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IN THE HIGH COURT OF ALLAHABAD
VIVEK KUMAR BIRLA, KSHITIJ SHAILENDRA, JJ.
Gaaurav Tripathi - Petitioner
Versus
State of U.P. and Others - Respondents
Criminal Misc. Writ Petition No. 7952 of 2022
Decided On : 02-03-2023
Constitution of India,1950 - Article 21 - The Prevention of Corruption Act, 1988 – Section 7 and 19 – Employment and Service matter - Working as Assistant Teacher - Illegal demand - Sanction of leave - Petitioner was working as Assistant Teacher at Primary School, and, petitioner was suffering from cold, cough, fever etc. problem and for medical treatment he went to District T.B. Hospital, Basti having O.P.D. registration number 6034; on account of aforesaid medical problem, petitioner took leave, said information was duly communicated to Principal of school and it was duly noted in school register; online portal for sanction of leave was non-functional (due to technical error) in entires, that is why petitioner applied offline for leave and information was given to respondent no.10; respondent no.10 visited school and created a chaos there - He has also made overwriting in attendance register and marked petitioner absent; as soon as petitioner got abovementioned information from school staff after he came back, he went to meet private respondent after school hours; petitioner was asked to meet at 06:00 pm in front of Boons restaurant at District and there an illegal demand was raised by respondent no.10 from petitioner; on said illegal demand being raised by respondent no. 10 - In sum and substance contention of learned counsel for respondent no.10 is that fair investigation as well as fair trial is fundamental right of accused and it is duty of investigating agency as well as courts of law to ensure that investigation is conducted in fair and impartial manner. [Para 20]
Finding of Court : Court find substance in arguments of learned counsel for petitioner that law laid down by Supreme Court as well as Court to effect that investigation normally cannot be transferred at behest of accused person has been violated in present case and, even otherwise, political interference in matter of transfer of investigation from one agency to other is apparent even from bare perusal of order impugned dated - Court does not find any speaking reason or ground which could justify transfer of investigation except reasons disclosed in order impugned dated - Further case is not of exceptional or rare nature in which transfer of investigation could be said to be justified - Keeping in view all aforesaid facts and circumstances of case, Court find that order impugned dated being based on political interference and having been passed at behest of accused (respondent no.10) and being bereft of any valid or cogent reasoning, cannot be sustained and is liable to be set aside - Similarly consequential order dated also cannot be sustained and is liable to be set aside.
Result : Writ petition is allowed
JUDGMENT :
Kshitij Shailendra, J.
1. Heard Sri Sandeep Shukla, learned counsel for the petitioner, Sri Bharat Singh, learned counsel appearing for the respondent no. 10 and Sri G.P. Singh, learned A.G.A. appearing for the State.
2. Pursuant to the orders of this Court dated 17.1.2023 and 30.1.2023 learned A.G.A. has produced before this Court attested copy of the order dated 17.5.2022 alongwith other documents, which are taken on record.
3. This petition has been filed inter alia claiming following reliefs:-
"a. Issue a writ, order or direction in the nature of mandamus calling for the record of order dated 17.05.2022 passed by respondent number 3, being number V.I.P.-15/39-4-2022-50 M (01)/2021 and further to issue a writ of certiorari quashing impugned order dated 17.05.2022 and consequential order dated 02.06.2022 passed by respondent number 7 directing transfer of investigation of Case Crime Number 5 of 2021 from Gorakhpur Sector of Uttar Pradesh (Vigilance Establishment) to Lucknow Sector (Vigilance Establishment).
b. Issue a writ, order or direction in the nature of mandamus commanding upon the respondent number 4 to pass appropriate order under section 19 of The Prevention of Corruption Act, 1988 on the police report submitted in First Information Report dated 16.09.2021 bearing Case Crime Number 5 of 2021, under section 7 The Prevention of Corruption Act, 1988 Police Station Gorakhpur Sector (Vigilance Establishment), District Gorakhpur."
4. The necessary facts giving rise to the present writ petition are that the petitioner was working as Assistant Teacher at Primary School, Barhauwa, Vikas Khand Saltauva, Gopalpur and on 26.08.2021, petitioner was suffering from cold, cough, fever etc. problem and for medical treatment he went to District T.B. Hospital, Basti having O.P.D. registration number 6034; on account of aforesaid medical problem, petitioner took leave on 26.08.2021, the said information was duly communicated to the Principal of school and it was duly noted in the school register; the online portal for sanction of leave was non-functional (due to technical error) in the entire Uttar Pradesh from 21.08.2021 to 27.08.2021, that is why petitioner applied offline for the leave and the information was given to respondent no.10; the respondent no.10 visited the school on 26.08.2021 and created a chaos there. He has also made overwriting in the attendance register and marked petitioner absent; as soon as the petitioner got the abovementioned information from school staff after he came back on 28.08.2021, he went to meet private respondent after school hours; the petitioner was asked to meet at 06:00 pm in front of Boons restaurant at District Basti and there an illegal demand of Rs.10,000/- (finally settled for Rs. 7,000/-) was raised by respondent no.10 from petitioner; on the said illegal demand being raised by respondent no. 10, a complaint dated 06.09.2021 was made before Superintendent of Police, Vigilance Department, Gorakhpur raising his grievances; acting on the said complaint dated 06.09.2021, inquiry was done, averments of complaint were found genuine and it came into the knowledge that respondent no.10 is a corrupt officer; later on after following due process, trap was organized on 15.09.2021 and respondent number 10 was caught red handed by the trap team taking bribe of Rs.7,000/-; for the offence committed by respondent no.10, first information report dated 16.09.2021 was registered at Police Station Gorakhpur Sector (Vigilance Establishment) under Section 7 of the Prevention of Corruption Act, 1988 against respondent no.10; once respondent no.10 was arrested and sent to judicial custody, vide order dated 24.09.2021 he was suspended; bail application was moved by the respondent no.10 before Additional District and Sessions Judge (P.C. Act), Court Number 5, Gorakhpur being Bail Application Number 4445 of 2021 and the same was rejected vide order dated 28.09.2021; being aggrieved by bail rejection order dated 2
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