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2019 DIGILAW 2039 (JHR)

Ajay Kumar Gond v. State of Jharkhand

2019-12-17

RAJESH SHANKAR

body2019
ORDER : 1. The present writ petition has been filed for quashing the order dated 20.09.2019 passed by the learned Lokayukta in Complaint Case No. 01/LOK(Utpad)/01/2017 whereby the office has been directed to forward a copy of the order to the Director General of Police, Anti-Corruption Bureau (ACB), Ranchi along with the complaint as well as the last inquiry report submitted by the Superintendent of Police, ACB vide letter no. 12329 dated 30.08.2019 with recommendation to lodge the F.I.R. against the petitioner and has also recommended for further investigation against him. 2. The factual background of the case as stated in the writ petition is that one Dilip Yadav (respondent no. 4) made a complaint before the Lokayukta alleging that the petitioner has amassed assets disproportionate to his known source of income and requested for initiation of a proceeding against him. The learned Lokayukta called for a preliminary inquiry report from Additional Director General of Police, ACB, Ranchi. Thereafter, the DIG/ACB, Ranchi conducted an inquiry into the matter and submitted the report to the learned Lokayukta vide letter no. 1377 dated 01.02.2019 showing 97.10% disproportionate income of the petitioner. In the meantime the petitioner filed representation in the office of the learned Lokayukta for providing an opportunity to represent his case, whereafter he was given a copy of the complaint as well as the preliminary inquiry report so as to enable him to submit reply. Thereafter, the petitioner submitted the reply wherein he denied all the allegations levelled against him. On the first date, learned counsel for the petitioner apprised the learned Lokayukta about the errors made in calculation of income and expenditure. Whereafter, the learned Lokayukta directed the investigating agency to make recalculation of the petitioner’s assets. After recalculation, the Superintendent of Police, ACB submitted second report by reducing the disproportionate assets of the petitioner from 97.10% to 95.14%. The petitioner again agitated before the Lokayukta that there were serious irregularities in the calculation of income and expenditure of the petitioner and his family members. The learned Lokayukta against asked the ACB to make recalculation. Thereafter the third inquiry report was submitted by the ACB showing the disproportionate assets of the petitioner as 87.86%. The learned Lokayukta vide impugned order dated 20.09.2019 observed that a prima-facie case of disproportionate assets to the extent of 87.86% against the petitioner was made out. The learned Lokayukta against asked the ACB to make recalculation. Thereafter the third inquiry report was submitted by the ACB showing the disproportionate assets of the petitioner as 87.86%. The learned Lokayukta vide impugned order dated 20.09.2019 observed that a prima-facie case of disproportionate assets to the extent of 87.86% against the petitioner was made out. He also made recommendation for taking further action against the petitioner. 3. Learned counsel for the petitioner submits that a copy of the third inquiry report was never served to the petitioner. Had the copy of the inquiry report been furnished to the petitioner, he would have got appropriate chance to verify as to whether there were further errors in the said report submitted by the ACB. However, in absence of a copy of the report, the petitioner is not in a position to ascertain as to whether the ACB committed further infirmities in making calculation of income and expenditure of the petitioner and his family members. The learned Lokayukta has observed in the impugned order dated 20.09.2019 that none of the persons from whom the petitioner claims to have taken loan appeared before him to support his contention without appreciating the fact that no summon was ever issued to them to lead evidence. It was incumbent upon the learned Lokayukta to furnish a copy of the third/final inquiry report submitted by the ACB vide letter no. 12329 dated 30.08.2019 to the petitioner. Non-furnishing of the copy of the said report to the petitioner clearly suggests that he was not provided sufficient opportunity of hearing by the learned Lokayukta and the same is in violation of Section 10 of the Jharkhand Lokayukta Act, 2001 (in short ‘the Act 2001’). It is further submitted that the finding of the learned Lokayukta to the extent that the office of Lokayukta is not a court, is a perverse finding as the provisions of Section 11(2) of the Act, 2001 confers the powers of the civil court to the Lokayukta including the power to summon and enforce the attendance of any person and to examine him on oath. The learned Lokayukta also committed an error in observing that only calculation mistakes of income and expenditure can be corrected by the office of the learned Lokayukta and the same has seriously prejudiced the case of the petitioner as the finding of the investigating agency became a gospel truth which has not been properly examined by the learned Lokayukta. It is also submitted that the learned Lokayukta has also transgressed his powers conferred under the Act, 2001 by holding inter-alia in the impugned order that the petitioner’s case is a fit one where an F.I.R. should be instituted against him and the investigating agency has been directed to investigate the case at length and to take appropriate action. The learned Lokayukta has also committed an error in not taking into consideration the entire income of Smt. Rani Devi - Wife of the petitioner earned through the house rent for the check period. From the computation chart for the period 2018-19, it would be evident that Smt. Rani Devi has been shown to have earned an amount of Rs. 