Court No. - 46

Case :- CRIMINAL MISC. WRIT PETITION No. - 9873 of 2010

Petitioner :- Vinayendra Nath Upadhyay And Others

Respondent :- State Of U.P. & Ors.

Petitioner Counsel :- Rituvendra Singh,A.K.Pandey

Respondent Counsel :- Govt. Advocate

Connected with

Criminal Misc. Writ Petition No. 9674 of 2010

Lallan Prasad................................................................Petitioner

Versus

State of UP and others...............................................Respondents

Connected with

Criminal Misc. Writ Petition No. 9871 of 2010

Madhusudan Pandey and another..................................Petitioners

Versus

State of UP and others...............................................Respondents

Connected with

Criminal Misc. Writ Petition No. 9567 of 2010

Sanjay Kumar Singh and another................................Petitioners

Versus

State of UP and others...............................................Respondents

Connected with

Criminal Misc. Writ Petition No. 9992 of 2010

Shiva Nand Tiwari and another....................................Petitioners

Versus

State of UP and others...............................................Respondents

Connected with

Criminal Misc. Writ Petition No. 10676 of 2010

Amar Deep Singh and others.....................................Petitioners

Versus

State of UP and others...............................................Respondents

Connected with

Criminal Misc. Writ Petition No. 10731 of 2010

Brij Nath Sharma and another........................................Petitioners

Versus

NeutralwCitationwNo.w-w2010:AHC:90657-DB

State of UP and others...............................................Respondents

Connected with

Criminal Misc. Writ Petition No. 11172 of 2010

Kashi Nath Singh and another........................................Petitioners

Versus

State of UP and others...............................................Respondents

Connected with

Criminal Misc. Writ Petition No. 11572 of 2010

Punita Mishra..................................................................Petitioner

Versus

State of UP and others...............................................Respondents

Connected with

Criminal Misc. Writ Petition No. 11790 of 2010

Dinesh Kumar Yadav......................................................Petitioner

Versus

State of UP and others...............................................Respondents

and

Criminal Misc. Writ Petition No. 11791 of 2010

Lalit Kumar Pandey........................................................Petitioner

Versus

State of UP and others...............................................Respondents

Hon'ble Amar Saran,J.

Hon'ble S.C. Agarwal,J.

( Delivered by Hon'ble Amar Saran, J )

All the aforesaid connected writ petitions have been sent to this Bench headed

by one of us (Amar Saran, J.) by order of Hon'ble the Chief Justice dated

5.7.2010.

We have heard Sri Umesh Narain Sharma, Sri V.P. Srivastava, and Sri G.S.

Chaturvedi, Senior Advocates for the petitioners in some of the petitions, the

learned counsel for the other petitioners Punita Mishra, Dinesh Kr. Yadav,

Shivanand Tiwari, , Amar Deep Singh and others, Lalit Kumar Pandey, Lallan

Prasad have also raised some submissions. Other counsel have adopted their

contentions. We have also heard Sri A.K. Sand, and Sri Vikas Sahai, learned

Additional Government Advocates for the State and have perused the records

of the writ petitions, and have also summoned and seen the records in Civil

Misc. Writ Petition No. 23250 of 2010, Special Appeal ( Defective ) No. 610

of 2010 and in Civil Misc. Contempt Petition No. 1724 of 2004.

The petitions are an offshoot of orders passed by Hon'ble Arun Tandon, J on

13.5.2010 in Civil Misc. Writ petition No. 23250 of 2010, wherein the learned

single Judge observed as follows:

"Shri M.C. Chaturvedi, Chief Standing Counsel is present in the Court. He submits that the

matter is in active consideration of the State Government. It is stated that certain disciplinary

proceedings have been initiated against the persons responsible. He further submits that the

embezzlement of the money from the GPF account is not in dispute, however the

quantification is to be done.

This Court is of the firm opinion that for the embezzlement of the public money, criminal

liability does occurs. Therefore, First Information Report has to be lodged against the persons

guilty and they must be brought to book.

Let necessary be done by 24.5.2010.

Put up as unlisted on 24.5.2010."

In an earlier order dated 5.5.2010 in writ petition No. 23250 of 2010 Hon'ble Arun Tandon, J.

observed as follows: "Two aspects of the matter are involved, (a) how the 12 crores of rupees,

which have been deposited by the teachers and employees in the hope that on retirement they

will get the money encashed from the said General Provident Fund and survive during old age,

is to be recouped, inasmuch as ultimately such teachers and staffs would suffer if the money is

not restored, and (b) no fraudulent withdrawal from the Government Treasury through the

office of the District Inspector of Schools, Ballia is prima facie possible from the General

Provident Fund unless officers and employees working in the aforesaid two offices collude

with the private management and the person concerned."

