# Ajay Kumar v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 488
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-29
- **Case number:** Crl. Misc. Writ Petition No. 7101 of 2022
- **Bench:** Suneet Kumar, Dr. Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-v-state-of-u-p-ors-48910
- **Pages:** 7

## Headnote

(A) Criminal Law - Constitution of India,
1950 - Article - 226 - Prevention Of
8 All. Ajay Kumar Vs. State of U.P. & Ors.
489
Corruption Act, 1988 - Sections 7, 13,
19(3)(b) & 5(4) - Indian Penal Code, 1860
- Sections 120-B, 409, 419, 420, 467,
468, 471, 474, 465 & 477 -A : - Writ Petition
- for quashing of FIR on the ground of
opportunity of hearing - offence of cheating,
forgery and complicity in corruption - complaint
against government servants for corruption
practice - directions of departmental enquiry
committee
-
interpretation
of
statutes
-
difference explained - between Mandatory &
Directory statutes - if the violation or omission is
invalidating, the statute is mandatory; if not, it
is directory. (Para 14)

(B) Criminal Law - Constitution of India,
1950 - Article - 226, - Prevention Of
Corruption Act, 1988 - Sections 7, 13 & 19
(3) (b), - Indian Penal Code, 1860 -
Sections - 120-B, 409, 419, 420, 467, 468,
471, 474, 465 & 477 -A : - Writ Petition - for
quashing of an F.I.R. - on the ground of
opportunity of hearing - offence of cheating,
forgery and complicity in corruption - complaint
against corruption practice - departmental
enquiry committee - prima facie - finding
returned against petitioner - intent & purpose of
Govt.
orders
to
shield
and
protect
the
Government servants form false & vexatious
complaint - the tenor of Govt. orders is directory
-
if
nay
defect
in
the
fact
finding
enquiry/departmental enquiry would have no
bearing on the vigilance enquiry - an order for
lodging FIR based on prima facie finding cannot
be said to prejudice to the govt. servant -
accordingly writ petition dismissed.
 (Para - 17, 18, 24, 26)

Writ Petition Dismissed. (E-11)

List of Cases cited: -

## Text

488 INDIAN LAW REPORTS ALLAHABAD SERIES
pending trial on stringent conditions in
order to ally the apprehension expressed by
CBI." (emphasis supplied)

28. Analyzing the facts of the case in
light of the law laid explained in the case of
Y.S. Jagan Mohan Reddy, Dataram Singh
and Satender Kumar Antil (Supra), it has
to be taken into consideration that (1) the
applicant has been implicated on the basis
of the statement of a co-accused Chandra
Prakash Kriplani, who has already been
granted bail by this Court; (2) earlier, the
applicant
himself
had
been
granted
anticipatory bail by this Court; (3) the
applicant has no criminal history; (4) the
department had initiated proceedings on
31.12.2019 by issuing a summons under
Section 70 of CGST Act and after
completion
of
the
investigation,
on
22.11.2021 the department has filed a
complaint in the Court of Special Chief
Judicial Magistrate, Agra and, therefore, it
cannot be said that now the applicant is in a
position to influence the investigation of
the case; (5) the applicant is languishing in
jail since 26-09-2021; (6) the maximum
punishment that can be imposed upon the
applicant is five years' imprisonment and
(7) the offence is compoundable as per the
provision contained in Section 138 of the
CGST Act, I am of the considered view that
the applicant is entitled to be released on
bail.

29. In light of the preceding
discussion
and
without
making
any
observation on the merits of the case, the
instant bail application is allowed.

30. Let the applicant Nitin Verma be
released on bail in Case No. IV - CE (9) CP
/ Agra / Nitin / 25119 251/2019, under
Sections 132 (1) (B) (I), Central Goods &
Services Tax Act, 2017, Police Station Hari
Parvat, District Agra on furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of the court
below, subject to the following conditions:-

(i) The applicant will not tamper with
the evidence during the trial.

(ii) The applicant will not influence
any witness.

(iii) The applicant will appear before
the trial court on the date fixed, unless
personal presence is exempted.

(iv) The applicant shall not directly or
indirectly make inducement, threat or
promise to any person acquainted with the
facts of the case so as to dissuade him from
disclosing such facts to the Court to any
police officer or tamper with the evidence.

31. In case of breach of any of the
above condition, the prosecution shall be at
liberty to move an application before this
Court seeking cancellation of the bail.
----------
(2022) 8 ILRA 488
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.06.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Crl. Misc. Writ Petition No. 7101 of 2022

Ajay Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri B.S. Pandey, Sri Arvind Yadav

Counsel for the Respondents:
G.A.

