# Giri Raj Sharma v. U.O.I

- **Citation:** (2021) 11 ILRA 414
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-02
- **Case number:** U/S 482/378/407 . No. 4050 of 2021
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/giri-raj-sharma-v-u-o-i-46569
- **Pages:** 10

## Headnote

Money Laundering Act, 2002 - Sections 3 & 4 -
Cognizance taken against the petitioner on
supplementary
prosecution
complaint-for
offence u/s3 and 4 of Prevention of money
laundering Act, 2002-No ban on exercising of
inherent power where abuse of process of
court or extraordinary situation excites Court's
jurisdiction-E.D. has copy pasted the relevant
portion of charge sheet of the CBI in the
supplementary prosecution complaint-before
taking the cognizance -provision of section 44
(1) (ii) of the Act, 2002 be considered-to
consider further evidence-operation of the
impugned order stayed.

Petition pending. (E-9)

List of Cases cited:

## Text

414 INDIAN LAW REPORTS ALLAHABAD SERIES
of the proceedings at the initial stage. The test to
be
applied
by
the
court
is
whether
uncontroverted allegation as made prima facie
establishes the offence and whether chances of
ultimate conviction are bleak and no useful
purpose is likely to be served by allowing
criminal proceedings to be continue. In S.W.
Palankattkar & others Vs. State of Bihar,
2002 (44) ACC 168, it has been held by the
Hon'ble Apex Court that quashing of the
criminal proceedings is an exception than a rule.
The inherent powers of the High Court under
Section 482 Cr.P.C itself envisages three
circumstances
under
which
the
inherent
jurisdiction may be exercised:-(i) to give effect
an order under the Code, (ii) to prevent abuse of
the process of the court ; (iii) to otherwise secure
the ends of justice. The power of High Court is
very wide but should be exercised very
cautiously to do real and substantial justice for
which the court alone exists.

10. The High Court would not embark upon an
inquiry as it is the function of the Trial Judge/Court.
The interference at the threshold of quashing of
the criminal proceedings in case in hand cannot
be said to be exceptional as it discloses prima facie
commission of an offence. In the result, the prayer
for quashing of proceedings, charge sheet as well
as cognizance and summoning order under
Section 3/5/8 of Uttar Pradesh Prevention of Cow
Slaughter Act, 1955 is refused. There is no merit
in this application filed by the applicants, under
Section 482 Cr.P.C.

11. In view of the aforesaid submissions
made by learned counsel for the parties and
considering the judgment passed by Hon'ble
Apex Court referred above, this court finds no
merit in the present application and the same is
liable to be dismissed.

12. Accordingly, this application under
Section 482 Cr.P.C. filed by the applicants is
dismissed.
----------
(2021)11ILR A414
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.11.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

U/S 482/378/407 . No. 4050 of 2021

Giri Raj Sharma ...Applicant
Versus
U.O.I. ...Opposite Party

Counsel for the Applicant:
Pranjal Krishna

Counsel for the Opposite Party:
A.S.G.

Money Laundering Act, 2002 - Sections 3 & 4 -
Cognizance taken against the petitioner on
supplementary
prosecution
complaint-for
offence u/s3 and 4 of Prevention of money
laundering Act, 2002-No ban on exercising of
inherent power where abuse of process of
court or extraordinary situation excites Court's
jurisdiction-E.D. has copy pasted the relevant
portion of charge sheet of the CBI in the
supplementary prosecution complaint-before
taking the cognizance -provision of section 44
(1) (ii) of the Act, 2002 be considered-to
consider further evidence-operation of the
impugned order stayed.

Petition pending. (E-9)

List of Cases cited:

1. New India Assurance Co. Ltd. Vs Krishna Kumar
Pandey (Criminal Appeal No.1852 o 2019 arising out
of Special Leave to Appeal (Crl.) No.8499 of 2014)

2. Prabhu Chawla Vs St. of Raj.& anr. reported in
(2016) 16 SCC 30

3. Smt. Janata Jha & anr. Vs Assistant Director,
Directorate of Enforcement, Government of India &
anr. (CRLMC No.114 of 2011 (Application U/S 482
Cr.P.C.))
11 All. Giri Raj Sharma Vs. U.O.I.
415
4. Pepsi Foods Ltd. & another Vs S.J.M. & ors.
reported in (1998) 5 SCC 749

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri Pranjal Krishna, learned
counsel for the petitioner and Sri Shiv P. Shukla,
learned counsel for the opposite parties.

