein. He executed the work allotted to him under the contract. As per allegation of the complainant, he had executed excess work other than the work mentioned in the contract. He was, therefore, entitled for the expenses incurred on the excess work. It has been alleged by the complainant that the petitioners were not making payment for the excess work done by him. In view of the facts of the case, the dispute between the parties related to payment of certain amount alleged to be due for the work executed by the complainant under a contract which is purely of a civil nature. The complainant just to give a criminal shape of the dispute has levelled false allegations against the petitioners that he had paid Rs.50,000/- to petitioner No.2 as bribe on account of his pressure. The complainant just to give a criminal shape of the dispute has levelled false allegations against the petitioners that he had paid Rs.50,000/- to petitioner No.2 as bribe on account of his pressure. He has further alleged that the petitioner No.1 was demanding Rs. 50,000/- more. This fact has been alleged by the complainant just to drag the petitioners to face criminal prosecution. The criminal proceeding initiated by the complainant is nothing but abuse of process of the court which is liable to be quashed. The learned counsel for the petitioners in support of his argument has placed reliance on the case of Inder Mohan Goswami and another Vs State of Uttranchal and others, reported in (2008), 1 Supreme Court Cases (Cri) 259. 22. The learned counsel for the complainant vehemently opposed the petition and argued that the submission of learned counsel for the petitioners is mis-conceived. The complainant had not filed any earlier complaint against the petitioners; rather he had filed an application under Section 156 (3) of the Code before the Chief Judicial Magistrate, Faizabad to direct the SHO of Police Station Kotwali Nagar, Faizabad to register and investigate the case on his application. The complainant in his complaint has alleged that the accused petitioners had committed offences under Sections 166/167/218/386/506 (2)/120-B/34 IPC. Consequently, he had approached the learned Chief Judicial Magistrate to direct the SHO of the Police Station Kotwali Nagar, Faizabad to register and investigate the case. He had not prayed to direct the SHO of Police Station Kotwali Nagar, Faizabad to register and investigate the case under the Prevention of Corruption Act as he had no power to take cognizance of such offences. The present complaint filed by the complainant is first complaint in which the complaint has prayed for summoning and punishing the accused under Section 7/13 Prevention of Corruption Act read with Sections 384, 386, 506 I.P.C. The learned Chief Judicial Magistrate was not empowered to entertain the complaint filed by the complainant under the Prevention of Corruption Act, therefore, the complainant has filed the present complaint before the learned Special Judge (Anti-Corruption Act), Gorakhpur who has power to entertain the complaint and take cognizance of the offences under the Prevention of Corruption Act and try the same committed in district Faizabad. Therefore, the complainant has filed the present complaint before the learned Special Judge (Anti Corruption), Gorakhpur against the accused petitioners which is the first complaint and as such the complaint filed by the complainant is not barred. The present complaint cannot be said as abuse of process of the court. 23. The further submission of the learned counsel for the complainant is that the learned Special Judge (Anti-Corruption) on the complaint of the complainant recorded his statement under Section 200 of the Code and thereafter he proceeded to make inquiry under Section 202 of the Code and fixed 16.5.2007 for recording the statement of the witnesses. The learned Special Judge on the date fixed in view of the facts and circumstances of the case as well as nature of the offences thought it proper that the matter requires to be preliminary inquired into by the Vigilance Department, Government, U.P., Lucknow. Consequently, the learned Special Judge directed the Superintendent of Police, Vigilance, Lucknow to make a preliminary inquiry in the matter and submit his report. The matter is under inquiry. On inquiry, the real facts will come on the surface which can show as to whether the accused petitioners had committed any offence or not. If the Court interferes in the matter at the stage of inquiry, the very purpose of inquiry will be frustrated. The proceeding of the complaint case before summoning the accused petitioners cannot be quashed under Section 482 of the Code. The petitioners have got no locus standi to challenge the proceeding of complaint case before they are summoned under Section 204 of the Code. The petition is, therefore, not maintainable and is liable to be dismissed on this ground. The learned counsel in support of his argument has placed reliance on cases Chandra Deo Singh Vs. Prokash Chandra Bose alias Chabi Bose and another, reported in AIR 1963 Supreme Court 1430, State of Orissa and another Vs. Saroj Kumar Sahoo, reported in (2006) 2 Supreme Court Cases (Cri) 272, State of Karnataka and another Vs. Pator P. Raju, reported in (2006) 6 Supreme Court Cases 728 and State (Delhi Admn.) Vs. V.C. Shukla and another, reported in AIR 1980 Supreme Court 1382, all decided by the Hon'ble Apex Court. 