(A) Criminal Law - Constitution of India,
1950 - Article - 226 - Prevention Of
8 All. Ajay Kumar Vs. State of U.P. & Ors.
489
Corruption Act, 1988 - Sections 7, 13,
19(3)(b) & 5(4) - Indian Penal Code, 1860
- Sections 120-B, 409, 419, 420, 467,
468, 471, 474, 465 & 477 -A : - Writ Petition
- for quashing of FIR on the ground of
opportunity of hearing - offence of cheating,
forgery and complicity in corruption - complaint
against government servants for corruption
practice - directions of departmental enquiry
committee
-
interpretation
of
statutes
-
difference explained - between Mandatory &
Directory statutes - if the violation or omission is
invalidating, the statute is mandatory; if not, it
is directory. (Para 14)

(B) Criminal Law - Constitution of India,
1950 - Article - 226, - Prevention Of
Corruption Act, 1988 - Sections 7, 13 & 19
(3) (b), - Indian Penal Code, 1860 -
Sections - 120-B, 409, 419, 420, 467, 468,
471, 474, 465 & 477 -A : - Writ Petition - for
quashing of an F.I.R. - on the ground of
opportunity of hearing - offence of cheating,
forgery and complicity in corruption - complaint
against corruption practice - departmental
enquiry committee - prima facie - finding
returned against petitioner - intent & purpose of
Govt.
orders
to
shield
and
protect
the
Government servants form false & vexatious
complaint - the tenor of Govt. orders is directory
-
if
nay
defect
in
the
fact
finding
enquiry/departmental enquiry would have no
bearing on the vigilance enquiry - an order for
lodging FIR based on prima facie finding cannot
be said to prejudice to the govt. servant -
accordingly writ petition dismissed.
 (Para - 17, 18, 24, 26)

Writ Petition Dismissed. (E-11)

List of Cases cited: -

1. Ajai Kumar Vs St. of U.P. & ors. - order dated
08.06.2022 - Writ-A No. 8868 of 2022,

2. Zubair Bin Sagir Vs St. of U.P & ors., Writ - A
No. 2894 of 20223,

3. Chandrika Prasad Yadav Vs St. of Bihar, 2004
6 SCC 331,

4. U.O.I. Vs Prakash P. Hinduja - (2003) 6 SCC 195,

5. Vineet Narain & ors. Vs U.O.I., 1998 (1) SCC,

6. H.N. Rishbud v. St. of Delhi, 1955 SCR 1150,

7. Prabhu Vs Emperor, AIR 1944 SC 73,

8. Lumbhardar Zutshi Vs The King, AIR 1950 PC
26

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard learned counsel for the
petitioner and learned A.G.A. for the State
respondents.

2. This writ petition has been filed
with the prayer to quash the First
Information
Report
dated
25.05.2002,
registered as Case Crime No. 0122 of 2022
under sections 120-B, 419, 420, 467, 468,
471, 474, 465, 477-A, 409 I.P.C. and
Section 7 & 13 of Prevention of Corruption
Act, 1988, at Police Station Sahjanwa,
District Gorakhpur. Further prayer has been
made not to arrest the petitioner in the
aforesaid case.

3. The Writ Petition is being decided
finally on the consent of the parties without
calling for counter affidavit.

4. It is submitted that pursuant to an
advertisement issued in August 2021, by
the Block Development Officer, Sahjanwa,
District Gorakhpur, inviting tender for
construction and maintenance of road
including installation of street lights, mast
light and installation of R.O. plant etc. The
work came to be allotted to a firm and upon
completion of the work order, petitioner, a
Junior Engineer, measured the construction
work of the road and installation of street
light, mast light and installation of R.O.
plant.
Petitioner
submitted
the
measurement report and certified the
quality of work by making entry in the
490 INDIAN LAW REPORTS ALLAHABAD SERIES
measurement book. Consequently, the
Accounts Officer acted upon the report and
after approval of the Block Development
Officer, payment was released to the firm.

5. It appears, thereafter, a complaint
came to be filed by the members of Kshetra
Panchayat with regard to the quality and
irregularity committed in the construction
work and installation of street light etc. The
District Magistrate, Gorakhpur, constituted
an Enquiry Committee on 12.04.2022,
consisting of District Social Welfare
Officer, Gorakhpur, and Assistant Engineer,
District
Rural
Development
Agency,
Gorakhpur. The Enquiry Committee after
inspection and verification of the work
submitted
an
inquiry
report
dated
13.05.2022, wherein, complicity of the
petitioner, as well as, other officers was
found with regard to the poor quality of
construction of road etc. On the report, the
impugned F.I.R. came to be lodged by the
Assistant
Development
Officer
(Panchayat), Block Sahjanwa, District
Gorakhpur.