Pursuant to the aforesaid orders of this Court, the District Inspector of

Schools, Ballia lodged an FIR on 23.5.2010 at case crime No. 271 of 2010,

under sections 409, 467, 468, 471, 419, 420 IPC, police station Kotwali,

district Ballia. The said FIR which nominates the then District Inspector of

Schools (DIOS), Sri Brijnath Pandey, Accounts Officer, Sri Kamla Kant and

Accounts Clerk, (the petitioner Lallan Prasad, in Cr. Writ Petition No. 9674 of

2010), and the teaching and non-teaching employees in some aided secondary

institutions in Ballia numbering 47, and which also implicates the then

managers and principals of the said institutions, has been challenged by the

petitioners in the bunch of petitions before us.

The FIR mentioned that it was being registered pursuant to the order of the

High Court in Writ-A No. 23250 of 2010. It was mentioned in the FIR that

during the period October 2005 and April 2006 the Principals and Managers

of the non-government aided secondary and higher secondary colleges at

Ballia entered into a criminal conspiracy with certain teachers and non-

teaching staff of their institutions and the then District Inspector of Schools,

Accounts Officer and the Accounts Clerk with the objective of embezzling

public money. Forged documents were manufactured with the aim of illegally

paying salaries to teaching and non-teaching employees whose appointments

were unauthorised after showing false dates of appointments. Arrears were

paid without authorization from the competent authority, and funds meant for

the GPF accounts were diverted for distribution as arrears of salary. The

details of the concerned teaching and non-teaching employees, and the illegal

payments received by each, and the role of the aforementioned DIOS,

accounts officer and clerk, and the Principals and Managers and some

illustrations of the modus operandi adopted at the concerned institutions in

Ballia are given in an audit report which was conducted by an Audit team of

the Education Directorate Allahabad, pursuant to earlier complaints, and is

annexed to the FIR. The FIR and the audit report further show that in some

instances the college records were dishonestly removed to hamper audit, in

other cases the teaching and non-teaching employees got payments made in

furtherance of their conspiracy with the aforesaid educational authorities

without even producing the relevant papers from the College. In a case the

GPF amount standing to the credit of a regular teacher was unauthorizedly

withdrawn by collusively affixing the photograph of another person which

was verified by the principal of the institution (Langtu Baba Inter College,

Harihankala), and the withdrawal was approved by the principal and the

manager (the then DIOS Brajnath, who was acting as the manager) after

forged ledgers were got prepared, which bore the signatures of the college

principal and the then accounts officer and the accounts clerk (petitioner

Lallan Prasad, in Cr. Misc. Writ Petition No. 9674 of 2010) at the DIOS

office.

It was submitted by Sri V.P. Srivastava and some other learned counsel for

the petitioners that the teaching and non teaching employees had been validly

appointed and that there were orders of the High Court in different writ

petitions validating their appointments or directing either payment of salary or

to consider their representations within a stipulated period of time. Some of

these orders have even been annexed.

Furthermore in Civil Misc. Contempt Petition No. 1724 of 2004 an order

dated 12.7.05 was passed directing payment of salaries to the petitioners in

whose cases final orders had been issued in the writ petitions filed by them.

This Contempt was filed to ensure compliance of an order dated 25.2.04

passed in C.M.W.P. No. 25885 of 2003. Hence the petitioners could not be

faulted for receiving the salaries.

It may be noted that the said contempt petition was eventually dismissed by

an order dated 12.12.05.

Significantly in Civil Misc. Writ Petition No. 25885 of 2003, which was the

basis for the direction in the Civil Contempt, the single judge was looking at

the illegal and fraudulent appointments in the educational institutions at Ballia

where the matters had been handed over to the CBCID for investigation. The

CBCID had even recommended lodging of criminal cases and the salary of

329 employees had been with-held. The Director of Education (Secondary)

had found that 104 employees had approached the High Court and obtained

orders in writ petitions directing payments of salaries pending completion of

enquiry. It was also noticed in the said order dated 25.2.04 that the enquiry

had resulted in favourable reports for 75 employees. But significantly the

single Judge observed:

" I have perused the enquiry report submitted in respect of 75

teachers/employees, which has been forwarded to the State

Government. From this report, I find that the individual cases have not

been considered in detail. The interim order of this court for making

the payment of the salaries until the conclusion of the enquiry have

been found to be conclusive to validate the appointment. In some case,

casual observations have been made that the appointments are valid on

the ground that there are sanctioned posts available in the institution.

The report concerning sanction of posts and validity of the

appointments by following proper and due procedure have not been

considered and discussed. In the aforesaid facts and circumstances, I

find that the department must give due expediency to the matter and

each case must be considered individually. The enquiry officer must

record findings about each and every appointment separately. Where

the appointments are found valid immediate action must be taken for

restoration of payment of the salary. The department must not wait for

the entire matter to be considered. The decision may be taken at the

level of Director of Education. In case, he finds that the appointment

was valid. In any case, the entire enquiry must be concluded as

expeditiously as possible and not later than 3 months from today".

