Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 2186 (ALL)

DINESH SINGH CHAHAR v. STATE OF U. P.

2018-10-11

DINESH KUMAR SINGH I, RAMESH SINHA

body2018
JUDGMENT By the Court.—Heard Sri Virendra Singh and Sri Dinesh Tiwari, learned counsel for the petitioner, Sri Suresh Chandra Dwivedi, learned counsel for the private respondent No. 7 and Sri N.K. Verma, learned A.G.A. for the state. 2. This Criminal Misc. Writ Petition has been filed by the petitioner seeking quashing of impugned order dated 25.4.2018 passed by the State Government in respect of F.I.R. dated 2.5.2017 registered as Case Crime No. 254 of 2017, Police Station Shahganj, District Agra, under Sections 7, 13(1)d and Section 13(2) of PC Act, 1988 and for issuing a mandamus commanding the respondent No. 1 to reconsider sanctioning prosecution of respondent No. 7 on approved DFR (draft final report) by the Director Vigilance and decide the same in accordance with law. 3. In brief, the prosecution case is that on a complaint of the petitioner, Dinesh Singh Chahar, a trap proceedings were laid against the respondent No. 7, Kanahaiya Lal Saraswat, Lekha Adhikari, Office of Basic Shiksha Adhikari, Agra. The respondent No. 7 was arrested taking bribe of Rs. 50,000/- on 2.5.2017 by the trap team, headed by the informant, Sarad Chandra Sharma, Deputy Superintendent of Police, Uttar Pradesh Vigilance Establishment, pursuant to which Case Crime No. 254 of 2017 was registered under Section 7/13(1) and Section 13(2), Police Station Shahganj, District-Agra on 2.5.2017. According to F.I.R., the said amount was being demanded by the respondent No. 7 as illegal gratification from the petitioner-complainant, for doing his work. The petitioner had approached the authorities for getting the respondent No. 7 caught red handed taking bribe and thereafter, the trap proceedings were laid in accordance with the procedure prescribed. 4. The contention of the learned counsel for the petitioner is that the petitioner was appointed as Assistant Teacher of Primary Vidyalaya on 1.10.2005 and since thereafter he was continuously working on the said post. He had made a complaint against Head Master for not purchasing the chairs and misappropriating the amount, as a result of which, he became inimical to petitioner and started absenting the petitioner-complainant on attendance register and also made a complaint against him in that regard. Thereafter, the Additional District Basic Shiksha Adhikari directed for preparing separate register for his attendance. He had made a complaint against Head Master for not purchasing the chairs and misappropriating the amount, as a result of which, he became inimical to petitioner and started absenting the petitioner-complainant on attendance register and also made a complaint against him in that regard. Thereafter, the Additional District Basic Shiksha Adhikari directed for preparing separate register for his attendance. One day he moved an application for leave, taking advantage of the same the Additional District Basic Shiksha Adhikari called Sub-Divisional Magistrate to his college and showed him the absence of the petitioner of last 2-3 months in the register, on which the S.D.M. directed Basic Shiksha Adhikari to take action against him, pursuant to which he was placed under suspension on 2.9.2016. The respondent No. 7 took charge of Account Officer in the office of Basic Shiksha Adhikari on 8.6.2016. The petitioner was paid salary upto June i.e. Rs. 35,841/- and thereafter he was paid subsistence allowance for the first time on 22.12.2016 in respect of salary of November, hence he made a complaint in this regard. After the suspension of the petitioner, an Inquiry Officer was appointed and he was co-operating with the inquiry, which was yet to be completed and more than three months had passed. After three months of his suspension on 2.12.2017, the petitioner was entitled for 3/4th of salary amount as subsistence allowance and when the same was not paid, the petitioner had moved applications dated 25.12.2017, 21.2.2017, 27.2.2017 and 9.3.2017 before the Basic Shiksha Adhikari but to no avail. Thereafter, the petitioner approached respondent No. 7 with the request that he should be paid the subsistence allowance at the due date for which the respondent No. 7 demanded Rs. 30,000/-. Thereafter the petitioner made a complaint to the Superintendent of Vigilance, Agra in this regard, a copy of the same was forwarded to Basic Shiksha Adhikari. The amount, which was being asked as illegal gratification for releasing the subsistence allowance of the petitioner by the respondent No. 7, was negotiated and brought down to Rs. 50,000/- and thereafter, the petitioner