6. In the aforenoted factual background,
learned counsel for the petitioner submits that
the petitioner was not given an opportunity of
hearing by the Committee i.e. version of the
petitioner was not sought by the Committee.
Reliance has been placed on an interim order
dated 08.06.2022 passed in Writ-A No. 8868
of 2022 (Ajai Kumar v. State of U.P. and 4
others).
It
is
further
submitted
that
disciplinary inquiry should have been
initiated at the first instance against the
petitioner and at the most the loss caused to
the State could have been recovered from the
salary of the petitioner. It is finally urged that
the complaint on face value is of civil nature,
lodging F.I.R. was not called for as the matter
was within the domain of employeremployee relation.

7. In rebuttal, learned A.G.A. submits
that the Government Orders, issued from
time to time, pertaining to disposal of
complaint of corruption, received against the
government servant was duly complied.
Departmental Enquiry was instituted on the
complaint and on the findings returned by the
Enquiry Committee, complicity of the
petitioner and other officials was found
indulging in corrupt practices. Consequently,
F.I.R. was lodged after approval of the
Competent Authority, therefore, petition is
liable to be dismissed.

8.

Rival
submissions
fall
for
consideration.

9. The facts inter-se parties is not in
dispute.

10. The sole question for consideration
is as to whether a government servant is
required to be given an opportunity of
hearing
by
the
Departmental
Enquiry
Committee before directing lodging of F.I.R.
for corrupt practise, or in the alternative as to
whether mandate of Government Orders
pertaining to enquiry against government
servant has been flouted.

11. The crux of the argument of
learned counsel for the petitioner is that the
Government Orders issued from time to
time governing enquiry on a complaint
filed against the government servant was
not complied in the given facts. Hence, it is
urged that the directions for initiating
vigilance enquiry and the consequent
prosecution is bad, not being in conformity
with the mandate of the Government
Orders. Reliance has been placed on an
interim order1 dated 08.06.2022, to urge
that opportunity of hearing was not given to
the petitioner, therefore, the order directing
8 All. Ajay Kumar Vs. State of U.P. & Ors.
491
lodging the impugned F.I.R. is having civil
consequence.

12. This Court in Zubair Bin Sagir v.
State of U.P & 3 others2, had an
opportunity to the examine the Government
Orders pertaining to complaint filed against
a government officer. It would be apposite
to refer the Government Orders noted in
Zubair Bin Sagir (supra).

(a) Government Order dated 14 April
1981, addressed to all the Head of the
departments, directing that on receiving
complaint against a government servant, it
should be ensured that during the discreet
enquiry the copy of the complaint should
not
be
supplied
to
the
delinquent
government servant and neither the name
of the complainant should be disclosed.
Upon disclosure, the purpose of the enquiry
and secrecy gets compromised. In other
words, the delinquent employee should not
be made aware of the complaint or the
enquiry. If possible the enquiry should be
got conducted by an officer two rank
higher.

(b) Government order dated 9 May
1997,
is
addressed
to
all
the
Principal/Secretaries and Secretaries. The
Government order notes that against ClassI officers fraudulent and false complaints
are
being
received. Accordingly,
the
Government Order to safeguard the interest
of Class-I officers, inter alia, provides: (i)
complaints received on the letter pad of
Member of Parliament and/or Legislative
Assembly,
before
proceeding
on
the
complaint, the contents should be got
verified from the Members; (ii) on
complaints
received
from
other
sources/persons,
before
proceeding
to
enquire, an affidavit of the complainant and
the
material/evidence
in
support
of
complaint must be obtained.

(c) Government Order dated 01
August 1997, provides the procedure for
entertaining and acting on the complaints
of subordinate officers. The procedure is
similar to the Government Order dated 9
May 1997.

(d) Government Order dated 19 April
2012, came to be issued on the directions of
the writ Court order passed in Kumdesh
Kumar Sharma Versus State of U.P. (Writ
Petition No. 4372(SS) of 2011) dated 3
January 2012. The Government directed all
the
Secretaries/Head
of
departments/Commissioners
to
strictly
comply the Government Order dated 9 May
1997 and 1 August 1997 while dealing with
complaints received against government
servants. The direction was again reiterated
vide Government Order dated 6 August
2018.