The issues and criteria that are to be considered in individual cases for

ad hoc appointments against substantive or short term vacancies, such

as the requirement to first fill up the available vacancies by

promotions, and only in the absence of eligible persons, by direct

recruitment, the need for intimation of vacancies to the Education

Services Commission through the DIOS, the time period allowed to

the Commission to appoint suitable candidates, before the

management could take steps for filling up vacancies, the need for

inviting applications for the vacancies through the employment

exchange and by publication in two local newspapers which have a

wide circulation in the State, the essential qualifications required for

different posts, the cases where prior or subsequent approvals by the

DIOS are needed, the position when a regular person is selected by the

Education Services Commission in the cases where an ad hoc

employee has been appointed, have been spelt out in depth by the Full

Bench of this Court in Kumari Radha Raizada and others v.

Committee of Management, Vidyawati Darbari Girls Inter College and

others,1994 (3) UPLBEC 1551, after considering the statutory

provisions contained in the U.P. Secondary Education Services

Commission and Selection Board Act, 1981, the U.P. Intermediate

Education Act, 1921, and the various U.P. Education Services

Commission (Removal of Difficulties) Orders.

In another Full Bench decision in Gopal Dubey v. District Inspector of

Schools, Maharajganj and another, 1992(2) AWC 962, interpreting the

provisions of section 9 of the U.P. High Schools and Intermediate

Education Colleges (Payment of Salaries of Teachers and other

Employees) Act 1971 it has been held that unless the post for which

the salary has been paid is approved by the State government (Director

of Education), the payments made by the management of the

institution to such employees will not be re-reimbursed by the State.

The individual appointments and payments made therefore needed to

be tested on the aforesaid criteria spelt out in the Full Bench decisions.

If it was found that the appointments did not meet the said criteria, as

they had simply been made or continued pursuant to orders of in the

High Court in pending or disposed of writ petitions, which gave

directions to consider the representations of the petitioners, or to pay

salaries or to show cause etc., and where regular persons had been

appointed by the Commission, then the ad hoc appointments made by

the managements needed to be set aside. Steps for seeking vacation of

single or division bench High Court orders in Civil Writs and

Contempt petitions which were in the teeth of the decision of the Full

Bench in Radha Raizada and statutory provisions, by filing Special

Appeals before the Division bench or the Supreme Court were

required. But it appears that these steps have deliberately not been

taken in a mala fide manner, and the petitioners and others may have

colluded with educational authorities for obtaining favourable orders.

It must be stated emphatically that in any

view of the matter, there could be

absolutely be no justification for

payment of salaries for such teachers

from the General Provident Fund, from

which as the Chief Standing Counsel

admitted before the Single Judge in Bhim

Singh's case, there had been illegal

withdrawals to the tune of Rs. 12 crores.

The said G.P.F. money is held in trust,

and the proper holders of the GPF will be

severely harmed if they are unable to

receive due payments at retirement or

otherwise. The DIOS in the contempt

petition could have pleaded inability to

comply with the order of the contempt

Judge, until budgetary allocation of

salaries were made by the State

government, or the management itself

could have made the necessary payments

from its own sources, if it was so

advised. Withdrawal of salaries from

funds earmarked for GPF of bona fide

employees could never be countenanced.

It was next submitted that the petitioners were merely teaching

and non teaching employees, managers and Principals of the

institutions concerned and were wholly unaware of the source

of the funds or that the disputed funds were earmarked for

G.P.F. Also the payments had been released by the DIOS,

Accounts officer and other educational authorities to save their

own skins in the contempt petition. The payments were not

made at the instance of the petitioners. Pressure was brought to

bear on the petitioners by the DIOS by orders dated

28/29.3.2006 and 18/20.4.2006 to submit the salary bills.

In our view considering the scale at

which the withdrawals have been made

from the GPF money, it is difficult to

believe that the petitioners were only

unwary and innocent recipients of the

money, and their hands were absolutely

clean. There was no need for the DIOS

and other educational authorities to have

gone out of their way for facilitating the

dubious appointments of the petitioners,

unless they were swayed by extraneous

considerations. The single judge appears

to have rightly observed in his order

dated 5.5.10 that "no fraudulent

withdrawal from the Government

Treasury through the office of the

District Inspector of Schools, Ballia is

prima facie possible from the General

Provident Fund unless officers and

employees working in the aforesaid two

offices collude with the private

management and the person concerned."