2. On the first date of admission, this Court
has passed the order dated 23.10.2021 as under:-

"Heard Sri Pranjal Krishna, learned
counsel for the petitioner and Sri S.B. Pandey,
learned Assistant Solicitor General of India and
the learned Senior Advocate assisted by Sri Shiv
P.
Shukla,
learned
Central
Government
Standing Counsel for the opposite parties.

By
means
of
this
petition,
the
petitioner has prayed the following relief:-

"Wherefore, it is most respectfully
prayed that this Hon'ble Court may graciously
be pleased to quash the petitioner's prosecution
in the Criminal Case No.1154 of 2021
(Directorate of Enforcement, Lucknow vs. Giri
Raj Sharma) under Sections 3 & 4 of Prevention
of Money Laudering Act, 2002 arising out of
ECIR/09/PMLA/LZO/2013 and pending before
the learned Special Court (PMLA), Lucknow
including
the
Supplementary
Prosecution
Complaint dated 29.06.2020 and the cognizance
order dated 11.08.2021 so as to secure the ends
of justice."

Learned counsel for the petitioner has
contended that the present case is a glaring
example of misuse of the process of law inasmuch
as the learned Special Judge by taking cognizance
against the petitioner on the supplementary
prosecution complaint dated 29.06.2020 (E.D.) for
allegedly committing an offence under Section 3
punishable under Section 4 of Prevention of
Money Laudering Act, 2002 (here-in-after referred
to as the "Act, 2002") without taking into account
the fact that that petitioner is being falsely
prosecuted in this case. Therefore, he is humbly
praying for the extraordinary jurisdiction of this
Court under Section 482 Cr.P.C.

Sri Pranjal Krishan, learned counsel for
the petitioner has drawn attention of this Court
toward running page 58 of the petition, which is
portion of the charge-sheet filed by the C.B.I. on
13.10.2013, whereby the alleged culpability of the
present petitioner has been indicated. Sri Pranjal
Krishna has read over the relevant portion
relating to the present petition in the C.B.I.
charge-sheet and thereafter drawn attention of this
Court towards the complaint filed by the E.D.
seeking attention of running page 133 of the
petitioner wherein the role of the accused i.e. the
present petitioner is blank and conclusion of the
investigation is verbatim the same as of the C.B.I.

Sri Pranjal Krishna has submitted that if
the E.D. has arrived on the conclusion after
investigation, if any, the conclusion of E.D. should
have been shown to be an independent conclusion
but E.D. has narrated the same conclusion as of
C.B.I. without application of mind.

Sri Pranjal Krishna has also submitted
that the supplementary complaint has been filed
in sheer, illegal and unwarranted manner
inasmuch as such supplementary complaint
could have not been filed invoking the
explanation No.2 of Section 44 (1) of Act, 2002.

Per contra, the learned counsel for the
opposite parties has raised a preliminary
objection regarding maintainability of this
petition saying that as per Section 47 of the Act,
2002 instead of filing the petition under Section
482 Cr.P.C., the petitioner should file revision.

However on that objection, Sri Pranjal
Krishna, learned counsel for the petitioner has
referred the dictum of Hon'ble Apex Court
416 INDIAN LAW REPORTS ALLAHABAD SERIES
rendered in re: State of Haryana and others vs.
Bhajan Lal and others reported in (1992) Supp.
(1) SCC 335 and Pepsi Foods Ltd. and another
vs. Special Judicial Magistrate and others
reported in (1998) 5 SCC 749 by saying that this
petition is very well maintainable.

Since the learned counsel for opposite
parties wants to address on the aforesaid legal
submission of learned counsel for the petitioner,
for that, he prays some shortest time, therefore,
list/ put up this case on 27.10.2021 as fresh in
the additional cause list to enable the learned
counsel for the opposite parties to address the
Court on the point of maintainability.

Learned counsel for the petitioner
shall also come prepared on the point of
maintainability on the next date."