24. The learned counsel further argued that in this case the accused petitioners have approached before this Court by filing false affidavit. Pator P. Raju, reported in (2006) 6 Supreme Court Cases 728 and State (Delhi Admn.) Vs. V.C. Shukla and another, reported in AIR 1980 Supreme Court 1382, all decided by the Hon'ble Apex Court. 24. The learned counsel further argued that in this case the accused petitioners have approached before this Court by filing false affidavit. They have submitted false affidavit that the complainant had filed complaint under Section 156(3) of the Code to direct the SHO of Police Station Kotwali Nagar, Faizabad to register and investigate the case under Sections 166/167/218/386/506 (2)/120-B/34 IPC read with Section 7 to 11, 13, 13 (1) (d) and 13 (2) of the Prevention Corruption Act. They have filed forged copy of the complaint filed by the complainant under Section 156(3) of the Code in which it has been alleged that the accused petitioners had committed offences under Sections 166/167/218/386/506 (2)/120-B/34 IPC read with Section 7 to 11, 13, 13 (1) (d) and 13 (2) of the Prevention Corruption Act while in fact the complainant had prayed for directing the SHO of Police Station Kotwali Nagar, Faizabad to register and investigate the case against the accused petitioners only. The complainant in his complaint had deleted the sentence "read with Section 7 to 11, 13, 13 (1) (d) and 13 (2) of the Prevention Corruption Act" which had been wrongly typed. In this way, the accused petitioners have given false affidavit as well as they have filed forged copy of the complaint filed by the complainant before the learned Chief Judicial Magistrate, Faizabad. This act of the petitioners amounts to criminal act for which they are liable to be prosecuted under Section 340 of the Code. 25. I have given thoughtful consideration to the rival submissions of the learned counsel for the parties and gone through the case laws cited by them. 26. The main argument of the learned counsel for the complainant is that the allegations made by the complainant in the present complaint are not almost the same which were made by him in his complaint under Section 156 (3) of the Code which he had filed before the learned Chief Judicial Magistrate, Faizabad. 26. The main argument of the learned counsel for the complainant is that the allegations made by the complainant in the present complaint are not almost the same which were made by him in his complaint under Section 156 (3) of the Code which he had filed before the learned Chief Judicial Magistrate, Faizabad. Moreover, the learned Special Judge on the complaint of the complainant had recorded his statement under Section 200 of the Code and fixed next date for recording the statement of the witnesses for conducting an inquiry as provided under Section 202 of the Code. The learned counsel for the complainant submits that Section 202 of the Code provides for inquiry by the Magistrate. The learned Special Judge, in view of the facts and circumstances of the case as well as nature of the offences thought it proper that the matter be preliminary inquired into by the Vigilance Department, Lucknow. Therefore, he ordered the Superintendent of Police, Vigilance, Lucknow to conduct an inquiry into the matter. This order was passed by the learned Special Judge before summoning the accused-petitioners. The accused at this stage has got no locus standi to participate in the proceedings pending before the learned Special Judge (Anti Corruption), Gorakhpur. The impugned order is pre-summoning order of the accused which cannot be challenged by them in petition under Section 482 of the Code. Therefore, the petition is not maintainable. 27. In the case of Chandra Deo Singh, Vs. Prokash Chandra Bose alias Chabi Bose and another (supra), the Hon'ble Apex Court has held that a prospective accused cannot be permitted to participate in the inquiry under Section 202 of the Code. If he is permitted so the very purpose of inquiry would be frustrated. The relevant observation of the Hon'ble Apex Court finds place in para 7 of the judgment which is being extracted hereinbelow: "7........ An enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry......." 28. In the case of State (Delhi Admn.) Vs. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry......." 28. In the case of State (Delhi Admn.) Vs. V.C. Shukla and another (supra), the Hon'ble Apex Court has held that where on a complaint the Magistrate choses to hold an inquiry under Section 202 of the Code, the accused will have no locus standi to appear and file objection as such order is before pre-summoning the accused. The relevant observations of the Hon'le Apex Court finds place in para 84 of the judgment which is being extracted hereinbelow: "84. .........Where a complaint is filed before a Magistrate who choses to hold an inquiry under Section 202 of the Code of Criminal Procedure before issuing process or summons to the accused. It has been held in several cases that at that stage the accused has got no locus to appear and file his objections to the inquiry. The right of the accused to be heard comes into existence only an order summoning the accused is passed by the learned Magistrate under Section 204 of the Code of Criminal Procedure. ......." 