Specifically it was argued by Sri. U.N. Sharma, learned Senior counsel

appearing for Vinayendra Upadhyay, that the FIR was unauthorised as

it has been instituted on the direction of the Single Judge in Civil

Misc. Writ petition No. 23250 of 2010, whilst hearing a service matter

and the said bench had no jurisdiction to issue a general direction for

lodging FIRs against known and unknown persons, particularly as the

petitioner in the said writ petition Bhim Singh had mainly sought a

relief of getting the GPF refunded from one Ashok Kumar Singh, who

was arrayed as respondent no.10 in the said writ petition. Such a

direction, if at all, could have been issued only by a bench hearing

Public Interest Litigations (PILs). Also no opportunity was given to

the petitioners to raise objections before the Single Judge bench which

had issued the general direction for lodging the FIRs and the said order

was in violation of the principles of natural justice, as they were not

parties in Civil Misc. Writ petition No. 23250 of 2010. For these

reasons the Division Bench in Special Appeal ( Defective ) No. 610 of

2010, by an order dated 30.6.2010 finally disposing of the Special

Appeal had stayed the operation of the order of the single judge in

Civil Misc. Writ Petition No. 23250 of 2010 directing registration of

the FIR so far as it related to the case of the petitioner Vinayendra

Nath Upadhyaya.

It may be noted that the prayers in the single judge writ petition No. 23250 of

2010, apart from the first prayer for a mandamus directing the concerned

authorities to recover the amount of G.P.F. which had been misappropriated

by respondent No. 10 (Ashok Kumar Singh) were to:

"b) issue a writ, order or direction in the nature of mandamus directing to the

competent authorities to take appropriate action against guilty

teachers/employees; Manager/ Principal and officials/Officers, who are

involved in said misappropriation of funds of G.P.F in the light of audit report

dated 4.12.2006 ( Annexure no.11 of the writ petition) and in the light of

order dated 4.1.2008, passed by Additional Director of Education(Annexure

no.12 of the writ petition);

c) issue a writ, order or direction which this Hon'ble Court may deem fit and

proper in the circumstances of the case".

Thus the general direction for lodging the FIRs was issued in terms of the

audit report dated 4.12.06 which produced evidence of the diversion of funds

meant for GPF for payment of salaries of employees, whose appointments

were illegal and unauthorized, and false dates of appointment were mentioned

based on forged documents. There were instances of dishonest removal of

service papers to hamper audit etc.

The single judge further rightly justifies his order dated 13.5.2010 directing

registration of FIRs for embezzlement of public money by observing that Sri

M.C. Chaturvedi, Chief Standing Counsel "submits that the embezzlement of

the money from the GPF account is not in dispute, however the quantification

is to be done."

In Nirmal Singh Kahlon v. State of Punjab, AIR 2009 SC 984 the Supreme

Court saw no difficulty in a private interest litigation being changed to a

public interest litigation, or in issuing directions of a general nature where

large scale systematic irregularities or fraud was noticed by the High Court. In

this regard it was observed in paragraph 32 : "The High Court while

entertaining the writ petition formed a prima facie opinion as regards the

systematic commission of fraud. While dismissing the writ petition filed by

the selected candidates, it initiated a suo motu public interest litigation. It was

entitled to do so. The nature of jurisdiction exercised by the High Court, as is

well known, in a private interest litigation and in a public interest litigation is

different. Whereas in the latter it is inquisitorial in nature, in the former it is

adversarial. In a public interest litigation, the court need not strictly follow the

ordinary procedure. It may not only appoint committees but also issue

directions upon the State from time to time. {See Indian Bank vs. Godhara

Nagrik Co-op. Credit Society Ltd. and Anr. [2008 (7) SCALE 363] and Raju

Ramsing Vasave v. Mahesh Deorao Bhavpurkar and others, [2008 (12)

SCALE 252].

Further in Dwarka Nath v. Income Tax Officer, Special Circle, D.

Ward, Kanpur, AIR 1966 SC 81 and Padma v. Hiralal Motilal

Desarda, AIR 2002 SC 3252 it has been held that in view of the

comprehensive phraseology in Article 226, which gives powers to the

High Court not only to issue specified writs, but to issue orders and

directions for "any other purpose", an ex facie power is conferred on

the High Court to reach injustice wherever it is found, and to mould its

relief for meeting the complicated requirements of a case.

Also it has been laid down in A.R. Antulay v. Ram Das Sriniwas Nayak, AIR

1984 SC 718 in paragraph 6 that the concept of locus standi is foreign to

Indian jurisprudence, and if a cognizable offence has been committed, anyone

can put the criminal law in motion, unless the statute restricts the right to file

the FIR to a particular category of persons. The relevant passage reads thus:

"It is a well recognised principle of criminal jurisprudence that

anyone can set or put the criminal law into motion except where the

statute enacting or creating an offence indicates to the contrary.