3. Replying the objection regarding
maintainability of the present petition filed
under Section 482 Cr.P.C., Sri Pranjal Krishna
has drawn attention of this Court towards
Section 47 of the Prevention of Money
Laundering Act, 2002 (here-in-after referred to
as the "Act, 2002"), which reads as under:-

"47. Appeal and revision. -The High
Court may exercise, so far as may be applicable,
all the powers conferred by Chapter XXIX or
Chapter XXX of the Code of Criminal
Procedure, 1973 (2 of 1974), on a High Court,
as if a Special Court within the local limits of
the jurisdiction of the High Court were a Court
of Session trying cases within the local limits of
the jurisdiction of the High Court."

4. Sri Pranjal Krishna has contended that
under Section 47 of the Act, 2002, the High
Court has got the discretionary power of appeal
and revision. The term 'may' has been used to
mean they are in addition and in supplement to
Section65 of the Act, 2002 which talks about the
applicability of the Provisions of Cr.P.C. to
cases brought under the Act, 2002 which very
well include the provisions of Section 482
Cr.P.C. Besides, by means of this petition, the
petitioner has not only assailed the cognizance
order dated 11.08.2021 but has prayed for
quashing
the
Supplementary
Prosecution
Complaint
dated
29.06.2020.
Under
the
revisional jurisdiction the cognizance order can
be assailed but the Supplementary Prosecution
Complaint may not be assailed as it would be
beyond the scope of revision. However, under
the inherent jurisdiction of this Court under
Section 482 Cr.P.C. both the cognizance order
as well as the Supplementary Prosecution
Complaint may be assailed. Therefore, in the
given circumstances, the present petitioner may
not be relegated to file the criminal revision
instead of petition under Section 482 Cr.P.C.

5. In support of his aforesaid arguments,
Sri Pranjal Krishna has cited the decision of
Hon'ble Apex Court in re: New India Assurance
Co. Ltd. vs. Krishna Kumar Pandey (Criminal
Appeal No.1852 o 2019 arising out of Special
Leave to Appeal (Crl.) No.8499 of 2014),
whereby vide para-8 the Hon'ble Apex Court has
observed as under:-

"8. The scope of the revisional
jurisdiction of the High Court (or Sessions
Court) under Section 397 Cr.P.C is limited to
the extent of satisfying itself as to the
correctness, legality or propriety of any finding,
sentence or order passed by an inferior Court.
The revisional Court is entitled to look into the
regularity of any proceeding before an inferior
Court. The revisional court is entitled to look
into the regularity of any proceeding before an
inferior Court. As reiterated by this Court in a
number of cases, the purpose of this revisional
power is to set right a patent defect or an error
of jurisdiction or law."

6. Sri Pranjal Kirshna has also cited the
dictum of Hon'ble Apex Court in re: Prabhu
11 All. Giri Raj Sharma Vs. U.O.I.
417
Chawla vs. State of Rajasthan and another
reported in (2016) 16 SCC 30 referring paras-4,
5, 6, 7 & 8, which read as under:-

"4. Mr. P.K. Goswami learned senior
advocate for the appellants supported the view
taken by this Court in the case Dhariwal
Tobacco Products Ltd. (supra). He pointed out
that in paragraph 6 of this judgment Justice S.
B. Sinha took note of several earlier judgments
of this Court including that in R.P. Kapur v.
State of Punjab and Som Mittal v. Govt. of
Karnataka for coming to the conclusion that:
(Dhariwal Case, SCC p. 372)

"6......only because a revision petition
is maintainable, the same by itself, ... would not
constitute a bar for entertaining an application
under Section 482 of the Code."