made a complaint to Director General of Vigilance in respect of the said illegal demand by respondent No. 7. The amount, which was being asked as illegal gratification for releasing the subsistence allowance of the petitioner by the respondent No. 7, was negotiated and brought down to Rs. 50,000/- and thereafter, the petitioner made a complaint to Director General of Vigilance in respect of the said illegal demand by respondent No. 7. According to the advice given by the Financial Controller and Lekha Adhikari Office of Director Vigilance, the petitioner came to know that the Account Officer of Basic Shiksha Adhikari is competent authority for making payment of 3/4th of salary as subsistence allowance to him. The matter was pending before the respondent No. 7. The Competent Authority of Vigilence had informed the petitioner that after receipt of his compliant, the confidential enquiry would be made about working of respondent No. 7 only then further action would be taken. It appears that after receipt of confidential report, the Vigilance Department constituted a trap team headed by Deputy S.P. Vigilance and called the petitioner to Agra alongwith cash and also got appointed two witnesses by Collector, Agra for laying the trap. The treated currency notes of the total amount of 50,000/- were given to the petitioner in presence of two witnesses to be paid to the accused-respondent No. 7. The trap team and the witnesses, who were appointed by the Collector reached the office of respondent No. 7 at about 4:00 p.m., thereafter the petitioner paid cash in hands of respondent No. 7, who received the same on 2.5.2017 and started counting it and then in presence of trap team and witnesses, the respondent No. 7 was caught red-handed inside the room. The procedure of use of Sodium Carbonate was adopted and thereafter the F.I.R. was lodged against the respondent No. 7. Sri R.P. Singh was appointed as an Investigating Officer in this case, who recorded the statement of two witnesses, who were appointed by the District Magistrate, Agra as well as other members of the trap team including informant, who headed the trap team and lodged the F.I.R. The Director Vigilance after receipt of DFR examined the matter and being satisfied with the evidence gathered approved the same and sent the DFR to the Government for sanctioning the prosecution of the accused. Further it is submitted that one Deepak Rishi Gaur, a member of Akhil Vidhyarthi Parishad, resident of Bulandshahar, is very closely related to Smt. Labi Sharma wife of respondent No. 7 and Deepak Rishi Gaur, who wielded political influence and these persons tried to put pressure to save respondent No. 7. Smt. Labi Sharma moved applications dated 19.6.2017 and 28.6.2017 before the Government stating therein false implication of her husband by trap team on which the Government sought the report from U.P. Vigilance Establishment, Lucknow, which resulted in delay of sanction of prosecution by the Government and consequently respondent No. 7 got released on bail under Section 167(2) Cr.P.C. due to non submission of charge-sheet within 90 days although his earlier bail application was rejected by the Special Court Meerut vide order dated 2.8.2017. The respondent No. 7 was released from jail and thereafter he exerted political pressure through District President Bhartiya Janta Party, Sri Shyam Singh Bhadauriya, who sent letter on 14.8.2017 to Finance Minister, State of U.P. for reinstatement of respondent No. 7 and consequently he was reinstated also vide order dated 23.8.2017. Further it is submitted that inspite of submission of draft Final Report by the Investigating Officer, the sanction for prosecution was not given. When the sanction for prosecution was not given, the petitioner had filed Criminal Misc. Writ Petition No. 24414 of 20171 in which the High Court called for a report from the Principal Secretary, Home, who submitted counter-affidavit stating that on the application of Smt. Labi Sharma, the State Government sought a report and that after approval of DFR by Director Vigilance, the State Government would take decision. The High Court disposed of the said petition with direction to Director Vigilance that he would submit his report before competent authority within four weeks and the Investigating Officer would submit police report before competent authority within two months and thereafter, the State Government would take decision in the matter. Further it is submitted that after receipt of the application of Smt Labi Sharma, the Director Vigilance called for a report of S.P. Vigilance, Agra and appointed an Officer to enquire into this matter as earlier Investigating Officer Sri R. P. Singh