Locus standi of the complainant is a concept foreign to criminal

jurisprudence save and except that where the statute erecting an

offence provides for the eligibility of the complainant, by necessary

implication the general principle get excluded by such statutory

provision. Punishment of the offender in the interest of the society

being one of the objects behind penal statutes enacted for larger good

of the society. Right to initiate proceedings cannot be whittled down.

circumscribed or fettered by putting in into a strait-jacket formula of

locus standi unknown to criminal jurisprudence. save and except

specific statutory exception."

A Court in any jurisdiction is no less a citizen than a

private person. If the Court in the course of hearing a

case finds that a cognizable offence is committed by

some persons, it can never be barred from bringing

these facts to the notice of the investigating agency,

who in turn in view of section 154 of the Code is bound

to investigate the said offence, not because the order has

emanated from the Court, but because a cognizable

offence is disclosed.

In M. Narayandas v. State of Karnataka,(2003) 11 SCC 251 it has been

held that in view of section 154 (1) of the Code, a duty has been cast

on the investigating officer to reduce any "information" about the

commission of a cognizable case in writing. The expression 'credible

information' or reasonable complaint has deliberately not been used in

the provision by the legislature. Therefore the investigating officer has

no option but to lodge the FIR and to proceed with investigation if any

information about the commission of a cognizable offence is received.

Paragraph 33 of M. Narayandas may be usefully extracted here- "It is,

therefore, manifestly clear that if any information disclosing a

cognizable offence is laid before an officer in charge of a police

station satisfying the requirements of Section 154(1) of the Code, the

said police officer has no other option except to enter the substance

thereof in the prescribed form, that is to say, to register a case on the

basis of such information."

So far as the other criticism against the single judge's

order for having violated principles of natural justice

was concerned, it may be noted that as on examining

the petition filed by Bhim Singh and obtaining

responses from the Standing Counsel, the Single Judge

reached a conclusion about large scale irregularities in

appointments and illegal diversion of GPF money, he

could only order a general investigation and lodging of

FIRs against persons who may be involved in the crime.

As the single judge had no knowledge as to all the

persons who could be involved in the fraud, there was

no question of issuing notices to the potential accused at

that stage.

By the order dated 13.5.10 the single judge had simply directed that a "First

Information has to be lodged aginst the persons guilty and they must be

brought to book." Thereafter if the investigating agency was prima facie

satisfied of the complicity of any person in an offence, there was no

requirement in law of providing an opportunity of hearing to the accused

before registration of the FIR.

At the stage of investigation the accused has no locus standi or right of prior

hearing before the FIR is lodged. In Union of India v. W.N. Chadha, AIR

1993 SC 1082, it has been clarified that an accused has no right to challenge

the letter rogatory issued by an Indian Court to a foreign Court for obtaining

evidence regarding the source of funds kept in the Swiss Bank. As no

deprivation of liberty or property was involved, hence the principle of audi

alteram partem, was not attracted.

The subsequent stage of investigation by the police is governed by the Code

of Criminal Procedure (hereafter called the Code). Chapter 12 of the Code

confers no right of prior hearing to the accused at the stage of investigation,

but the right of hearing is only provided when the Sessions Judge or

Magistrate considers whether to discharge or to frame a charge against the

accused under sections 227/228 or 239/240 of the Code. Under section 235(2)

in the case of a Sessions triable case, or section 248(2) in a warrant case

triable by a Magistrate again the accused have a right of being heard.

That the accused has no right of hearing at the stage of investigation and does

not come into the picture till the order taking cognizance has been passed has

also been emphasized in Chandra Deo Singh v. Prakash Chandra Bose, AIR

1963 SC 1430 Shashi Jena & Ors. v. Khodal Swain & Anr., (2004) 4 SCC

236 and a catena of other decisions.

Significantly it has been observed in paragraph 98 in Union of India v. W.N.

Chadha:

98."If prior notice and an opportunity of hearing are to be given to an

accused in every criminal case before taking any action against him,

such a procedure would frustrate the proceedings, obstruct the taking

of prompt action as law demands, defeat the ends of justice and make

the provisions of law relating to the investigation as lifeless, absurd

and self-defeating. Further, the scheme of the relevant statutory

provisions relating to the procedure of investigation does not attract

such a course in the absence of any statutory obligation to the

contrary."

It also appears to us that the order in Special Appeal

(Defective) No. 610 of 2010, dated 30.6.2010 staying the

operation of the order of the single judge in Civil Misc. Writ

Petition No. 23250 of 2010 directing registration of the FIR so

far as it related to the case of the petitioner Vinayendra Nath

Upadhyaya was passed as the division bench was under the

impression that no action had yet been taken on the direction of

the single judge for registration of the FIR. Thus it was

observed in the order in the Special Appeal (Defective), that :

"Sri Pandey, learned Advocate rightly points out that against

the report no stay has been given. That appears to be rightly so.