5. Mr. Goswami also placed strong
reliance upon judgment of Krishna Iyer, J. in a
Division Bench in the case of Raj Kapoor and
Ors v. State and Ors. Relying upon judgment of
a Bench of three Judges in the case of Mathu
Limaye v. The State of Maharashtra and quoting
therefrom, Krishna Iyer, J. in his inimitable style
made the law crystal clear in paragraph 10
which runs as follows:

"10. The first question is as to whether
the inherent power of the High Court under
Section 482 stands repelled when the revisional
power under Section 397 overlaps. The opening
words of Section 482 contradict this contention
because nothing of the Code, not even Section
397 , can affect the amplitude of the inherent
power preserved in so many terms by the
language of Section 482 . Even so, a general
principle pervades this branch of law when a
specific provision is made: easy resort to
inherent power is not right except under
compelling circumstances. Not that there is
absence of jurisdiction but that inherent power
should not invade areas set apart for specific
power under the same Code. In Madhu Limaye
v. The State of Maharashtra this Court has
exhaustively and, if I may say so with great
respect, correctly discussed and delineated the
law beyond mistake. While it is true that Section
482 is pervasive it should not subvert legal
interdicts written into the same Code, such, for
instance, in Section 397 (2). Apparent conflict
may arise in some situations between the two
provisions and a happy solution

'would be to say that the bar provided
in sub-section (2) Section 397 operates only in
exercise of the revisional power of the High
Court, meaning thereby that the High Court will
have no power of revision in relation to any
interlocutory order. Then in accordance with
one or the other principles enunciated above,
the inherent power will come into play, there
being no other provision in the Code for the
redress of the grievance of the aggrieved party.
But then, if the order assailed is purely of an
interlocutory
character
which
could
be
corrected in exercise of the revisional power of
the High Court under the 1898 Code, the High
Court will refuse to exercise its inherent power.
But in case the impugned order clearly brings
about a situation which is an abuse of the
process of the Court or for the purpose of
securing the ends of justice interference by the
High Court is absolutely necessary, then nothing
contained in Section 397 (2) can limit or affect
the exercise of the inherent power by the High
Court. But such cases would be few and far
between. The High Court must exercise the
inherent power very sparingly. One such case
would be the desirability of the quashing of a
criminal
proceeding
initiated
illegally,
vexatiously or as being without jurisdiction'
(SCC pp.555-56, para 10).

In short, there is no total ban on the
exercise of inherent power where abuse of the
process of the court or other extraordinary
situation excites the court's jurisdiction. The
418 INDIAN LAW REPORTS ALLAHABAD SERIES
limitation is self-restraint, nothing more. The
policy of the law is clear that interlocutory
orders, pure and simple, should not be taken up
to the High Court resulting in unnecessary
litigation and delay. At the other extreme, final
orders are clearly capable of being considered
in exercise of inherent power, if glaring injustice
stares the court in the face. In between is a
tertium quid, as Untwalia, J. has pointed out as
for example, where it is more than a purely
interlocutory order and less than a final
disposal. The present case falls under that
category where the accused complain of
harassment through the court's process. Can we
state that in this third category the inherent
power can be exercised? In the words of
Untwalia, J.: (SCC p. 556, para 10) process of
the Court and/or to secure the ends of justice.
The label of the petition filed by an aggrieved
party is immaterial. The High Court can
examine the matter in an appropriate case under
its
inherent
powers.
The
present
case
undoubtedly falls for exercise of the power of the
High Court in accordance with Section 482 of
the 1973 Code, even assuming, although not
accepting, that invoking the revisional power of
the High Court is impermissible.'

I am, therefore clear in my mind that
the inherent power is not rebuffed in the case
situation before us. Counsel on both sides,
sensitively responding to our allergy for
legalistics, rightly agreed that the fanatical
insistence on the formal filing of a copy of the
order under cessation need not take up this
court's time. Our conclusion concurs with the
concession of counsel on both sides that merely
because a copy of the order has not been
produced, despite its presence in the records in
the court, it is not possible for me to hold that
the entire revisory power stands frustrated and
the inherent power stultified."

"6. In our considered view any
attempt to explain the law further as regards the
issue relating to inherent power of High Court
under Section 482 Cr.P.C. is unwarranted. We
would simply reiterate that Section 482 Cr.P.C.
 begins with a non-obstante clause to state:

"482. Saving of inherent powers of
High Court.- Nothing in this Code shall be
deemed to limit or affect the inherent powers of
the High Court to make such orders as may be
necessary to give effect to any order under this
Code, or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice."

A fortiori, there can be no total ban on
the exercise of such wholesome jurisdiction
where, in the words of Krishna Iyer, J.