(e) With regard to lodging of F.I.R. it
is provided in Government Order dated 19
July 2005, and reiterated by Government
Order dated 24 May 2012, that disciplinary
proceedings/departmental enquiry, in the
first instance, should be initiated against the
government servant and upon a prima facie
finding being returned in the enquiry with
regard to the culpability of the officer,
F.I.R. thereafter should be directed to be
lodged.

13. On bare perusal of the Government
Orders,
it
is
evident
that
the
directions/instructions provided therein is
to shield the government servant from
frivolous and false complaints. But, at the
same time, the government orders nowhere
restricts the State authority from carrying
out a discreet/confidential enquiry having
regard to the nature of allegations made in
the complaint, though, the whereabouts of
the complainant, his identity or affidavit is
not available. It is always open for the
competent
authority/Government
to
492 INDIAN LAW REPORTS ALLAHABAD SERIES
conduct
discreet
enquiry
on
any
information received depending upon the
nature of allegations. The directions in the
Government Orders, primarily, seeks to
protect the government servants from the
onslaught of frivolous complaints. But that
would
certainly
not
mean
that
the
government servants can take shelter under
the Government Orders to escape enquiry
and prosecution for their corrupt acts. It is
not open to the government servant to
contend that the vigilance enquiry would
vitiate for the reason of defect, either with
the
fact
finding
enquiry/departmental
enquiry initiated on a fictitious complaint
or no opportunity of hearing was given to
the petitioner.

14. A provision in a statute is
mandatory if the omission to follow it
renders the proceeding to which it relates
illegal and void, while a provision is
directory if its observance is not necessary
to the validity of the proceeding, and a
statute may be mandatory in some respects
and directory in others. The difference
between mandatory and directory statutes is
one of effect only. If the violation or
omission is invalidating, the statute is
mandatory; if not, it is directory.

15. The Supreme Court of India has
been stressing time and again that the
question whether statute is mandatory or
directory is not capable of generalization
and that in each case the court should try
and get at the real intention of the
legislature
by
analyzing
the
entire
provisions of the enactment and the scheme
underlying it.

16. In Chandrika Prasad Yadav v
State of Bihar3, it was held that, the question
as to whether a statute is directory or
mandatory would not depend upon the
phraseology used therein. The principle as
regards the nature of the statute must be
determined having regard to the purpose and
object the statute seeks to achieve.

17. The principle, though applicable to
a provision of a statute, applied to the
Government Orders under consideration, it is
evident that the intent and purpose of the
Government Orders is to shield and protect
the Government servants from false and
vexatious
complaints.
The
Government
Orders, however, do not mandate that in the
event of non compliance of the provisions
therein would vitiate the fact finding enquiry,
followed by the vigilance enquiry and
prosecution, provided there is material to
support the decision of the Government.

18. Further, the Government Order
dated 19 July 2005, reiterated by Government
Order dated 24 May 2012, provides that
before
lodging
an
F.I.R.
against
the
government
servant,
a
disciplinary
proceedings/departmental
enquiry
should
necessarily be conducted and in the enquiry
culpability of the government servant is
found only then F.I.R. should be lodged. In
the facts in hand a departmental enquiry was
constituted
by
the
District
Magistrate
returning a prima facie finding with regard to
the involvement and culpability of petitioner
and other officers noted in the enquiry report.
In any case, as noted herein above, the tenor
of Government Orders is directory, therefore,
any defect in the fact finding enquiry or
departmental enquiry would have no bearing
on the vigilance enquiry/prosecution. The
Government Order dated 14 April 1981,
specifically prohibits opportunity of hearing
to the government servant at the fact finding
stage.

19. In Union of India v. Prakash P.
Hinduja4, though the facts therein are not
8 All. Ajay Kumar Vs. State of U.P. & Ors.
493
similar but an analogy can be drawn.
Supreme Court rejected the argument that
since the directions issued by the Court in
Vineet Narain and others v. Union of
India5, was not followed by the CBI and
Chief Vigilance Commissioner (CVC)
before filing of the charge sheet, the
consequential proceedings of prosecution
would be a nullity. The Supreme Court
declined to quash the proceedings merely
on the defect of not complying the
directions.

20. The High Court held that in
terms of directions issued in Vineet
Narain (supra), CVC is not entrusted
with the responsibility of CBI function.
CBI was to report to CVC about all cases
taken up by it for investigation; progress
of the investigation; cases in which
charge-sheets are filed and their progress.
CBI was bound to place the final results
of its investigation along with all material
collected
before
the
CVC
for
the
purposes of review. CBI had not placed
before the CVC the results of its
investigations and had by-passed it by
filing a charge-sheet before the Special
Judge. The High Court in view of the
mandate in Vineet Narain (supra) not
being complied by the CBI allowed the
writ petition and quashed the cognizance
taken by the Special Judge and all
consequential proceedings. The Supreme
Court reversed the decision of the High
Court.