Once there is order of this court directing lodging of first

information report and that has been executed/ complied there

may not be possibly any occasion for any co-ordinate bench to

grant relief." (Emphasis supplied). Thus the Special Appeal

Court was proceeding on the footing that no FIR had been

registered till then. This position was factually incorrect,

because pursuant to the order of the single judge dated

13.5.2010, the FIR had already been registered at Case Crime

No. 271 of 2010 on 23.5.10, whereas the order disposing of the

Special Appeal was passed only on 30.6.2010.

After the registration of the FIR, the said FIR could only be challenged

before a bench hearing criminal writs, and not before a bench

disposing of a Special Appeal against an order of a single judge

directing registration of the FIR.

Another argument raised by Sri V.P. Srivastava was that as an earlier

FIR dated 25.4.2002 naming 11 persons had been lodged against some

of the petitioners for obtaining ad-hoc appointments illegally in which

the arrests had been stayed in various writ petitions and after charge

sheets, proceedings had been stayed on applications under Section 482

Cr.P.C., the present FIR could only be considered an enlargement of

the earlier FIR and it could not have been filed as it was in violation of

the law laid down in T.T.Antony v. State of Kerala and others etc.,

(2001) 6 SCC 181 and Upkar Singh v. Ved Prakash and others, (2004)

13 SCC 292. It was argued that a second FIR is only permissible when

a cross version of the incident is given by the accused, and there can

be no second FIR for introducing some other material or for

implicating additional accused with respect to the earlier incident.

It may be noted that in the decision of Upkar Singh itself, it is

mentioned in paragraphs 21 and 22 as corrected, vide Official

Corrigendum No. F.3/Ed. B.J./86/2004 that:

"21. From the above it is clear that even in regard to a complaint

arising out of a complaint on further investigation if it was found that

there was a larger conspiracy than the one referred to in the previous

complaint then a further investigation under the Court culminating in

another complaint is permissible.

22. A perusal of the judgment of this Court in Ram Lal Narang's case

(supra) not only shows that even in cases where a prior complaint is

already registered, a counter complaint is permissible but it goes

further and holds that even in cases where a 1st complaint is registered

and investigation initiated, it is possible to file a further complaint by

the same complainant based on the material gathered during the course

of investigation. Of course, this larger proposition of law laid down in

Ram Lal Narang's case is not necessary to be relied on by us in the

present case. Suffice it to say that the discussion in Ram Lal Narang's

case is in the same line as found in the judgments in Kari Choudhary

and State of Bihar v. J.A.C. Saldanna (supra). However, it must be

noticed that in T. T. Antony's case Ram Lal Narang's case was noticed

but the Court did not express any opinion either way." (Emphasis

added).

Recently in Nirmal Singh Kahlon v. State of Punjab,

AIR 2009 SC 984 , the case law on the point has been

reviewed, and the Apex Court, has re-affirmed the

above noted view in Upkar Singh, and opined that if the

new conspiracy is different or covers a larger canvas,

and even some new accused are added (although some

accused may be common in the two FIRs), there is no

fetter on lodging the second FIR.

In the instant case we find that the earlier FIR dated 25.4.02 nominated

10 named government employees, 7 of whom were clerks, an accounts

officer, and two accountants. The said 10 accused persons are

completely different from the three government officials, i.e. the

DIOS, Accounts officer and accounts clerk named in the present case.

There are no allegations in the earlier case of diversion of General

Provident Fund Money, but the allegations were of getting fake

appointments and payments made to 131 persons who were ineligible

for employment. There was thus no difficulty in the second FIR being

registered.

Contrary to the aforesaid submission of duplication of FIRs, Sri G.S.

Chaturvedi has argued that the FIR should be quashed because for

multiple causes of action, and multiple conspiracies of unrelated

teachers from different educational institutions with educational

authorities in Ballia a single FIR at crime No. 271 of 2010 had been

lodged in the present case, and that there should have been multiple

FIRs. He placed reliance on a decision of this Court in Rashid Aziz v.

State of U.P., 1997 (34) ACC 726. The FIR in the said case appears to

have been quashed with liberty to file separate FIRs principally

because the FIR by the District Magistrate in Rashid Aziz was

unwarranted as the DM himself was the sanctioning authority in that

case under section 39 of the Arms Act.

Moreover, looking to the complex nature of allegations, and the case

being in the nature of a scam, of diversion of GPF money to

wrongfully appointees, where the modus operandi of the criminal

activity alleged may have been similar, the investigation by a single

agency was desirable. Indeed scams of such magnitude are usually

investigated together by pivotal agencies like the CBI or the CBCID.

