# Hariom Sharma v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 41
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-05
- **Case number:** Criminal Misc. Writ Petition No. 4898 of 2021
- **Bench:** Pritinker Diwaker, Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hariom-sharma-v-state-of-u-p-ors-47592
- **Pages:** 12

## Headnote

Law
-
Constitution
of
India,1950-Article 226 & Indian Penal
Code,1860-Sections 477-A, 409, 120-B &
420-quashing of FIR-On the Complaint of
the
informant,
the
impugned

FIR
registered against six named accused
persons including the petitioner-on the
advice of petitioner and co-accused who is
said to be accountant, the work of
purchase of wheat was being carried out
from Anuj Trader-On the raid, illegal
government bags of 200 quintal wheat
and stencils of the three centres have
been recovered from Anuj Trader-there
appears
to
be
sufficient
ground
for
investigation of case after considering the
allegations
and
material
brought
on
record.(Para 1 to 23)

B. It is settled law that a criminal
proceeding
is
not
a
proceeding
for
vindication of a private grievance but it is
a proceeding initiated for the purpose of
punishment to the offender in the interest
of society. It is for maintaining stability
and orderliness in the society that certain
acts are constituted offences and the right
is given to any citizen to set the
machinery of the criminal law in motion
for the purpose of bringing the offender to
book. Punishment of the offender in the
interest of society being one of the objects
behind statute enacted for larger goods of
society, the right to initiate proceedings
cannot be whittled down, circumscribed of
lettered by putting it into a strait jacket
formula of locus standi.(Para 18 ,19)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,373 of 41,148. This is a partial read: ask again with offset=39373 for what follows._

9 All. Hariom Sharma Vs. State of U.P. & Ors.
41
(2021)09ILR A41
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2021

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Misc. Writ Petition No. 4898 of 2021

Hariom Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Uttar Kumar Goswami

Counsel for the Respondents:
A.G.A.

A.
Criminal
Law
-
Constitution
of
India,1950-Article 226 & Indian Penal
Code,1860-Sections 477-A, 409, 120-B &
420-quashing of FIR-On the Complaint of
the
informant,
the
impugned

FIR
registered against six named accused
persons including the petitioner-on the
advice of petitioner and co-accused who is
said to be accountant, the work of
purchase of wheat was being carried out
from Anuj Trader-On the raid, illegal
government bags of 200 quintal wheat
and stencils of the three centres have
been recovered from Anuj Trader-there
appears
to
be
sufficient
ground
for
investigation of case after considering the
allegations
and
material
brought
on
record.(Para 1 to 23)

B. It is settled law that a criminal
proceeding
is
not
a
proceeding
for
vindication of a private grievance but it is
a proceeding initiated for the purpose of
punishment to the offender in the interest
of society. It is for maintaining stability
and orderliness in the society that certain
acts are constituted offences and the right
is given to any citizen to set the
machinery of the criminal law in motion
for the purpose of bringing the offender to
book. Punishment of the offender in the
interest of society being one of the objects
behind statute enacted for larger goods of
society, the right to initiate proceedings
cannot be whittled down, circumscribed of
lettered by putting it into a strait jacket
formula of locus standi.(Para 18 ,19)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. St. of Telangana Vs Habib Abdullah Jeelani &
ors. (2017) 2 SCC 779

2. Neeharika Infrastructure Pvt. Ltd. Vs. St. of
Mah.(2021) SCC OnLine SC 315

3. Sheo Nandan Paswan Vs St. of Bih. & ors.
(1987) AIR SC 877

4. Subramanian Swamy Vs Manmohan Singh &
anr.(2012) 3 SCC 64

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. This writ petition has been filed by
the petitioner seeking quashment of first
information report dated 24th May, 2021 in
respect of Crime No. 0036 of 2021, under
Sections 185, 477-A, 409, 120-B and 420
of I.P.C. Police Station-Kakavan, DistrictKanpur Nagar.

2. Heard Mr. Uttar Kumar Goswami,
learned counsel for the petitioner and Mr.
J.K. Upadhyay, learned A.G.A. for the
State-respondents.