had retired. Further it is submitted that after receipt of the application of Smt Labi Sharma, the Director Vigilance called for a report of S.P. Vigilance, Agra and appointed an Officer to enquire into this matter as earlier Investigating Officer Sri R. P. Singh had retired. The new Investigating Officer recorded the statement of all the officials working in the office of Lekha Adhikari and when a number of persons started giving statement against the respondent No. 7 then rest of official were called in office of S.P. Vigilance, Agra on the next day and respondent No. 7 was also present. The statement of officials of Lekha Adhikari were recorded in presence of respondent No. 7 and affidavit of petitioner was also taken on record. Thereafter the statement of informant as well as all members of the trap team were taken alongwith the statements of witnesses, who were appointed by the District Magistrate, then only S.P. Vigilance submitted his report to Director Vigilance. Further it is submitted that the Investigating Officer had also called for a report from Basic Shiksha Adhikari, who had submitted his report dated 8.7.2017 in which he mentioned that he had already made payment for subsistence allowance in accordance with law. The Basic Shiksha Adhikari had also written in his letter dated 5.7.2017 that the matter was placed before respondent No. 7 for payment of 3/4th of the salary as subsistence allowance and direction had already been given for the payment of the same in accordance with law. 5. It is further submitted that the matter was pending before the respondent No. 7 and only he had the authority for payment of the said subsistence allowance for which he demanded Rs. 50,000/-, then the complaint was made by the petitioner to the Director Vigilance and he was, accordingly, arrested in trap. Further it is submitted that after considering all aspects of the matter and the draft final report of R.P. Singh and subsequent report of S.P. Vigilance, Agra, the Director Vigilance approved DFR for sanction, which was sent to the Government for granting sanction for prosecution. Further it is submitted that after considering all aspects of the matter and the draft final report of R.P. Singh and subsequent report of S.P. Vigilance, Agra, the Director Vigilance approved DFR for sanction, which was sent to the Government for granting sanction for prosecution. The State Government issued G.O. dated 6.4.2014 in which it was clearly mentioned that I.O. will submit report before the Director Vigilance within the schedule prescribed for the same and the Director Vigilance will consider the said report and if satisfied from the investigation, he would give approval for the D.F.R. and will send the matter to Secretary Vigilance for approval of sanction for prosecution. The State Government illegally without assigning any reason rejected the approved D.F.R. and directed for enquiry to be conducted by C.B.C.I.D. under Section 173 (8) Cr.P.C. and also directed for enquiry against members of the trap team and each member of Vigilance Establishment, who were related with the said case. The High Court in its judgment dated 29.1.2016 has already held that the order of investigation by different agency after filing of charge-sheet is nothing but a camouflage to protect the accused from offence. The said order has been passed due to political pressure exerted by respondent No. 7, who has close connection with ruling party. The said order has been passed in arbitrary manner without assigning any reason, hence is liable to be quashed. 6. In rebuttal, from the side of learned A.G.A., a counter-affidavit has been filed on behalf of Special Secretary, Sri Markandey Shahi, in which it has been stated that the petitioner has not impleaded the Department of Basic Shiksha. After due consideration, the C.B.C.I.D. had been instructed to hold an enquiry and entire facts of this case. In fact the respondent No. 7 had already apprehension that the petitioner could make a complaint against him to the Vigilance Department for getting illegal payment and for that he had already written a letter dated 3.10.2016 to S.P. Vigilance Agra. Further it is submitted that according to the provisions of Fundamental Rule 53(1)(ka)(i) of the Financial Hand Book Part-II, Part-2 to 4, the Accounts Officer of Basic Shiksha has not been authorised to take a decision regarding payment of subsistence allowance of any Assistant Teacher and that the power vested in this regard, only in Basic Shiksha Adhikari. Further it is submitted that according to the provisions of Fundamental Rule 53(1)(ka)(i) of the Financial Hand Book Part-II, Part-2 to 4, the Accounts Officer of Basic Shiksha