"abuse of the process of the Court or
other extraordinary situation excites the court's
jurisdiction. The limitation is self-restraint,
nothing more."

We venture to add a further reason in
support. Since Section 397 Cr.P.C. is attracted
against all orders other than interlocutory, a
contrary view would limit the availability of
inherent powers under Section 482 Cr.P.C. only
to petty interlocutory orders! A situation wholly
unwarranted and undesirable.

7. As a sequel, we are constrained to
hold that the Division Bench, particularly in
paragraph 28, in the case of Mohit alias Sonu
and another (supra) in respect of inherent power
of the High Court in Section 482 of the Cr.P.C.
does not state the law correctly. We record our
respectful disagreement.

8. In our considered opinion the
learned Single Judge of the High Court should
have followed the law laid down by this Court in
the case of Dhariwal Tobacco Products Ltd.
(supra) and other earlier cases which were cited
but wrongly ignored them in preference to a
judgment of that Court in the case of Sanjay
11 All. Giri Raj Sharma Vs. U.O.I.
419
Bhandari (supra) passed by another learned
Single Judge on 05.02.2009 in S.B. Criminal
Miscellaneous Petition No. 289 of 2006 which is
impugned in the connected Criminal Appeal
arising out of Special Leave Petition No. 4744 of
2009. As a result, both the appeals, one
preferred by Prabhu Chawla and the other by
Jagdish Upasane & Ors. are allowed. The
impugned common order dated 02.04.2009
passed by the High Court of Rajasthan is set
aside and the matters are remitted back to the
High Court for fresh hearing of the petitions
under Section 482 of the Cr.P.C. in the light of
law explained above and for disposal in
accordance with law. Since the matters have
remained pending for long, the High Court is
requested to hear and decide the matters
expeditiously, preferably within six months."

7. In view of the aforesaid decisions of
Hon'ble Apex Court, Sri Pranjal Krishna has
submitted that the present petition filed under
Section 482 Cr.P.C. is maintainable.

8. Per contra, Sri Shiv P. Shukla, learned
counsel for the opposite parties has cited the
decision of Orissa High Court dated 16.12.2013
in re: Smt. Janata Jha and another vs.
Assistant Director, Directorate of Enforcement,
Government of India and another (CRLMC
No.114 of 2011 (Application U/S 482 Cr.P.C.))
by submitting that one petition was filed before
the High Court under Section 482 Cr.P.C. under
the same Act i.e. Act, 2002 stand dismissed by
the Orissa High Court observing that "it may be
made clear that the question as to whether the
inherent power available under Section 482
Cr.P.C. can be exercised for quashing a
proceeding initiated under PMLA or not, is left
open."

9. After considering the arguments of the
parties on the point of maintainability, I find that
the Orissa High Court in re: Smt. Janata Jha
and another (supra) has not held that the
petitioner under Section 482 Cr.P.C. is not
maintainable as the petitioners of that petition
have not availed the remedy of revision, rather it
has been observed that for quashing the
proceeding initiated under the Act, 2002 the
High Court may examine as to whether the
inherent powers are to be invoked or not.

10. On the other hand, the Hon'ble Apex
Court in re: New India Assurance Company
Ltd. (supra) has clearly held that the scope of
revisional jurisdiction of the High Court is
limited to the extent of satisfying itself as to the
correctness, legality or propriety of any finding,
sentence or order passed by an inferior court.
The purpose of revisional power is to set right a
patent defect or an error of jurisdiction or law.

11. Likewise, the Hon'ble Apex Court in
re:Prabhu Chawla (supra) has observed that
there is no ban on the exercise of inherent power
where abuse of the process of the court or other
extraordinary situation excites the court's
jurisdiction. The policy of law is clear that
interlocutory orders, pure and simple, should not
be taken up to the court resulting unnecessary
litigation and delay.

12. Therefore, keeping in view the prayers
made in the petition, the inherent jurisdiction of
this Court enshrined under Section 482 Cr.P.C.
may be invoked and, therefore, the present
petition is maintainable.