29. In the case of State of Karnataka and another Vs. Pastor P. Raju (supra), it has been held by the Hon'ble Apex Court that the bar under Section 196 (1-A) of the Code for taking cognizance of offence will not apply for registration of a criminal case against the accused or investigation by the police or even submission of police report under Section 173 of the Code on completion of the investigation. If the said acts are done without prior sanction of the Central Government or State Government or District Magistrate there will be no violation of Section 196 (1-A) of the Code. 30. In the case of State of Orissa and another Vs. Saroj Kumar Sahoo (supra), it has been held by the Hon'ble Apex Court that the inherent power conferred on High Court under Section 482 of the Code should be exercised sparingly and that too in the rarest of the rare cases. Such power cannot be exercised during investigation where the prima-facie, evidence is to be collected. The accused cannot be permitted under Section 482 of the Code to short circuit the prosecution and bring about his surrender. Such power cannot be exercised during investigation where the prima-facie, evidence is to be collected. The accused cannot be permitted under Section 482 of the Code to short circuit the prosecution and bring about his surrender. The relevant observation of the Hon'ble Apex Court finds place in para 11 of the judgement which is extracted hereinbelow:- "11.........The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are in complete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, or on magnitude and cannot be seen in their true prospective without sufficient material......." 31. In view of the law laid down by the Hon'ble Apex Court in the above cited case, it is clear that the accused cannot be permitted to participate in an inquiry being conducted by the Magistrate under Section 202 of the Code or by any agency under the direction of the learned Magistrate. Such proceeding normally cannot be challenged under Section 482 of the Code but the facts and circumstances of the present case are some what different. In this case, the petitioners have sought for quashing the proceeding of the complaint case as well as two impugned orders passed by the learned Special Judge as referred above mainly on the ground that the complainant has filed impugned complaint concealing the facts that he had already filed a complaint almost with the same allegations as in the present complaint, under Section 156 (3) of the Code before the Chief Judicial Magistrate, Faizabad for directing the SHO of police Station Kotwali Nagar, Faizabad to register and investigate the case, which was rejected by the learned Chief Judicial Magistrate by detailed and reasoned order. The order passed by the learned Chief Judicial Magistrate was challenged by him in revision. At the time of filing the complaint, the revision filed by the complainant was pending but at this stage the learned counsel for the complainant informs that the revision filed by the complainant has been dismissed. Therefore, the order passed by the Chief Judicial Magistrate, Faizabad rejecting the application/complaint filed by the complainant under Section 156 (3) of the Code has become final. 32. In the case of Poonam Chand Jain and another Vs. Therefore, the order passed by the Chief Judicial Magistrate, Faizabad rejecting the application/complaint filed by the complainant under Section 156 (3) of the Code has become final. 32. In the case of Poonam Chand Jain and another Vs. Fazru (supra), the Hon'ble Apex Court considering the law laid down by it in earlier cases Pramatha Nath Talukdar Vs Saroj Ranjan Sarkar, reported in AIR 1962 SC, 876, Jatinder Singh Vs Ranjit Kaur, reported in (2001), 2 SCC 570, and Mahesh Chand Vs B. Janardhan Reddy, reported in (2003) 1 SCC 734 has held that where the complaint is dismissed by the learned Magistrate under Section 203 of the Code, such order attains finality. The second complaint filed by the complainant almost on the same facts concealing the fact of the dismissal of the earlier compliant will not be maintainable. It is further held that though there is no statutory bar for filing second complaint on the same facts but the same can be entertained only in exceptional circumstances. 