has not been authorised to take a decision regarding payment of subsistence allowance of any Assistant Teacher and that the power vested in this regard, only in Basic Shiksha Adhikari. At the time of laying the trap proceedings, no matter was pending with the Accounts Officer of the said Department. The matter had already been forwarded by him to the Basic Shiksha Adhikari, Agra on 23.3.2017 for taking a decision thereon, therefore, the trap proceedings were not conducted in accordance with the procedure. Further it is submitted that no letter had been received from Deepak Rishi Gaur or Bhavani Singh and Shyam Singh Bhadauria, District President, Bhartiya Janata Party, Agra in Vigilance Cell, thus the allegation of the petitioner that political pressure was exerted in the matter by the respondent No. 7 was baseless. Further it is submitted that on the points, which were contained in letter dated 19.6.2017 and 28.6.2017 of Smt Labi Sharma wife of respondent No. 7, a supplementary report was called for vide letter dated 12.9.2017 and 16.10.2017 of the Vigilance Department. It is further submitted that in the supplementary report submitted by U.P. Vigilance Establishment on 22.12.2017 and the Final Report dated 12.7.2017, a number of irregularities were there, which are as follows : (I) The authority to sanction enhancement in the subsistence allowance of the petitioner did not vest in the Accounts Officer rather the same was vested in Basic Shiksha Adhikari and in accordance with the Fundamental Rule 53(1)(ka)(i) of the Financial Hand Book Part-II, Part-2 to 4 only after issuing an order of enhancement by the appointing authority, the concerned Khand Shiksha Adhikari is supposed to prepare the amendment slip as per G.O. dated 23.7.2012, which is further required to be submitted in the office of Accounts Officer alongwith order of Basic Shiksha Adhikari by the 25th of the month and thereafter, on the said basis the Finance Officer draws money from the treasury. Since no order had been passed by the Basic Shiksha Adhikari directing the Kahnd Shiksha Adhikari to enhance the subsistence allowance of the petitioner, no such amendment slip of subsistence allowance could be prepared by the Khand Shiksha Adhikari and hence there did not arise any question for the Accounts Officer to draw that amount and consequently, there was no occasion for lodging an F.I.R. against the respondent No. 7 under the Provision of PC Act. (II) The enquiry was not conducted by the Vigilance Establishment on the basis of facts because it was evident from the letter on 2.5.2017, of District Basic Shiksha Adhikari, Agra that the complaint with regard to non-enhancement of subsistence allowance of the petitioner remained pending with the Basic Shiksha Adhikari from 23.3.2017 to 1.5.2017 and reply to the letter of the Accounts Officer, Agra dated 23.3.2017 was given by Basic Shiksha Adhikari, Agra by his letter dated 2.5.2017 and on the same date the trap proceedings were conducted against respondent No. 7 by the Vigilance Establishment. (III) It was also evident that respondent No. 7 had already sent a letter to the S.P. Vigilance, Agra on 3.10.2016 that the petitioner could make a complaint against him with a view to pressurising him to make payment of subsistence allowance illegally, which was ignored by the Vigilance Establishment, which conducted the proceedings without getting the said complaint examined. (IV) In letter dated 25.11.2017 of the S.P. Vigilance Establishment, Agra addressed to District Basic Shiksha Adhikari, Agra, it is evident that an enquiry was being conducted by the District Basic Shiksha Adhikari, during which it came into light that the earlier Accounts Officer, the respondent No. 7 had got a CCTV camera installed in his office out of his own sources/money without seeking permission of any Competent Officer and that it was evident from the letter of S.P. Vigilance, Agra that the said CCTV camera had been damaged by the members of the trap team. 7. Therefore, the recommendation of prosecution of respondent No. 7 was rejected and it was decided that the whole matter be enquired by C.B.C.I.D. under Section 173(8) of Cr.P.C. 8. Hence it was finally argued that it was wrong to say that there was no reason disclosed in rejection of the prosecution sanction by the State Government in the matter. 9. Therefore, the recommendation of prosecution of respondent No. 7 was rejected and it was decided that the whole matter be enquired by C.B.C.I.D. under Section 173(8) of Cr.P.C. 8. Hence it was finally argued that it was wrong to say that there was no reason disclosed in rejection of the prosecution sanction by the State Government in the matter. 