13. So far as the prima-facie satisfaction of
the Court for interim relief is concerned, I would
refer Annexure No.4 of the petition which is a
Prosecution
Complaint
No.ECIR/09/PMLA/LZO/2013 filed by the
Directorate
of
Enforcement
(here-in-after
referred to as the "E.D.") on 30.06.2018.
Thereafter, I would refer Annexure No.5 of the
petition, which is a Supplementary Prosecution
Complaint, the impugned complaint filed on
29.06.2020.
420 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Admittedly, the present petitioner was not
accused in the Prosecution Complaint filed on
30.06.2018. However, in the Supplementary
Prosecution Complaint, which was filed on
29.06.2020, the present petitioner was made
accused.

15. Sri Pranjal Krishna, learned counsel for
the petitioner has drawn attention of this Court
towards various statements of various persons
recorded under Section 50 of the Act, 2002,
pursuant to which, the Supplementary Prosecution
Complaint has been filed against the petitioner. It
would be apt to indicate the names of those persons
and dates when the statements have been recorded.

(a) Statement of Mr. Prabhat Chand
Gopalan dated 25.10.2016

(b) Statement of the present petitioner
(Giri Raj Sharma) dated 08.11.2016

(c) Statement of Mr. Dilip Kumar dated
13.01.2015 and 18.10.2016

(d) Statement of Mr. Jonas Lal Marandi
dated 09.01.2015 and 25.10.2016

(e) Statement of Mr. Dhirendra Kumar
Singh dated 16.09.2016, 09.11.2016 & 10.11.2016

(f) Statement of Mr. Bhupendra Singh
dated 21.09.2016

(g) Statement of Mr. Rakesh Kumar
Gupta dated 27.10.2016

(h) Statement of Mr. B.R. Arora dated
23.01.2015, 19.10.2016 & 21.11.2017

(i) Statement of Mr. A.C. Srivastava
dated 29.06.2018

(j) Statement of Mr. H.C. Pant dated
29.06.2018

The careful perusal thereof would clearly
reveal that all the aforesaid statements of the
aforesaid persons were recorded under Section
50 of the Act, 2002 before 30.06.2018 i.e. the
date of filing the Prosecution Complaint before
the learned trial court.

16. It would be apposite to refer the
explanation (ii) of Section 44 (1) of the Act,
2002
as
the
Supplementary
Prosecution
Complaint could have been filed by the ED
under the aforesaid provisions of law

"44. Offence triable by Special
Courts.-
(1)
Notwithstanding
anything
contained in the Code of Criminal Procedure,
1973 (2 of 1974),-

(ii) the complaint shall be deemed to
include any subsequent complaint in respect of
further investigation that may be conducted to
bring
any
further
evidence,
oral
or
documentary, against any accused person
involved in respect of the offence, for which
complaint has already been filed, whether
named in the original complaint or not."

17. As per the aforesaid provision of law,
further investigation is permissible but that may
be conducted to bring any 'further evidence', oral
or documentary, against any accused person
involved in respect of offence, for which, the
complaint has already been filed, whether he is
named in the original complaint or not.

18. So as to examine the authenticity or
legality
of
the
impugned
Supplementary
Prosecution Complaint in the instant case, this
Court has to examine as to whether the
Supplementary Prosecution Complaint has been
filed on the basis of any 'further evidence' . On
the basis of material available on record, the
prosecution has not considered any 'further
evidence', rather the statements of various
persons, which have been recorded under
11 All. Giri Raj Sharma Vs. U.O.I.
421
Section 50 of the Act, 2002 prior to the date
when the first complaint was filed on
30.06.2018, have been considered.

19. On a pin point query being made from
learned counsel for the opposite parties as to
why the petitioner has not been made accused in
the original complaint which was filed on
30.06.2018 on the basis of statements of various
persons recorded from 2015 onwards till
29.06.2018, the learned counsel for the opposite
parties has submitted that the ED has got ample
power to prosecute the petitioner even on the
basis of earlier statements. On the question
about 'further evidence' which has been procured
after filing the original complaint, learned
counsel for the opposite parties has got no
specific instructions on that point.