1,02,000/- from house rent. However, the investigating agency as well as the learned Lokayukta failed to take the said income of Smt. Rani Devi into consideration. Similarly, it would also be evident from the computation chart for the year 2017-18 that the petitioner’s wife had earned Rs. 1,02,000/- from house rent, but the same has not been taken into consideration while arriving at the computation of the disproportionate assets of the petitioner. So far as the assessment years 2014-15, 2015-16 and 2016-17 are concerned, the income of petitioner’s wife to the extent of Rs. 3,60,000/- each year has also not been taken into consideration by the investigating agency or the learned Lokayukta. As such, it is evident that various lawful income of the petitioner as well as his wife-Smt. Rani Devi through house rent and the loan taken from 11 of his relatives, have also not been considered while calculating the disproportionate assets of the petitioner. The Lokayukta has completely ignored the aforesaid aspects while passing the impugned order and thereby erroneously directed the investigating agency to institute an F.I.R. and to investigate the case of the petitioner at length and submit a report before him within a period of three months from the date of receipt of the letter. 4. Per contra, the learned counsel for the respondent no. 4. Per contra, the learned counsel for the respondent no. 2 submits that the present matter relates to disproportionate assets amassed by a public servant i.e. the petitioner and as such the same comes under the purview of Prevention and Corruption Act, 1988 (hereinafter to be referred as ‘the Act 1988’). The Anti-Corruption Bureau is a specialized wing of the State Government to deal with such matters as is done by the Central Bureau of Investigation in the matters of the central government employees. The present writ petition has been filed just to delay the matter and to create hindrance in the proceeding to be initiated by the ACB on following the due procedure of law as per resolution of the government of Jharkhand dated 07.08.2015. It is further submitted that the learned Lokayukta has conducted detailed hearing which continued for several dates and all the contentions raised on behalf of the petitioner were considered and thereafter the impugned order has been passed by the learned Lokayukta and hence, the same does not need any interference. It is also submitted that the Government of Jharkhand through Cabinet Secretariat and Vigilance Department has issued resolution dated 07.08.2015 stipulating at Clause-22 of the same that the criminal cases instituted under the provisions of the Act, 1988 by Anti-Corruption Bureau as well as the cases referred by the State of Jharkhand/ Hon’ble Court/Hon’ble Lokayukta are required to be registered as PE Cases for investigation whereas Anti-Corruption Bureau functions independently in trap cases of the public servants. So far as the disproportionate assets of public servants as well as abuse of official position are concerned, the cases are to be instituted after due permission of the competent authority i.e. the Chief Secretary through Vigilance Commissioner in cases of Class-I public servants and the Vigilance Commissioner for Class-II public servants and equivalent posts. In the cases of the government employees of Class-III and Class-IV categories, the Head of the Anti-Corruption Bureau is the competent authority. It is thus submitted by the learned counsel for the respondent no. 2 that the petitioner has failed to make out any case for interference of this Court under writ jurisdiction and therefore, the writ petition is liable to be dismissed. 5. Heard the learned counsel for the parties and perused the materials available on record. 6. It is thus submitted by the learned counsel for the respondent no. 2 that the petitioner has failed to make out any case for interference of this Court under writ jurisdiction and therefore, the writ petition is liable to be dismissed. 5. Heard the learned counsel for the parties and perused the materials available on record. 6. The main submission of the learned counsel for the petitioner is that the learned Lokayukta has not followed the due procedure which was required to be adopted while making recommendation for taking appropriate action against the public servant i.e. the petitioner. In support of the said contention, it has been contended that since there were infirmities in the first two inquiry reports submitted by the ACB, the learned Lokayukta called for the third inquiry report from the said investigating agency. However despite receipt of the third inquiry report, the learned Lokayukta without serving a copy of the same to the petitioner made recommendation for taking action against him which is arbitrary and illegal. On the contrary, it has been contended on behalf of the respondent no. 2 that the petitioner was provided sufficient opportunity of hearing by the learned Lokayukta before passing the impugned order and the same is perfectly justified. 