9. Two rejoinder-affidavits have been filed by the petitioner, one against the counter-affidavit of respondent No. 7 and the other against the counter-affidavit of the Special Secretary, Home which contained nothing much except reiteration of what has already been stated by him in the affidavit filed in support of the main petition, which need not be reproduced again. 10. After having perused the entire record and having heard arguments of both the sides, we find that this matter has arisen out of a complaint of the petitioner against opposite party No. 7 to the effect that he was asking an amount Rs. 50,000/- as bribe for clearing the enhanced subsistence allowance of the petitioner because the departmental enquiry against the petitioner could not be concluded within the prescribed period of three months, which entitled him to get enhanced subsistence allowance at the rate of 3/4th of the salary. It was alleged that a trap was laid by the Deputy S.P., Vigilance Establishment, Lucknow, Sri Sarad Chandra Sharma, who had arrested respondent No. 7 with the help of trap team, receiving Rs. 50,000/- from the complainant-petitioner. It is also apparent that the matter was investigated and charge-sheet was submitted by the Vigilance Establishment in this case against respondent No. 7 and the same was forwarded to the State Government with the request to sanction prosecution of the respondent No. 7 and upon its consideration, by the impugned order, the said prosecution sanction was refused, noticing a number of infirmities/irregularities committed by the vigilance trap team and it was also directed simultaneously, in the impugned order dated 25.4.2018 that the matter requires to be further investigated by C.B.C.I.D. under Section 173(8) of Cr.P.C. alongwith the conduct of the members of the trap team, who were involved in laying of trap in the present case to ascertain as to whether their conduct was in accordance with the law or did it suffer from any bias, which was required to be completed within a period of three months. 11. 11. We further find that the petitioner has been reinstated in service by order dated 31.5.2017 of District Basic Shiksha Adhikari, Agra, photo copy of which has been provided by the counsel for the petitioner and the same is taken on record. It further comes to light that a number of reasons have been mentioned on the basis of which the Government appears to have refused granting prosecution sanction against the respondent No. 7, which cannot be done away with/ignored easily. The relevant points appear to have been raised in that the power of enhancement of the subsistence allowance of the petitioner did not vest in respondent No. 7 according to the Fundamental Rule 53(1)(ka)(i) of the Financial Hand Book Part-II Part-2 to 4 and the same vested in the District Basic Shiksha Adhikari with whom the matter remained pending for a long time. It has been clarified that from the side of respondent Nos. 1 and 7 that no matter was pending with the respondent No. 7 on the date of holding the trap proceedings rather the same was pending with the District Basic Shiksha Adhikari and only after the order issued by Basic Shiksha Adhikari regarding enhancement of the subsistence allowance of the petitioner, the Khand Vikas Adhikari would prepare his enhanced pay slip and which would further be forwarded to Accounts Officer for drawing the amount of salary/subsistence allowance of the petitioner from the treasury to be paid to the petitioner. Therefore, there seems to be reasonable substance in the line of argument taken up by the above respondents. 12. In these circumstances, we do not find any ground to quash the impugned order dated 25.4.2018. It may also be mentioned here that in further investigation as directed by the Government vide impugned order to be done by C.B.C.I.D. there could be possibility of reiteration of the charge-sheet submitted against the respondent No. 7 and there could also be a possibility of closer report being submitted. In case, the closer report is submitted, the competent Court may be approached by the petitioner to get the same set aside by moving a protest petition and at that stage, the said Court may also take into consideration earlier evidence gathered by the Investigating Agency during submission of the Charge-sheet against the respondent No. 71 before arriving on a conclusion. 13. 13. In view of the above, we uphold the impugned order dated 25.4.2018 and direct to the Investigating Agency to conclude the further investigation within a period of two months from today, positively and submit the police report before the competent Court. 14. The present writ petition is, accordingly, disposed of.