3. The first information report has been
lodged on 24th May, 2021 at 18:03 hrs by S.N.
Khare against six named accused persons,
namely, Rajesh Kumar, Surendra Kumar, Sohil
Kumar, Accountant Atul Sharma, Hariom
Sharma (petitioner herein) and Anuj Traders
42 INDIAN LAW REPORTS ALLAHABAD SERIES
regarding financial irregularity and scam at
Wheat Purchase Centre, P.C.F. Farmer Service
Centres, Vishdhan, Sindhauli and Aroul. In the
first information report, it has been alleged that
in a surprise inspection carried out at the
aforesaid farmer service centres, purchasing
centre In-Charge, namely, Rajesh Kumar,
Surendra Kumar and Shahil Kumar were
present. It was informed by the concerned
Centre In-charge that concerned records,
government grants (Bardana), Stencil Machine
were not available at the Centres. In their
written statements, it has been stated that at the
behest of Atul Sharma (Accountant), District
Office, P.C.F. Kanpur Nagar and Hariom
Sharma (petitioner herein), Regional Director,
P.C.F., Kanpur Division, Kanpur, the work of
purchasing of wheat is being carried out from
Rice Mill (Anuj Traders, Vishdhan). On the
basis of aforesaid statements, when the
Assistant
Commissioner
and
Assistant
Registrar raided the place of Anuj Traders,
Vishdhan,
government
bags
of
wheat
containing 200 quintal (four gath i.e. each gath
contains 50 kgs. of wheat) and stencils of
aforesaid three centres were recovered and on
the rice mill itself, purchase of wheat has been
found to be done in the names of aforesaid three
centres. On the basis of statements of concerned
Centre In-charge and the raid carried out by the
Assistant
Commissioner
and
Assistant
Registrar and the recovery made by them, the
named accused persons, including the petitioner
were found guilty of carrying out illegal
government grants and purchase of wheat at the
aforesaid three centres and the present first
information report has been lodged.

4. In support of his case, learned
counsel for the petitioner has advanced
following arguments:

1. The petitioner, who is presently
working as Regional Manager, P.C.F.,
Kanpur Division, Kanpur, is wholly innocent
and has been falsely roped in the aforesaid
case in collusion with some interested
persons and he has no concern with the
aforesaid crime.

2. The petitioner was not present at
the place when the raid was carried out and
the allegation levelled against the petitioner is
based on false and concocted story in order to
implicate him in the aforesaid case. The first
information report itself discloses that till date
no material evidence in respect of alleged
allegation, which has been levelled against
the petitioner, is available on record.

3. Prior to registering the first
information report against the petitioner,
respondent no.4 has not taken any approval
or permission from the higher authorities qua
the first information report against the
government/public servant, therefore the
same is per se illegal and arbitrary.

4. (I) Respondent no.4/informant,
who has lodged the first information report, is
much junior to the petitioner and he has no
power to make the complaint against the
petitioner like the present one.

(II) Only due to enmity and for
harassing the petitioner, so that the image of
the petitioner may be tarnished, respondent
no.4
has
lodged
the
impugned
first
information report falsely implicating him.
As such, the impugned first information
report is illegal, as the allegations levelled
against the petitioner in the said report, is
based on false and concocted story.

5. Perusal of the entire record
indicates that the petitioner has not
committed any offence under Sections 185,
477-A, 409, 120-B and 420 I.P.C., Police
Station-Kakavan,
District-Kanpur.
Petitioner has no criminal antecedents to
his credit except the present one.

On the cumulative strength of the
aforesaid arguments, learned counsel for
9 All. Hariom Sharma Vs. State of U.P. & Ors.
43
the petitioner submits that the petitioner is
innocent, the contents of the impugned
F.I.R. are concocted, tutored and vague in
nature and the charges as alleged in the
impugned F.I.R. are vague one, hence the
impugned F.I.R. is liable to be quashed.

5.(I)
Learned
Additional
Government Advocate, on the other hand,
opposed the prayer for quashing the
impugned F.I.R. and has argued that on the
complaint of the informant, S.N. Khare, who
is said to be Additional District Cooperative
Officer, Bilhore Tehsil In-charge, Bilhore,
Kanpur Nagar, the impugned F.I.R. has been
registered against six named accused persons
including the petitioner herein, in which,
there is specific allegation that on the advise
of the petitioner and co-accused Atul Sharma,
who is said to be the Accountant, District
Office P.C.F., Kanpur Nagar, the work of
purchase of wheat was being carried out from
Anuj Trader, Vishdhan. On the raid, illegal
government bags of 200 quintal wheat and
stencils of the three centres referred to above
have been recovered from Anuj Trader,
Vishdhan. Therefore, when the matter is at
the state of investigation, it cannot be said
that the petitioner is innocent and allegations
made in the impugned F.I.R. are mala fide,
false, concocted or vague and the petitioner
has been falsely implicated in the present
case. He, therefore, submits that argument
nos. 1 and 2 advanced by the learned counsel
for the petitioner cannot be examined at this
stage.