33. The learned counsel for the complainant tried to convince the Court that the complainant has not filed the present complaint with the identical facts which he had alleged in his complaint filed under Section 156 (3) of the Code before the learned Chief Judicial Magistrate, Faizabad. He rather submits that the facts of both the cases are different. But this submission of the learned counsel for the complainant is against the record. From a perusal of the allegations made by the complainant in the present complaint as well as in his complaint filed under Section 156 (3) of the Code before the learned Chief Judicial Magistrate, it appears that the fact of inviting tender by the petitioner no.1 for execution of work as detailed above are the same. The allegation of the complainant that he had executed the work in excess to the contract for which he was not paid by the petitioners is also there in the present complaint as well as in his complaint filed under Section 156 (3) of the Code. As regards the allegations that the accused petitioners were demanding one lac on security amount by way of bribe and he under the pressure had paid Rs. 50,000/- to the petitioner No.2 on 8.9.2006, are also there in the present complaint as well as in the complaint filed under Section 156 (3) of the Code. As regards the allegations that the accused petitioners were demanding one lac on security amount by way of bribe and he under the pressure had paid Rs. 50,000/- to the petitioner No.2 on 8.9.2006, are also there in the present complaint as well as in the complaint filed under Section 156 (3) of the Code. The relevant paras of the complaint filed by the complainant under Section 156 (3) of the Code are being extracted hereinbelow:- "9. That in the month of June, 2006, these two accused persons released the security amounts of only two projects out of three protects namely (I) Engg. Workshop (ii) Campus Development Work, amount to Rs. 9,94,854.00 and asked the complainant to pay the 10% cash to them of the released amount. The complainant was not able to make the abovesaid payment due to compulsion and financial crises. 10.That the abovesaid accused persons were not releasing the due amount for their vested interest as per admissions and University measurement-book, the complaint was entitled for the abovesaid claimed amount from the University in lieu of the construction and development work and against security deposits. 11.That it was after various telephonic persuasion that the complainant was called at the residence of Shir B.R. Kanaujia (Registrar) accused no.2 where the complainant had to pay illegal gratification to the accused no.2 who received the same for himself and on behalf of the accused no.1. 12.That the complainant had only Rs. 50,000/- at that time so the complainant had to pay this amount to Shri B.R. Kanaujia accused no.2 at this residence on 8.9.2006. The complainant did not pay this amount willfully to Shri B.R. Kanaujia accused no.2 but both the abovesaid accused persons compelled him to pay this amount, as the complainant from the conduct of the accused had understood that they will cause wrongful loss to him in case he did not accede to the illegal demand deal of the accused persons. 13.That Mr. B.R. Kanaujia accused no.2 asked the complainant to meet Shri S.B. Singh (Vice Chancellor) accused no.1 for the balance outstanding amount and Shri S.B. Singh (Vice Chancellor) accused no.1 frankly told the complainant that Rs. 50,000/- is not sufficient amount and the complainant will have to pay Rs. 1.0 lakh for the released of this security amount and also asked the complainant to make payment in cash in advance. 50,000/- is not sufficient amount and the complainant will have to pay Rs. 1.0 lakh for the released of this security amount and also asked the complainant to make payment in cash in advance. 10% of the total outstanding amount towards the approval and remittance of the balance outstanding amount and also told the complainant that he will approve and remit the balance amount only after getting the 10% of the total amount in cash and in advance. 34. From a perusal of copy of the present complaint (Annexure-1), it appears that the complainant has almost reproduced the same facts in the present complaint too. In para 32 of the complaint, he has specifically alleged that the accused B.R. Kanaujia (petitioner No.2) after he had received security amount called him to his residence on 8.9.2006. He, therefore, reached to his residence on the same day at 8.00 P.M. along with witnesses Papish Kumar and Sant Kumar. Sri Kanaujia told him that the commission on the security amount at the rate of 10% was Rs. 99,485/- and he had to pay the amount to him otherwise he will get his Company blacklisted. In para-33 of the complaint, he has alleged that he was having Rs. 50,000/- with him. He on account of threatening given by B.R. Kanaujia had to pay Rs. 50,000/- to him. He also advised him to have a talk to accused No.1, Vice-Chancellor for payment of rest amount. In para-35 of the complaint, he has alleged that as per direction of accused No.2, he went to the office of accused no.1 along with witnesses. The accused No.1 in presence of witnesses told him that payment of only Rs. 50,000/- will not be sufficient; rather has had to pay the amount of Rs. one lac towards commission on released security amount. The accused No.1 further told him that he had to pay at the rate 10% on the balance amount to be paid to him. 35. After going through the allegations made by the complainant in the present complaint as well as the allegations made by him in his complaint filed under