VINAYENDRA NATH UPADHYAY vs STATE OF U. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(All) 2571

[2010(7) ADJ 787 (DB)]
ALLAHABAD HIGH COURT
BEFORE : AMAR SARAN AND S.C. AGARWAL, JJ.
VINAYENDRA NATH UPADHYAY AND OTHERS …Petitioners
Versus
STATE OF U.P. AND OTHERS …Respondents
(Criminal Misc. Writ Petition Nos. 9873, 9674, 9871, 9567, 9992, 10676, 10731, 11172, 11572, 11790 and 11791 of 2010, decided on 4th August, 2010)

Advocates:
Counsel :
Umesh Narayan Sharma, V.P. Srivastava, G.S. Chaturvedi, Rituvendra Singh and A.K. Pandey for the Petitioner; A.K. Sand, Vikas Sahai and G.A. for the Respondents.

Headnote:(A) Criminal Procedure Code, 1973—Sections 154, 227, 228, 239, 240, 235(2), 248(2) and 173(2)—(Indian) Penal Code, 1860—Sections 409, 467, 468, 471, 419 and 420—U.P. High Schools and Intermediate Education Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971—Section 9—General Provident Fund—Embezzlement—Quantification of—Criminal liability does occurs—FIR has to be lodged against persons guilty—Under Criminal conspiracy fraudulent withdrwal of money from Government treasury through office of DIOS—Employees working there colluded with private management and person concerned—FIR lodged in purport to order of High Court—As per FIR during period October 2005 and April 2006 principals and moneys of non-Government aided secondary and higher secondary colleges—Entered into a criminal conspiracy with certain teachers and non-teaching staff of their institutions—And then DIOS, Account Officer and Account Clerks—With objective of embezzling public money—Forged documents manufactured with aim of illegally paying salaries to teaching and non-teaching employees—Whose appointments were unauthorised after showing false dates of appointments—Arrears paid without authorisation from concerned authority—Funds meant for GPF accounts diverted for distribution of arrears of salary—Role of DIOS, Account Officer, Clerk and Principals and Managers are illustrative—College records dishonestly removed from audit—In earlier occasion in civil contempt by direction matter handed over to C.B.C.I.D.—Agency recommended lodging of FIR—Whereas Director of Education (Secondary) found that 104 employees got order from High Court directing payments of salaries pending completion of enquiry—In view of Full Bench decisions unless post for which salary paid is approved by State Government (Director of Education)—Payments made by management of institution to such employees will not be reimbursed by State in terms of Section 9 of Act—Earlier Single Judge simply directed that "FIR has to be lodged against person guilty—They must be brought to book"—Thereafter, if investigating agency prima facie satisfied of complicity of any person in offence—No requirement of law of providing an opportunity of hearing to accused befroe registration of FIR—At stage of investigation accused has no locus standi—Or right of prior hearing before FIR lodged—Subsequent stage of investigation by police is governed by Cr.P.C.—Since allegations are different—Some of accused persons are from different Government department—Salary cannot be paid arbitrarily from any source or account—Withdrawal of money from GPF accounts—Which is held in trust for regular bona fide employees—Would amount to criminal breach of trust—In present case it cannot be said that FIR and other material on record—Does not disclose any cognizable offence—No grounds exist for questioning investigation—Or for staying arrests of any of petitioners. [Paras 2, 4, 7, 9, 18, 20, 23, 28 and 34]
       (B) Criminal Trial—FIR—Registration of—Determination of Bench—Where it can be challenged—It could only be challenged before a Bench hearing criminal writs—Not before a Bench disposing of a Special Appeal—Against an order of a Single Judge directing registration of FIR. [Para 20]
       (C) Criminal Trial—Second FIR—When can be lodged—In earlier FIR nominated 10 Government employees—Where said accused persons are completely different from there Government officials i.e. DIOS, Account Officer and Account Clerks named in present case—No allegation in earlier case of diversion of GP Fund money—But allegations were of getting false appointments and payments made to persons, ineligible for employees—Hence, Second FIR could be lodged. [Para 23]
       (D) Criminal Trial—Criminal breach of trust—What amounts to—Unauthorised payment of salary from any source—And withdrawal of money held in trust for regular bona fide employees—Would amount to criminal breach of trust. [Para 28]
       Result; Petition Dismissed.
       Cases cited :
       1994 (3) UPLBEC 1551 (FB) (All) (Para 8); 1992(2) AWC 962 (FB) (All) (Para 9); AIR 2009 SC 984; 2008(7) Scale 363 : 2008(12) Scale 252; AIR 1966 SC 81; AIR 2002 SC 3252; (Para 15); AIR 1984 SC 718 (Para 16); (2003) 11 SCC 251 (Para 17); AIR 1993 SC 1082 (Para 18); AIR 1963 SC 1430; (2004) 4 SCC 236 (Para 19); (2001) 6 SCC 181; (2004) 13 SCC 292 (Para 21); AIR 2009 SC 984 (Para 22); 1997 (34) ACC 726 (All) (Para 24); AIR 1999 SC 3596; AIR 1955 SC 196; AIR 2003 SC 2612 (Para 26); (1999) 3 SCC 259 (Para 27); 2003 Cri LJ 4801 (Para 29); 2006(5) ADJ 280 (FB); AIR 1952 SC 12; AIR 1962 SC 1305; AIR 1964 SC 685; AIR 1966 SC 1441; AIR 1975 SC 2238 (Para 30).

JUDGMENT

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.

2. 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.”

3. 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.

4. 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 appoin

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