7. On perusal of the record, it would appear that on making a complaint by the respondent no. 4, the learned Lokayukta directed the ACB for making preliminary inquiry whereupon an inquiry was conducted and the report was submitted showing the disproportionate assets of the petitioner to the extent of 97.10% of his known source of income. The said report along with the complaint was provided to the petitioner which was duly replied by him. Thereafter, the petitioner appeared before the learned Lokayukta through his counsel and explained his case and having found certain infirmities in calculation made by the ACB in computation of the disproportionate assets of the petitioner, the learned Lokayukta directed the ACB to submit another report. The ACB thereafter submitted the second inquiry report showing disproportionate assets of the petitioner to the extent of 95.14% which was also replied by the petitioner whereafter having found certain infirmities, the learned Lokayukta again directed the ACB to submit another report. Accordingly, the third report was submitted by the ACB by reducing the disproportionate assets of the petitioner to the extent of 87.86% of his known source of income. Accordingly, the third report was submitted by the ACB by reducing the disproportionate assets of the petitioner to the extent of 87.86% of his known source of income. On this occasion, the learned Lokayukta did not feel it necessary to supply the copy of the third inquiry report to the petitioner and passed the impugned order dated 20.09.2019 recommending for further action against the petitioner. It has been specifically observed in the impugned order that during the preliminary inquiry, the petitioner was given sufficient opportunity to explain the allegation and only thereafter the report was prepared by the ACB. It has also been observed inter-alia that during the inquiry, neither any evidence was adduced by the petitioner nor any person on his behalf appeared before the inquiry officer to corroborate the fact that the petitioner had taken loan from some of his relatives. The learned Lokayukta has also observed in the impugned order that the allegation to the extent that the petitioner was found to have amassed 87.86% assets disproportionate to his known source of income, has been prima-facie made out. 8. The Hon’ble Supreme Court in the case of Rang Nath Mishra vs. State of U.P. and Others, (2015) 8 SCC 117 , has held as under:- “20. While it is correct that the Report of the Lokayukta was submitted without affording any opportunity of personal hearing to the appellant and the request for time for submission of the documents made by the appellant on 29-9-2011 was refused by the Lokayukta, the said facts cannot constitute a good and sufficient basis for this Court to find fault with the conduct of the proceedings by the Lokayukta, U.P. in view of the provisions of Section 10(3) of the Act which, as already noticed, leaves to the Lokayukta the discretion to adopt such procedure as may be considered appropriate in the given facts of the case. No prejudice also has been caused to the appellant who had taken part in the proceedings at every stage. The refusal to grant further time to the appellant, an issue over which some grievance has been raised, is a matter of discretion vested in the Lokayukta and any decision thereon either way cannot be a legitimate basis for interference.” 9. No prejudice also has been caused to the appellant who had taken part in the proceedings at every stage. The refusal to grant further time to the appellant, an issue over which some grievance has been raised, is a matter of discretion vested in the Lokayukta and any decision thereon either way cannot be a legitimate basis for interference.” 9. Section 10(3) of the Act, 2001 provides that the procedure for conducting any investigation shall be such as the Lokayukta considers appropriate in the facts and circumstances of the case. Thus, the petitioner cannot claim any particular mode of investigation required to be followed by the learned Lokayukta. The petitioner has, in fact, participated at every stage of the proceeding and has explained his case by filing reply. Thus, I am of the considered view that no prejudice has been caused to the petitioner by the mere fact that the third inquiry report was not served to him particularly when he was provided sufficient opportunity to explain his case both at the stage of inquiry by the ACB as well as before the Lokayukta. The functions of the Lokayukta is investigative in nature and thus no civil consequence shall follow against his action. 10. Learned counsel for the petitioner has also contended that the learned Lokayukta has exceeded his jurisdiction in directing the ACB to lodge F.I.R. against the petitioner. To appreciate the said contention, I have carefully perused the last part of the impugned order passed by the learned Lokayukta from which it appears that the impugned order and the final (third) inquiry report have been forwarded to the Director General of Police, ACB, Ranchi making recommendation for taking further action. It has also been recorded in the impugned order that general procedure is that if a case of disproportionate assets is found in preliminary inquiry, the next step is to lodge FIR and thus the same action in the present case has also been recommended. 11. It has also been recorded in the impugned order that general procedure is that if a case of disproportionate assets is found in preliminary inquiry, the next step is to lodge FIR and thus the same action in the present case has also been recommended. 11. Since, a Bench of this Court in the case of Shahank Kumar Sinha vs. The Office of Hon'ble Lokayukta, Jharkhand and Others, W.P. (C) No. 263 of 2019 has held that the learned Lokayukta is not empowered under the Act, 2001 to make recommendation for lodging an FIR, the part of the impugned order whereby recommendation has been made to the Director General of Police, ACB, Ranchi for lodging FIR against the petitioner is quashed/set aside. However, mere such observation does not make the entire impugned order passed by the learned Lokayukta to be inoperative and the competent authority is bound to consider the same. 12. Under the aforesaid facts and circumstances, the Director General of Police, ACB, Ranchi is directed to take appropriate action in the matter as per the reports of the ACB as well as the impugned order passed by learned Lokayukta dated 20.09.2019 in accordance with law. 13. The present writ petition is accordingly disposed of with aforesaid observation and direction. 14. I.A. No. 10255 of 2019 also stands disposed of.