Section 156 (3) of the Code before the learned Chief Judicial Magistrate, Faizabad, it appears that almost the allegations are same. 35. After going through the allegations made by the complainant in the present complaint as well as the allegations made by him in his complaint filed under Section 156 (3) of the Code before the learned Chief Judicial Magistrate, Faizabad, it appears that almost the allegations are same. Although the complainant in his complainant filed under Section 156 (3) of the Code has deleted the sentence "read with Section 7 to 11 Punishable under Section 12 and 13 (1)(d) Punishable under Section 13(2) of the Prevention of Corruption Act, 1988" but it will make hardly difference if the allegation of bribery is there in the complaint. Therefore, only deleting this sentence "read with Section 7 to 11 Punishable under Section 12 and 13 (1)(d) Punishable under Section 13(2) of the Prevention of Corruption Act, 1988" will not make any difference. The sentence mentioned above was already there in the initial complaint under Section 156 (3) of the Code. 36. From a perusal of the order passed by the learned Chief Judicial Magistrate, Faizabad on the complaint of the complainant filed under Section 156 (3) of the Code, it appears that the learned Chief Judicial Magistrate called the report of Police, Police Station Kotwali Nagar, Faizabad. He after receiving the report from Police Station Kotwali Nagar, Faizabad considered the complaint and dealt with the allegations levelled by the complainant in detail and he by well reasoned order found that there was dispute of payment of amount between the complainant and the accused petitioners relating to work which the complainant had executed in the University Campus under a contract. The dispute was of civil nature, therefore, the complainant could file civil suit for realization of amount which is said to have been withheld by the accused petitioners. The complainant has alleged that he under the pressure of petitioner No.2 had paid Rs. 50,000/- to him by way of illegal gratification which shows that he himself was party to the transaction. The learned Chief Judicial Magistrate also found that the complainant had already approached to this Court by filing writ petition No. 898 (MB) of 2007 against the petitioners which was pending. In the circumstances, the learned Chief Judicial Magistrate, Faizabad rejected the complaint. 37. The learned Chief Judicial Magistrate also found that the complainant had already approached to this Court by filing writ petition No. 898 (MB) of 2007 against the petitioners which was pending. In the circumstances, the learned Chief Judicial Magistrate, Faizabad rejected the complaint. 37. Although the complaint filed by the complainant under Section 156 (3) of the Code was not dismissed by the learned Chief Judicial Magistrate treating the same as complaint under Section 203 of the Code after conducting inquiry under Section 202 of the Code but the same could be treated as complaint by the Chief Judicial Magistrate. The heading of the application filed by the complainant itself is written as "COMPLAINT UNDER SECTION 156(3) OF THE CRIMINAL PROCEDURE CODE". The learned Chief Judicial Magistrate in view of the facts of the case did not think it proper to treat the application filed by the complainant under Section 156 (3) of the Code as complaint. The learned Chief Judicial Magistrate applied his mind to the facts of the case and he after considering entire facts as narrated above rejected his application by detailed and reasoned order. Thereafter the complainant almost with the same allegations has filed the present complaint against the petitioners before the learned Special Judge (Anti-Corruption), Gorakhpur in which he has not disclosed the facts that he had already filed complaint before the learned Chief Judicial Magistrate under Section 156 (3) of the Code for directing the SHO of the Police Station Kotwali Nagar, Faizabad to register and investigate the case which was rejected by him. The learned Special Judge recorded his statement under Section 200 of the Code. He in his statement too did not disclose this fact that his complaint filed under Section 156 (3) of the Code had been rejected by the learned Chief Judicial Magistrate. In this way, the complainant did not approach the learned Special Judge (Anti Corruption) with clean hand. 38. Admittedly, the complainant had filed revision before the learned Sessions Judge against the order of rejection of his complaint filed under Section 156 (3) of the Code by the learned Chief Judicial Magistrate, Faizabad which was pending at the time of filing of the present complaint. During the course of argument, the learned counsel for the complainant informed that the revision filed by the complainant has been dismissed by the revisional court. During the course of argument, the learned counsel for the complainant informed that the revision filed by the complainant has been dismissed by the revisional court. Therefore, the rejection order passed by the learned Chief Judicial Magistrate has attained the finality. From a perusal of the record, it appears that the accused