20. On being further asked from learned
counsel for the opposite parties as to whether
any specific allegations of money laundering
have been made out against the petitioner in the
Supplementary Prosecution Complaint so as to
attract the provisions of Section 3 of the Act,
2002, Sri Shiv P. Shukla has submitted that
since the petitioner was responsible for
correctness of the bills submitted by the
Contractor and the maintenance of necessary
records in this regard and he was also
responsible for implementation of contract
provisions which he failed to do so, therefore, he
abused his official position and fraudulently
prepared the entries of forged bills of Cement,
Bitumen and Recron in the relevant Registers,
therefore, he is also responsible.

21. Therefore, in view of the above, I am
of the considered opinion that the question as to
whether the allegation of abuse of official
position by not taking proper care and
precaution in verifying the entries and bills
would be treated as an offence under the Act,
2002, may be considered after exchange of
affidavits.

22. I have noted one more thing from
Annexure No.2, which is a charge-sheet filed by
the C.B.I. before the learned trial court of C.B.I.
on 30.10.2013 indicating the culpability of the
present petitioner. The relevant portion thereof is
at running page 58 of the petition whereby the
petitioner has been held responsible for abusing
his official position as such a public servant and
further allegation is relating to accepting an
illegal gratification from the Contractor Sri B.R.
Arora.

23.

The
impugned
Supplementary
Prosecution Complaint against the petitioner
alleges the same allegation as has been levelled
by the C.B.I. At running page 133 of the
petition, the conclusion of investigation by the
ED has been indicated verbatim the same
allegation with the same language has been
levelled which has been levelled by the C.B.I..

24. If it was an independent investigation
by the ED, the finding and observation should be
placed in a different manner or atleast the
language of the charge-sheet of C.B.I. should
not be copied. Prima-facie, it appears that the
ED has cut the relevant portion of the chargesheet of the C.B.I., copied and pasted it in his
Supplementary Prosecution Complaint, which
may not be appreciated. Besides, if the ED was
relying the same allegation of C.B.I charge-sheet
which was filed on 30.10.2013, the petitioner
should have been made accused in the original
complaint which was filed on 30.06.2018.
Therefore, prima-facie, it appears that without
following the due procedure of law and without
giving proper explanation of the aforesaid chain
of facts and incidences, the Supplementary
Prosecution Complaint has been filed against the
petitioner.

25. Since the impugned Supplementary
Prosecution Complaint was filed before the
learned trial court of ED, therefore, before
taking
cognizance
on
the
aforesaid
422 INDIAN LAW REPORTS ALLAHABAD SERIES
Supplementary
Prosecution
Complaint
the
provisions of Section 44 (1) (ii) of the Act, 2002
should have been considered. The learned trial
court must ask from the prosecution as to what
'further evidence', oral or documentary has been
collected after filing the first prosecution
complaint to prosecute the petitioner in the
present
case
inasmuch
as
the
further
investigation may only be conducted to bring
any 'further evidence', oral or documentary,
against the accused person.

26. In the present case, the learned trial
court of ED vide the impugned order dated
11.08.2021 (Annexure No.6) has taken
cognizance
against
of
the
second
Supplementary Prosecution Complaint and
issued
summon
against
the
petitioner
without adverting to the relevant factual and
legal aspects.

27. The Hon'ble Apex Court in re:
Pepsi Foods Ltd. & another vs. Special
Judicial Magistrate & others reported in
(1998) 5 SCC 749 vide para-28 has
mandated that the order of learned trial court
summoning the accused must reflect that he
has applied his mind to the facts of the case
as well as law applicable thereto. If the
learned trial court summons an accused
person without carefully adverting to the
facts and law of the case, the said
summoning order would be bad in law. For
convenience, para-28 reads as under:-

"28. Summoning of an accused in a
criminal case is a serious matter. Criminal
law cannot be set into motion as a matter of
course. it is not that the complainant has to
bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of
the magistrate summoning the accused must
reflect that he has applied his mind to the
facts of the case and the law applicable
thereto. He has to examine the nature of
allegations made in the complaint and the
evidence both oral and documentary in
support thereof and would that be sufficient
for the complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before
summoning
of
the
accused.
Magistrate has to carefully scrutinise the
evidence brought on record and may even
himself put questions to the complainant and
his witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise
and then examine if any offence is prima
facie committed by all or any of the
accused."

28.

