Back
2018 Supreme(All) 2357
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
J.J. MUNIR, J.
Devendra Singh Yadav - Appellant
Versus
The Learned Court of Special Chief Judicial Magistrate, Meerut and another - Respondent
Matter Under Article 227 No. 3480 of 2018
Decided On : 03-10-2018
For the Appellant : Chandra Jeet Yadav
For the Respondent: G.A., Vivek Prakash Mishra
The absence of a preliminary inquiry, in cases where an offence is disclosed, does not serve to quash an FIR, that is registered even with somewhat undue haste. The protection of Section 197 Cr.P.C. is not available to officers of Government Companies, or public undertakings, that are undoubtedly as much instrumentalities of the State as a University incorporated under a State Legislation like the Act.
Headnote:
CRIMINAL - PUBLIC SERVANT - SANCTION FOR PROSECUTION - PRELIMINARY INQUIRY - ASSISTANT REGISTRAR OF UNIVERSITY - WHETHER PUBLIC SERVANT - SECTION 197(1) CR.P.C. - INTERPRETATION.
Fact of the Case:
Petitioner, an Assistant Registrar with Sardar Ballabh Bhai Patel Krishi Evam Prodyogik Vishvavidyalaya, Modipuram, Meerut, was charge sheeted in a case of embezzlement of funds of the University. Cognizance of the offence was taken by the Special Chief Judicial Magistrate, Meerut. The petitioner challenged the proceedings of the case, with a prayer to quash the charge sheet. The main contention of the petitioner was that the absence of a preliminary inquiry held by the department or a responsible officer of the police before registering an FIR and proceeding with investigation against a public servant, charged with acts of dishonesty in the discharge of his official duties, would vitiate the FIR and the resultant prosecution. The petitioner also contended that he was not a public servant within the meaning of Section 197(1) Cr.P.C. and, therefore, the cognizance taken against him of an offence, that is clearly alleged to have been committed by him while acting in the discharge of his official duty, is barred by the provisions of Section 197(1) Cr.P.C., sanction of the State Government having not been taken prior to cognizance.
Finding of the Court:
The Court held that the absence of a preliminary inquiry, in cases where an offence is disclosed, does not serve to quash an FIR, that is registered even with somewhat undue haste. The Court further held that the petitioner was not a public servant within the meaning of Section 197(1) Cr.P.C. and, therefore, the cognizance taken against him of an offence, that is clearly alleged to have been committed by him while acting in the discharge of his official duty, is not barred by the provisions of Section 197(1) Cr.P.C.
Issues: 1. Whether the absence of a preliminary inquiry held by the department or a responsible officer of the police before registering an FIR and proceeding with investigation against a public servant, charged with acts of dishonesty in the discharge of his official duties, would vitiate the FIR and the resultant prosecution? 2. Whether the Assistant Registrar of a University incorporated under a State Legislation is a public servant within the meaning of Section 197(1) Cr.P.C.?
Ratio Decidendi: 1. The law about registration of an FIR relating to a cognizable offence is transparently clear. It says that a cognizable offence can be registered by the police always, upon information of such an offence being committed. 2. In specific class of cases, a preliminary inquiry should be undertaken, before proceeding further, as not doing so, would imperil the smooth functioning of many institutions of the complex modern society. 3. Whether the manner of registration of an FIR, or the requirement of holding a preliminary investigation would be relevant, and, of some consequence, would depend on the facts of each case. 4. It would most importantly depend on the gravity of the allegation, and, the apparent or the doubtful character of evidence, that comes along. 5. The protection of Section 197 Cr.P.C. is not available to officers of Government Companies, or public undertakings, that are undoubtedly as much instrumentalities of the State as a University incorporated under a State Legislation like the Act.
Final Decision: The petition was dismissed.
JUDGMENT :
J.J. MUNIR, J.
1. This Petition under Article 227 of the Constitution is all about an answer to the following questions:
(a) Whether the absence of a preliminary inquiry held by the department or a responsible officer of the police before registering an FIR and proceeding with investigation against a public servant, charged with acts of dishonesty in the discharge of his official duties, would vitiate the FIR and the resultant prosecution?
(b) Whether the Assistant Registrar of a University incorporated under a State Legislation is a public servant within the meaning of Section 197(1) Cr.P.C.?
2. The petitioner is an Assistant Registrar with the Sardar Ballabh Bhai Patel Krishi Evam Prodyogik Vishvavidyalaya, Modipuram, District Meerut, and, hereinafter referred to as the ‘University’. The University is incorporated under the Uttar Pradesh Krishi Evam Prodyogik Vishvavidyalaya Adhiniyam, 2014 (hereinafter referred to as the ‘Act’).
3. The petitioner has been charge sheeted, vide charge sheet dated 04.04.2017, in Case Crime no.487 of 2016, under Sections 420, 467, 468, 471 IPC, Police Station Daurala, District Meerut. Cognizance of the said offence has been taken by the Special Chief Judicial Magistrate, Meerut on 15.04.2017, and, Case no.552/09/2017, State vs. Devendra Singh Yadav is pending before the Court of the learned Special Chief Judicial Magistrate, Meerut. The petitioner has come up laying challenge to the proceedings of the aforesaid case, with a prayer that the same be set aside. In effect, the petitioner desires the charge sheet to be quashed.
4. The facts giving rise to this petition in brief are these, that Public Interest Litigation Petition (PIL) no.58424 of 2016 was filed before this Court by one Dr. Sandeep Pahal, where it appears embezzlement of funds of the University out of the Education Head of Account, was alleged to have been committed by the petitioner, and, the embezzled moneys were indicated to be to the tune of Rs.17 lakhs. These were shown to be expended towards an ex facie quaint head of expenditure, called High Court Fee. The following material reliefs were sought in the PIL Petition aforesaid:
“(i) Issue a writ, appropriate order or direction in the nature of mandamus commanding the concerned Respondents i.e. to Registrar General of High Court (Respondent No.3) in present case to apprise/ place before this Hon’ble Court its findings/ truth about the genuineness of used cash receipts of High Value shown issued by High Court Allahabad and its Lucknow Bench (Annexure-4 Page 41 to 47) which are prima facie fake, forged/ fabricated and which have been used by the racketeers in embezzlement of public funds to the tune of approximately Rs. Seventeen lakh (Embezzlement may run from Rs. 50 lakh to Rs. One Crore).
(ii) Issue a writ, appropriate order or direction in the nature of mandamus commanding the concerned Respondents to set the law in to motion forthwith against the racket involved in fabricating/ using cash receipts by using fake signature and fake seal/ stamps of High Court.
(iii) Issue appropriate order or direction to Respondent No. 4, 5, 6 to forthwith place the internal inquiry report and action taken report, if any, before this Hon’ble Court which they were supposed to promptly submit in 15 days from the date of forming of inquiry committee on 11.03.16, but they have failed to submit it despite the order dated 22.08.16 and reminder order dated 08.09.16 passed by Chancellor of University (Respondent No.2).
(iv) Issue appropriate order or direction to Respondents to explain the reasons for having failed to discharge their statutory duty in taking prompt effective stern action in this serious matter involved by setting the law in to motion against the fraud/ racketeers.
(v) Issue appropriate order or direction to form an independent time bound inquiry committee under monitoring by this Hon’ble Court to inquire in to the conduct/ role of person(s) in shielding the fraud/ racketeers.”
5. On the