(II) So far as argument no.3
advanced on behalf of the petitioner is
concerned, in reply, learned A.G.A. for the
State submits that no prior permission or
approval from the higher authorities is
required
before
registering
the
first
information
report
against
a
public/
government servant.

(III) Elaborating the aforesaid
submission, learned A.G.A. has referred to
Section 197 of Cr.P.C., wherein it has been
provided that only at the stage of
cognizance against a public/government
servant, prior permission or approval from
the higher authorities/State, as the case
may, is required. Therefore, the said
submission of the learned counsel for the
petitioner has no legs to stand.

(IV) In regard to argument no.4
(I) advanced on behalf of the petitioner,
learned A.G.A. submits that it is settled law
that every person has a right to lodge a first
information report against a person, who in
his presence, commits a non-bailable or
cognizable
offence.
Therefore,
the
argument advanced on behalf of the
petitioner that since respondent no.4 is
junior to the petitioner, he has no power to
make any complaint against him, has no
legs to stand.

(V) To the other argument made on
behalf of the petitioner i.e., No. 4 (II) that due
to enmity and harassing the petitioner as well
as tarnishing his image, respondent no.4 has
made false complaint against the petitioner,
learned A.G.A. submits that the same cannot
be accepted, as there is nothing on record,
which establishes that there is any enmity or
any rivalry between the petitioner and
respondent no.4.

(VI) So far as argument no.5
advanced on behalf the petitioner is
concerned, learned A.G.A. submits that at the
stage of investigation, it cannot be examined
as to whether the petitioner is involved in the
commission of the alleged offence or not.

On the cumulative strength of the
aforesaid, learned A.G.A. submits that from
perusal of the impugned F.I.R. it cannot be
said that no cognizable offence is made out,
hence the writ petition is liable to be
dismissed.

6. We have examined the submissions
advanced by the learned Counsel for the
44 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner and learned AGA and also gone
through the material brought on record.

7. Normally, this Court would have
issued notice to respondent no.4, but no
purpose would be served by keeping this
petition pending, inasmuch as the learned
counsel for the petitioner and the learned
A.G.A. for the State agree that this petition
may be disposed of at this stage, without
issuing notice to respondent no.4 as well as
without calling for any further affidavits.

8. Before entering into the merits of
the case set up by the learned counsel for
the petitioner and the learned A.G.A. for
the State, it would be worthwhile to
reproduce the offences, which are alleged
to have been committed by the named
accused persons in the first information
report including the petitioner herein,
which are being quoted herein below:

"185. Illegal purchase or bid for
property offered for sale by authority of
public servant.--Whoever, at any sale of
property held by the lawful authority of a
public servant, as such, purchases or bids
for any property on account of any person,
whether himself or any other, whom he
knows to be under a legal incapacity to
purchase that property at that sale, or bids
for such property not intending to perform
the obligations under which he lays himself
by such bidding, shall be punished with
imprisonment of either description for a
term which may extend to one month, or
with fine which may extend to two hundred
rupees, or with both.

477A. Falsification of accounts.-
-Whoever, being a clerk, officer or servant,
or employed or acting in the capacity of a
clerk, officer or servant, wilfully, and with
intent to defraud, destroys, alters, mutilates
or falsifies any 2[book, electronic record,
paper, writing], valuable security or
account which belongs to or is in the
possession of his employer, or has been
received by him for or on behalf of his
employer, or wilfully, and with intent to
defraud, makes or abets the making of any
false entry in, or omits or alters or abets
the omission or alteration of any material
particular from or in, any such 2[book,
electronic record, paper, writing], valuable
security or account, shall be punished with
imprisonment of either description for a
term which may extend to seven years, or
with fine, or with both. Explanation.--It
shall be sufficient in any charge under this
section to allege a general intent to defraud
without naming any particular person
intended to be defrauded or specifying any
particular sum of money intended to be the
subject of the fraud, or any particular day
on which the offence was committed.]

409. Criminal breach of trust by
public servant, or by banker, merchant or
agent.--Whoever, being in any manner
entrusted with property, or with any
dominion over property in his capacity of a
public servant or in the way of his business
as a banker, merchant, factor, broker,
attorney or agent, commits criminal breach
of trust in respect of that property, shall be
punished with 1[imprisonment for life], or
with imprisonment of either description for
a term which may extend to ten years, and
shall also be liable to fine.