In
view
of
the
facts
and
circumstances
stated
here-in-above,
it
appears
that
the
matter
requires
consideration.

29. Let the counter affidavit be filed
within a period of three weeks. Rejoinder
affidavit,if any, may be filed within a week
thereafter.

30. List this petition in the week
commencing 29.11.2021 as fresh.

31. Till the next date of listing, the
operation
and
implementation
of
the
impugned
cognizance
order
dated
11.08.2021
(Annexure
No.6)
taken
in
Criminal Case No.1154 of 2021 (Directorate
of Enforcement, Lucknow vs. Giri Raj
Sharma) under Section 3 & 4 of Prevention
of Money Laundering Act, 2002 arising out
of
ECIR/09/PMLA/LZO/2013
pending
before the learned Special Court (PMLA),
Lucknow, shall remain stayed and the
petitioner may not be compelled to appear
before the court concerned to participate in
the
aforesaid
criminal
proceedings.
11 All. Varun Tiwari Vs. State of U.P.
423
----------
(2021)11ILR A423
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.11.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

U/S 482/378/407 . No. 4064 of 2021

Varun Tiwari ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Arun Sinha, Ram Chandra Singh, Umang Agarwal

Counsel for the Opposite Party:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure,1973 - Section 167 (2) - Application
for default bail rejected-despite expiry of 90
days
and
chargesheet
not
submittedchargesheet was submited on the same day but
subsequent to filing of the Application u/s 167
(2) of the Cr.P.C.-right of the Applicant accrued
immediately after filing such application -since
chargesheet not filed in time-impugned order
quashed-learned trial Court directed to release
the Applicant on bail.

Held, In view of the above, I find that the order
passed by the learned trial court dated 7.6.2021 is
patently illegal and unwarranted inasmuch as the
appropriate order in an application u/s 167(2) Cr.P.C.
must have been disposed of promptly and such
application should have not been treated as if ti is a
regular bail application filed by the applicant. Had it
been a regular bail application, such application
should have been presented before the learned
Sessions Court then it should be heard by the trial
court which is special court in the present case but so
far as the issue of default bail is concerned, it should
be decided by the learned trial court inasmuch as the
charge-sheet is presented by the prosecution before
the trial court. Further, the fact as to whether the
mandatory period of filing charge-sheet as per section
167(1) has expired or not can only be seen by the
learned trial court and if after expiry of such
mandatory period and till the filing of an appropriate
application u/s 167(2) Cr.P.C. the charge-sheet has
not been filed, even the learned trial court should not
extend the remaining period and if any request on
behalf of accusedapplicant is made by his counsel
even orally to the extent that he is ready to submit
sureties / bail bonds as per satisfaction of the court
seeking default bail, the learned trial court may not
refuse bail to the accused as the right of default bail
emanates from Article 21 of the Constitution of India
which guarantees right to life and personal liberty.
(para 14) (E-9)

List of Cases cited:

1. Sanjay Dutta Vs St. reported in (1994) 5 SCC 410

2. Uday Mohanlal Acharya Vs St. of Mah. (2001) 5
SCC 453

3. Bikramjit Singh Vs St. of Punj. (2020) Supreme
Court Cases 616

4. M. Ravindran Vs The Intelligence Officer,
Directorate of Revenue Intelligence passed in Criminal
Appeal No. 699 of 2020 arising out of S.l.P. (Criminal)
No. 2333 of 2020 decided on 26.10.2020

(Delivered by Hon'ble Rajesh Singh Chauhan, J.)

1. Heard Sri Arun Sinha, learned counsel
for the applicant and Sri Anurag Verma, learned
AGA-I for the State.

2. The precise question for consideration in
this petition is as to whether the accused has an
indefeasible right to 'compulsive bail' i.e.
'default bail' under proviso to section 167(2)
Cr.P.C. on the expiry of the period of 90 days,
(or 60 days as the case may be), if the chargesheet has not been filed within aforesaid
stipulated time.

3. So as to answer this question some facts
in brief of the case are required to be considered.

4. The present applicant is an accused in
Sessions Trial No. 669/2021, Crime No.
23/2021, u/s 342, 376D, 372, 506 IPC, & section