Questions relating to misjoinder of charges under section 223 of the

Code can be agitated at the stage of framing of charges, and not at the

initial stage of investigation. There is also nothing to prevent the

investigating officer from filing separate charge sheets in exercise of

his powers under section 173 (2) of the Code, if he is so advised. It is

open for the supervisory agencies in the police establishment to look

into this issue, and give appropriate guidance to the investigating

officer.

In Satvinder Kaur v. State (Government of NCT, Delhi), AIR

1999 SC 3596, where the goods in the marriage had been

entrusted in Patiala, but the FIR was lodged in Delhi, the lack

of territorial jurisdiction with the investigating officer, was

held not to be a ground for refusing to lodge the FIR or to

investigate the case. In Union of India. v. Prakash P. Hinduja,

AIR 2003 SC 2612, relying on H.N. Rishbud v. State of Delhi,

(AIR 1955 SC 196) it has been held that any illegality in an

investigation does not vitiate the trial, unless it has caused a

miscarriage of justice. In the latter case, the investigation into a

case under the Prevention of Corruption Act was conducted by

an officer below the rank of Dy. Superintendent of Police. This

was in violation of section 5-A of the Prevention of Corruption

Act. It was observed that even an invalid investigation does not

vitiate an order of cognizance, unless miscarriage of justice has

resulted.

It was further submitted by Sri G.S. Chaturvedi, that offences

under the provisions alleged i.e 409, 467, 468, 419 and 420

IPC are not made out. We refrain from giving elaborate

comment on this point as it may prejudice, the investigation or

trial. Suffice it is to state that the money meant for GPF was

money which was to be held in trust for the bona fide

employees and was to be utilized in a particular manner in

accordance to the directions in law. There would be a criminal

breach of trust, if the said money was diverted for payment of

salaries of some employees. As per the FIR there are

allegations of preparation of forged documents by mentioning

false dates of appointments and for withdrawing the GPF etc.

which have been made for causing wrongful losses to the

public exchequer or to bona fide employees. Thus prima facie

it cannot be said that offences under the aforesaid sections are

not disclosed.

In Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259 it has been

observed that there cannot be a hypertechnical approach at the stage of

investigation, and whether an offence under a particular section is

disclosed cannot be sieved through a cullender of the finest gauzes at

this stage. Thus in paragraph 12 at page 263 the aforesaid law report

notes: "The High Court seems to have adopted a strictly

hypertechnical approach and sieved the complaint through a cullendar

of finest gauzes for testing the ingredients under Section 415 IPC.

Such an endeavour may be justified during trial, but certainly not

during the stage of investigation."

It was also submitted by Sri G.S. Chaturvedi, that the payments

were made and salaries paid from the GPF accounts only for

compliance of the Court's orders and the said actions were

protected under section 78 of the Penal Code.

As we have already clarified above, salaries cannot be paid arbitrarily

from any source or account, and withdrawal of money from the GPF

account, which is money held in trust for the regular bona fide

employees would amount to criminal breach of trust. Moreover,

Section 78 of the Penal Code only takes away the criminality of an act

done in good faith in pursuance of or which is warranted by the

judgment or order of a court. The act of giving appointments to

employees who may not be entitled to employment under the statutory

provisions, only on the strength of some interim or final orders of the

Court, and then making payments to them from the GPF money of

bona fide employees, which is a criminal act, as it is against the law or

directions as to how a trust has to be executed, can never be described

as an act in good faith justified by Court orders.

It was next submitted by Sri V.P. Srivastava, that there was no

embezzlement, but only a temporary withdrawal of GPF sums for

ensuring compliance of the High Court's orders.

Even a temporary unlawful diversion of money perhaps with the intent

to restore it in future, is a dishonest act which would amount to an

offence. In Ram Narain Poply v. CBI, 2003 Cri.L.J 4801 it has been

observed that "When a person misappropriates to his own use the

property that does not belong to him, the misappropriation is dishonest

even though there was an intention to restore it at some future point of

time."

One last submission was raised by learned counsel that in several writ

petitions arising out of the present crime number the arrest of the

petitioners have been stayed by different orders of this Court.

We notice that in some cases the writ petitions have been dismissed

straight away. There are other cases on which the petitioners' counsel

rely, where the writ petitions have been dismissed or disposed of, with

an interim relief, that till submission of charge sheets their arrests

should be stayed, without even saying anything on the merits of the

matter. The said orders are in the teeth of the decision of the Full

Bench of this Court, in Ajeet Singh v State of U.P., (2007 Cri.L.J.170)

(FB), which has disapproved of orders orders staying arrests by non-

reasoned orders whilst dismissing or disposing of the petition. Relying

on the decisions in State of Orissa v. Madan Gopal Rungta, AIR 1952

SC 12, Amarsarjit Singh v. State of Punjab, AIR 1962 SC 1305, State

of Orissa v. Ram Chandra Dev, AIR 1964 SC 685, State of Bihar v.