petitioner No.2-B.R. Kanaujia had also lodged F.I.R. against the complainant on 2.1.2007 at Police Station Kotwali Nagar, Faizabad under Sections 386, 506 I.P.C. for investigation. The matter was already under investigation. Thereafter the complainant had filed the complaint under Section 156 (3) of the Code before the learned Chief Judicial Magistrate for directing the SHO of the Police Station Kotwali Nagar, Faizabad to register and investigate the case. After dismissal of his complaint filed under Section 156 (3) of the Code, he concealing this fact filed the present complaint before the learned Special Judge (Anti-Corruption), Gorakhpur almost on the identical facts. The submission of learned counsel for the complainant is that since the learned Chief Judicial Magistrate, Faizabad had got no power to take cognizance of the offences under the Prevention of Corruption Act, therefore, the complainant had to file the present complaint before the learned Special Judge (Anti Corruption), Gorakhpur who had power to take cognizance of offences under the Prevention of Corruption Act relating to district Faizabad but this argument has got no force. In the complaint filed by the complainant before the learned Chief Judicial Magistrate, Faizabad, the allegations of corruption were there. The learned Chief Judicial Magistrate might not have power to take cognizance for the offences under the Prevention of Corruption Act but he could order for registration of First Information Report which could be transferred for investigation to the Officer empowered to investigate the case. The Chief Judicial Magistrate, Faizabad could very well order for registration of the First Information Report. 39. After going through the entire facts and circumstances of the case, it appears that the complainant has filed the present complaint against the accused petitioners almost with the same allegations as alleged by him in his complaint under Section 156(3) of the Code filed before the learned Chief Judicial Magistrate, Faizabad which was rejected by him. The complainant did not disclose the fact in the present complaint that his complaint under Section 156 (3) of the Code had already been rejected by the Chief Judicial Magistrate. The complainant did not disclose the fact in the present complaint that his complaint under Section 156 (3) of the Code had already been rejected by the Chief Judicial Magistrate. If the complainant had disclosed the entire facts in the present complainant, the learned Special Judge could decline to take cognizance on his complaint. Keeping in view the totality of the facts and circumstances of the case, I agree with the earlier observation of this Court while passing the interim order at the time of entertaining the petition that "the facts of the case stated hereinabove clearly demonstrate that it is nothing but abuse of the process of the Court". 40. In view of the observations made hereinabove, the petition deserves to be allowed. 41. The petition is, therefore, allowed. The impugned order dated 10.5.2007, passed by the learned Special Judge (Anti Corruption), Gorakhpur, taking cognizance of the offences and the impugned order dated 16.5.2007, passed by him, directing the Superintendent of Police, Vigilance, Lucknow to conduct inquiry in the matter as well as the proceeding of the Complaint Case No. 10 of 2007; Yogesh Talan Vs. Surendra Bahadur Singh and another, are hereby quashed. 42. As regards the application (Crl. M. A. No. 12339 of 2007) filed by the complainant under Section 340 of the Code to initiate criminal proceedings against the petitioners, in view of the observations made above, I do not find any substance in the submission of the learned counsel for the complainant that the petitioners have made interpolation in the copy of the complaint filed by the complainant under Section 156 (3) of the Code. From a perusal of the copy of the complaint filed by the complainant under Section 156 (3) of the Code, it appears that the sentence "read with Section 7 to 11 Punishable under Section 12 and 13 (1)(d) Punishable under Section 13(2) of the Prevention of Corruption Act, 1988" was there in the complaint which was later on deleted by the complainant by cutting the above sentence. It might be possible that the petitioners had procured the copy of the complaint before the sentence as mentioned above would not have been deleted by the complainant by cutting the same. At this stage, it is not clear as to whether the cutting in the above sentence had been made by the complainant before filing the complaint or after filing the complaint. At this stage, it is not clear as to whether the cutting in the above sentence had been made by the complainant before filing the complaint or after filing the complaint. On the basis of material available on record, it is not clear that the petitioners had made any forgery in the document filed before the court. Therefore, the court does not find any sufficient ground to initiate the criminal proceedings against the petitioners under Section 340 of the Code. The application filed by the complainant under Section 340 of the code is, therefore, rejected.