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2019 DIGILAW 1927 (ALL)

Yamuna Prasad Yadav v. State of U. P.

2019-08-08

SAURABH SHYAM SHAMSHERY, SHASHI KANT GUPTA

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ORDER : 1. Heard Sri Shashi Nandan, learned Senior Counsel assisted by Shri Babu Ram Yadav, learned counsel for the petitioner, learned Standing Counsel for respondents and perused the record. 2. The petitioner has retired from the post of Gram Panchayat Adhikari, Block Bahadurpur, District Prayagraj on 30.06.2019. On 03.07.2019, a news was published in the Hindi news paper "Dainik Jagran" with heading "Rishwat Lete ADO Ka Video Viral, Afsaro me Hadkamp". In the newspaper, it was mentioned that the petitioner before his retirement had demanded and accepted bribe of Rs. 20,000/- from a Pradhan and his act was recorded by a mobile phone and the said video was circulated on the social media. 3. It has been alleged by the petitioner that subsequent to this news, payment of retiral benefits of the petitioner has also been stopped without any prior information. 4. Taking cognizance of the aforesaid news, the District Magistrate, Prayagraj directed the Additional District Magistrate, Prayagraj to conduct an inquiry in regard to aforesaid news and to submit a report. The Additional District Magistrate, Prayagraj issued notice to petitioner and sought his explanation on the said viral news. In pursuance of the notice, petitioner submitted an explanation dated 06.07.2019 wherein he has denied all the allegations made against him in the news as well as in the viral video. The petitioner also submitted that the Gram Pradhan as well as other persons have submitted affidavit to the effect that no such incident took place as alleged in the newspaper. The petitioner also made a statement before Additional District Magistrate, Prayagraj on 06.07.2019 wherein he has denied the allegations made in the news as well as in the viral video. 5. Smt. Sapna, Gram Pradhan has gave statement before the A.D.M., Prayagraj on 06.07.2019 wherein she has accepted that the petitioner has taken Rs. 20,000/- from her husband for construction of toilet under Swachh Bharat Mission at her place, however, she has denied that she recorded the video. 6. Shri Gore Lal, husband of Smt. Sapna also gave statement before A.D.M. Prayagraj on 06.07.19 wherein he has also accepted that the petitioner has taken Rs. 20,000/- from him. However, he denied that he recorded the video. 7. 6. Shri Gore Lal, husband of Smt. Sapna also gave statement before A.D.M. Prayagraj on 06.07.19 wherein he has also accepted that the petitioner has taken Rs. 20,000/- from him. However, he denied that he recorded the video. 7. The A.D.M. City Prayagraj after considering the incident shown in the video clip, statement recorded as well as reports submitted by the Panchayat Raj Officer, Prayagraj as well as Block Development Officer, Block-Bahadurpur, Prayagraj in regard to the earlier misconduct of the petitioner prepared his report dated 6.7.2019 whereby the A.D.M. recommended to lodge an FIR against the petitioner. In the inquiry report, the A.D.M. has taken note of the fact that earlier an FIR was lodged against the petitioner and in pursuance of the said FIR, the petitioner remained in jail for certain period. 8. The inquiry report dated 6.7.2019 prepared by the Additional District Magistrate, Prayagraj was communicated to the District Magistrate, Prayagraj. On the basis of the said inquiry report, the District Magistrate, Prayagraj, vide order dated 8.7.2019 directed the District Development Officer, Prayagraj to lodge an FIR against the petitioner. The District Development Officer further directed the District Panchayat Raj Officer, Prayagraj, vide letter dated 15.7.2019 to lodge an FIR against the petitioner. The Zila Panchayat Raj Officer, Prayagraj further directed the Additional Development Officer, vide letter dated 27.7.2019 to lodge an FIR against the petitioner. The above mentioned orders dated 8.7.2019, 15.7.2019 and 27.7.2019 are impugned in the present petition. 9. Shri Shashi Nandan, learned Senior Counsel submitted that the entire inquiry conducted against the petitioner by the department and direction for lodging FIR against the petitioner is illegal as the respondents have no authority to lodge an FIR against the petitioner. The petitioner has already retired before the initiation of such inquiry and thus, there is no relationship of Master and servant, and as such the direction for initiating inquiry as well as direction for lodging an FIR is patently illegal. Learned Senior counsel further submitted that the affidavit filed on behalf of the Pradhan and others wherein allegations made in the video have been denied have not been taken into consideration and the inquiry has been conducted in arbitrary manner. Learned Senior counsel further submitted that the affidavit filed on behalf of the Pradhan and others wherein allegations made in the video have been denied have not been taken into consideration and the inquiry has been conducted in arbitrary manner. Learned Senior Counsel also relied upon the Second Proviso of Section 8 of the Prevention of Corruption Act, 1988 that in case, a person is aggrieved regarding the offence relating to demand of bribe by a public servant, he should inform the concerned authorities within a period of 7 days. However, in the present matter, the alleged aggrieved person has not approached any authority to ventilate his grievances, therefore the entire exercise undertaken by the respondents is illegal and liable to be quashed. 10. Learned Standing Counsel on behalf of the respondent has submitted that there is no bar to lodge an FIR against any retired employee. The direction of lodging an FIR is passed after conducting an inquiry wherein the statement of the petitioner as well as the person shown in the video, who gave bribe to the petitioner have been recorded and only after considering the materials, A.D.M. Prayagraj come to the conclusion that a case is made out against the petitioner for lodging an FIR. Learned counsel further submitted that still, no FIR is lodged and the petitioner has remedy available under the provisions of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) to challenge the FIR as and when an FIR is lodged against him. Therefore, the present writ petition is premature and liable to be dismissed. 