21. In H.N. Rishbud v. State of
Delhi6, the Supreme Court was called upon
to consider the effect of investigation having
been done by a police officer below the rank
of a Deputy Superintendent of Police
contrary to the mandate of Section 5(4) of
Prevention of Corruption Act, 1947. The
Court held as follows:

"......Here we are not concerned with
the effect of the breach of a mandatory
provision regulating the competence or
procedure
of
the
Court
as
regards
cognizance or trial. It is only with reference
to such a breach that the question as to
whether it constitutes an illegality vitiating
the proceedings or a mere irregularity
arises.
A
defect
or
illegality
in
investigation, however serious, has no
direct bearing on the competence or the
procedure relating to cognizance or trial."

22. Supreme Court referring Prabhu
v. Emperor7 and Lumbhardar Zutshi v.
The King8, held that if cognizance is in
fact taken on a police report initiated by the
breach of a mandatory provision relating to
investigation, there can be no doubt that the
result of the trial, which follows it cannot
be set aside unless the illegality in the
investigation can be shown to have brought
about a miscarriage of justice and that an
illegality committed in the course of
investigation
does
not
affect
the
competence and the jurisdiction of the
Court for trial.

23. Further, Sub-clause (3) (b) of
Section 19 of Prevention of Corruption Act,
1988, prohibits that no court shall stay the
proceeding under this Act on the ground of
any error, omission or irregularity in the
sanction for prosecution. Section 19 (3)(b)
is extracted:

"19. Previous sanction necessary for
prosecution.--(1) No court shall take
cognizance of an offence punishable under
sections 7, 10, 11, 13 and 15 alleged to
have been committed by a public servant,
except with the previous sanction 1 [save as
otherwise provided in the Lokpal and
Lokayuktas Act, 2013 (1 of 2014)]--

(a)...........................
494 INDIAN LAW REPORTS ALLAHABAD SERIES
(3) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2
of 1974),--

(a) ...........

(b)
no
court
shall
stay
the
proceedings under this Act on the ground
of any error, omission or irregularity in
the sanction granted by the authority,
unless it is satisfied that such error,
omission or irregularity has resulted in a
failure of justice;"

24. Insofar, interim order dated
08.06.2022 (Writ-A No. 8868 of 2022)
directing lodging of the first information
report was stayed by this Court on the
gorund of having drastic civil consequence
and the order being passed without
opportunity of hearing being given to the
petitioner. The interim order does not bind
this Court, as the same appears to have
been passed, in the given facts. It appears
that the learned counsel for the petitioner
had not brought to the notice of the
learned Single Judge of the Government
Orders, wherein, it has been categorically
provided that at the stage of fact finding
enquiry neither the
identity of
the
complainant would be disclosed to the
government servant against whom the
discreet inquiry is directed, nor, the
delinquent government servant would be
informed or given an opportunity in an
enquiry that is being conducted against
him on the allegations of the complaint.
Status of the inquiry on the complaint
received against the government servant
for corrupt practices is merely a fact
finding inquiry so as to ascertain the
veracity and prima facie truthfulness of
the allegations made in the complaint.
Therefore, submission of the learned
counsel for the petitioner that petitioner
should have been given an opportunity of
hearing is unfounded. Further, petitioner
does not dispute the fact that he was a
Junior Engineer and had undertaken the
measurement of the works which was
found by the Departmental Enquiry
Committee
of
being
substandard,
therefore, prima facie causing loss to the
State
Ex-chequer.
In
view
of
the
Government Orders referred earlier, the
authorities were justified in lodging the
F.I.R. against the delinquent government
officials for indulging in acts and omission
of corruption. An order of the authority
direction lodging of first information
report based on prima facie finding
returned by a Departmental Enquiry
cannot be said to prejudice the government
servant. The FIR merely sets in motion the
criminal process which is as per law.

25. Having regard to the facts and
circumstances, learned counsel failed to
make out a case for quashing of the
impugned F.I.R.

26. The writ petition is, accordingly,
dismissed.
----------
(2022) 8 ILRA 494
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Government Appeal No. 26 of 2021

State of U.P. ...Appellant
Versus
Anuj & Ors. ...Opp. Parties

Counsel for the Appellant:
A.G.A.

Counsel for the Opp. Parties:
Sri Birendra Singh Khokher, Sri Vijay Kumar