Rambalak Singh "Balak", AIR 1966 SC 1441, Premier Automobiles

Ltd. v. Kamlakar Shantaram Wadke, AIR 1975 SC 2238 it is observed

in paragraph 83 by the Full Bench: "the writ Court has no competence

to issue any direction protecting the right of the petitioner interregnum,

for the reason that writ does not lie for granting only an interim relief

and interim relief can be granted provided the case is pending before

the Court and rights of the parties are likely to be adjudicated upon on

merit"

Considering the scope of interference under Article 226 of the

Constitution, and after the considering the conspectus of authorities on

the point, it has been observed in paragraph 19 by the Full Bench in

Ajeet Singh's case:

19. "The power of quashing the criminal proceedings has to be

exercised very sparingly and with circumspection and that too in the

rarest of rare cases and the Court cannot be justified in embarking

upon an enquiry as to the reliability or genuineness or otherwise of

allegations made in the F.I.R. or complaint and the extraordinary and

inherent powers of Court do not confer an arbitrary jurisdiction on

the Court to act according to its whims or caprice. However, the

Court, under its inherent powers, can neither intervene at an uncalled

for stage nor it can 'soft pedal the course of justice' at a crucial stage

of investigation/proceedings. (Vide State of West Bengal v. Swapan

Kumar Guha, AIR 1982 SC 949; Madhavrao Jiwaji Rao Scindia v.

Sambhajirao Chandrojirao Angre, AIR 1988 SC 709; The Janata Dal

v. H. S. Chowdhary, AIR 1993 SC 892; Mrs. Rupan Deol Bajaj v.

Kanwar Pal Singh Gill, AIR 1996 SC 309; G. Sagar Suri v. State of

U.P., AIR 2000 SC 754 : (2000 All LJ 496); and Ajay Mitra v. State of

M.P., AIR 2003 SC 1069)."

We may mention here that after extensive hearing to the parties, and

reserving the case for orders on 19.7.2010, an affidavit dated 20.7.10

was filed in Cr.Misc. Writ Petition No. 9873 of 2010, Vinayendra

Nath Upadhyay v State of U.P. and others annexing therein an order of

the Apex Court dated 19.7.10 in Special Leave to Appeal (Crl) No(s)

5429/2010, Om Prakash Chaubey v. State of U.P. & Ors. The said

order read as follows:

"Issue notice.

By way of ad-interim relief, it is directed that the petitioner shall not

be arrested."

In deference to the aforesaid interim order of the Supreme Court

issuing notice on the aforesaid appeal and staying the arrest of the

appellant therein, we had granted an interim stay of arrest of the

petitioners till 4.8.2010 by our orders dated 22.7.2010 and 28.7.2010.

But subsequently we have been informed by the High Court's

Computer section, that after a lengthy hearing by the Supreme Court

on 19.7.2010 in the case of Dr. Lalendra Pratap Singh, SLP (Criminal)

5412 of 2010, the Principal of Sukhpura Inter College, who was a co-

accused along with the petitioners in the same Crime number and

whose Criminal Writ petition was earlier dismissed by the High Court,

which had been challenged in the Supreme Court. When the Apex

Court was about to dismiss the petition, the petitioner's counsel made

an oral prayer for withdrawing his petition, whereupon the bench

consisting of Hon'ble Mr. Justice Harjit Singh Bedi and Hon'ble Mr.

Justice C.K. Prasad, dismissed the petition as withdrawn by the

following order :

UPON hearing counsel the Court made the following

ORDER

"After arguing the matter at very length and

when we were about to make an order of

dismissal, the learned counsel for the petitioner

prays that the petition be dismissed as

withdrawn. Ordered, as prayed for."

In view of the aforesaid it cannot be said that the First Information

Report and other material on record does not disclose any cognizable

offence, and that any ground exists either for questioning the

investigation or for staying the arrests of any of the petitioners. We

therefore dismiss all the writ petitions. The interim orders granted

earlier are vacated. The investigating agency is directed to proceed

expeditiously in concluding the investigation.

It is also made clear that the observations

hereinabove have only been made in answer to

the submissions raised by learned counsel. The

investigating agency and the trial court are

expected to apply their independent minds for

reaching their own conclusions.

The records of the single judge C.M.W.P. No. 23250 of 2010, Bhim

Singh v. State of U.P., Special Appeal (Defective) No. 610 of 2010

and also of Civil Misc. Contempt Petition No. 1724 of 2004 which

were earlier summoned by this Court may now be sent back to their

appropriate sections.

Order Date :- 4.8.2010

Ishrat