11. It is well settled that a public servant cannot be removed from his office without prior sanction of the competent authority only when he holds the office, but once he retires or superannuates or ceases to be in his office, then no sanction of the competent authority is required to prosecute him for the offences committed by him under the colour of his office. It is relevant at this stage to quote the following paragraphs 32, 33, 34, of the judgment passed by the Hon'ble Supreme Court in the matter of Abhay Singh Chautala V. CBI reported in (2011) 7 SCC 141 that:- "32. It is relevant at this stage to quote the following paragraphs 32, 33, 34, of the judgment passed by the Hon'ble Supreme Court in the matter of Abhay Singh Chautala V. CBI reported in (2011) 7 SCC 141 that:- "32. Same argument was tried to be raised on the question of plurality of the offices held by the public servant and the doubt arising as to who would be the sanctioning authority in such case. In the earlier part of the judgment, we have already explained the concept of doubt which is contemplated in the Act, more particularly in Section 19(2). The law is very clear in that respect. The concept of 'doubt' or 'plurality of office' cannot be used to arrive at a conclusion that on that basis, the interpretation of Section 19(1) would be different from that given in Antulay's case (cited supra) or Prakash Singh Badal v. State of Punjab (cited supra). We have already explained the situation that merely because a concept of doubt is contemplated in Section 19(2), it cannot mean that the public servant who has abused some other office than the one he is holding could not be tried without a sanction. The learned senior counsel tried to support their argument on the basis of the theory of "legal fiction". We do not see as to how the theory of "legal fiction" can work in this case. It may be that the appellants in this case held more than one offices during the check period which they are alleged to have abused; however, there will be no question of any doubt if on the date when the cognizance is taken, they are not continuing to hold that very office. The relevant time, as held in S.A. Venkataraman Vs. State (cited supra), is the date on which the cognizance is taken. If on that date, the appellant is not a public servant, there will be no question of any sanction. If he continues to be a public servant but in a different capacity or holding a different office than the one which is alleged to have been abused, still there will be no question of sanction and in that case, there will also be no question of any doubt arising because the doubt can arise only when the sanction is necessary. In case of the present appellants, there was no question of there being any doubt because basically there was no question of the appellants' getting any protection by a sanction. 33. We do not, therefore, agree with learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit arguing for the appellants, that the decision in Antulay's case (cited supra) and the subsequent decisions require any reconsideration for the reasons argued before us. Even on merits, there is no necessity of reconsidering the relevant ratio laid down in Antulay's case (cited supra). 34. Thus, we are of the clear view that the High Court was absolutely right in relying on the decision in Prakash Singh Badal v. State of Punjab (cited supra) to hold that the appellants in both the appeals had abused entirely different office or offices than the one which they were holding on the date on which cognizance was taken and, therefore, there was no necessity of sanction under Section 19 of the Act as held in K. Karunakaran v. State of Kerala (cited supra) and the later decision in Prakash Singh Badal v. State of Punjab (cited supra). The appeals are without any merit and are dismissed." (emphasis supplied) 12. We have considered the rival submissions and perused the record. Admittedly that the petitioner got retired even before the news of video was published in the newspaper. However, the respondents after considering the replies made on behalf of the petitioner as well as of concerned parties have come to the conclusion that an FIR should be lodged against the petitioner for committing offence. As the petitioner has unable to produce any record to show that the FIR has been lodged against him, therefore, we are of the considered opinion that the writ petition is premature. So far as filling of an FIR after retirement is considered, learned Senior Counsel for the petitioner has failed to substantiate his arguments to submit that after retirement, no FIR can be lodged. There is no bar in lodging the FIR against the public servant who has retired, in case cognizable offence is disclosed. Against the lodging of an FIR, the petitioner has all the remedy available in the Code of Criminal Procedure. There is no bar in lodging the FIR against the public servant who has retired, in case cognizable offence is disclosed. Against the lodging of an FIR, the petitioner has all the remedy available in the Code of Criminal Procedure. The Constitution Bench of the Supreme Court in Lalita Kumari vs. Government of U.P. and others reported in (2014) 2 SCC 1 has held that the registration of First Information Report is mandatory under Section 154 of the Cr.P.C. if the information discloses commission of a cognizable offence. The lodging of FIR cannot be refused on the ground of the status of the complaint or of an accused. Therefore, the impugned direction for lodging an FIR in the present matter cannot be held illegal on the ground that the such direction has been passed by a Government Officer after the petitioner has retired. Lodging of FIR cannot be refused on the ground that there is no relationship of Master and Servant. Conclusion/Direction passed by Supreme Court in Lalita Kumari (supra) are as follows:- "Conclusion/Direction:- 120. In view of the aforesaid discussion, we hold: 120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first information forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each cases. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. 120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above." 13. In the present matter, Learned Senior Counsel for the petitioner has failed to show any provision which imposes bar on lodging of an FIR against any retired Government officer. Therefore, we do not find any merit in the present writ petition. However, the petitioner is at liberty to take legal recourse if so advised as provided under the law for redressal of his grievances. 14. With the aforesaid observations, the writ petition stands dismissed.