120B. Punishment of criminal
conspiracy.--

(1) Whoever is a party to a
criminal conspiracy to commit an offence
punishable with death, 2[imprisonment for
life] or rigorous imprisonment for a term of
two years or upwards, shall, where no
express provision is made in this Code for
the punishment of such a conspiracy, be
punished in the same manner as if he had
abetted such offence.
9 All. Hariom Sharma Vs. State of U.P. & Ors.
45

(2) Whoever is a party to a
criminal conspiracy other than a criminal
conspiracy to commit an offence punishable
as
aforesaid
shall
be punished
with
imprisonment of either description for a term
not exceeding six months, or with fine or with
both.

420. Cheating and dishonestly
inducing delivery of property.--Whoever
cheats and thereby dishonestly induces the
person deceived to deliver any property to
any person, or to make, alter or destroy the
whole or any part of a valuable security, or
anything which is signed or sealed, and
which is capable of being converted into a
valuable security, shall be punished with
imprisonment of either description for a term
which may extend to seven years, and shall
also be liable to fine."

9. The legal position on the issue of
quashing of FIR or criminal proceedings is
well-settled that the jurisdiction to quash a
complaint, FIR or a charge-sheet should be
exercised sparingly and only in exceptional
cases. The Courts should not ordinarily
interfere with the investigations of cognizable
offences. However, where the allegations
made in the FIR or the complaint, even if
taken at their face value and accepted in their
entirety, do not prima facie constitute any
offence or make out a case against the
accused, FIR or the charge-sheet may be
quashed in exercise of powers under Article
226 or inherent powers under Section 482 of
the Cr.P.C.

10. The Apex Court rendered in the
case of the State of Telangana v. Habib
Abdullah Jeelani and Others reported in
2017 (2) SCC 779, wherein in paragraph nos.
13 and 23, it has been observed as follows:

"13.There can be no dispute over
the proposition that inherent power in a
matter of quashment of FIR has to be
exercised sparingly and with caution and
when and only when such exercise is
justified by the test specifically laid down in
the provision itself. There is no denial of
the fact that the power under Section 482
CrPC is very wide but it needs no special
emphasis to state that conferment of wide
power requires the court to be more
cautious. It casts an onerous and more
diligent duty on the Court.

23..............What needs to be
stated here is that the States where Section
438 CrPC has not been deleted and kept on
the statute book, the High Court should be
well
advised
that
while
entertaining
petitions
under
Article
226
of
the
Constitution or Section 482 CrPC, exercise
judicial restraint. We may hasten to clarify
that the Court, if it thinks fit, regard being
had to the parameters of quashing and the
self-restraint imposed by law, has the
jurisdiction to quash the investigation and
may pass appropriate interim orders as
thought apposite in law, but it is absolutely
inconceivable and unthinkable to pass an
order of the present nature while declining
to interfere or expressing opinion that it is
not appropriate to stay the investigation.
This kind of order is really inappropriate
and unseemly. It has no sanction in law.
The Courts should oust and obstruct
unscrupulous litigants from invoking the
inherent jurisdiction of the Court on the
drop of a hat to file an application for
quashing
of
launching
an
FIR
or
investigation and then seek relief by an
interim order. It is the obligation of the
court to keep such unprincipled and
unethical litigants at bay. "

11. In the latest judgment, the Apex
Court
in
the
case
of
Neeharika
Infrastructure Private Limited vs. State
of Maharashtra reported in 2021 SCC
46 INDIAN LAW REPORTS ALLAHABAD SERIES
OnLine SC 315, considered the powers of
the High Court, while adjudicating a
petition for quashing of FIR under Article
226 of the Constitution of India and under
Section 482 of the Criminal Procedure
Code, 1973. In Neeharika Infrastructure
Private Limited (supra), the appellants
challenged an interim order issued by the
Bombay High Court, in a quashing petition
filed under Section 482 Cr.P.C. and Article
226 of the Constitution. The Bombay High
Court issued an interim order directing that
"no coercive measures shall be adopted
against the petitioners in respect of the said
FIR". While examining the correctness of
the said interim order, the Apex Court in
para-80 has held as under :

"80. In view of the above and for the
reasons stated above, our final conclusions on
the principal/core issue, whether the High
Court would be justified in passing an interim
order of stay of investigation and/or "no
coercive steps to be adopted", during the
pendency of the quashing petition under Section
482 Cr.P.C and/or under Article 226 of the
Constitution of India and in what circumstances
and whether the High Court would be justified
in passing the order of not to arrest the accused
or "no coercive steps to be adopted" during the
investigation or till the final report/chargesheet
is filed under Section 173 Cr.P.C., while
dismissing/disposing of/not entertaining/not
quashing
the
criminal
proceedings/complaint/FIR in exercise of
powers under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of India,
our final conclusions are as under:

i) Police has the statutory right and
duty under the relevant provisions of the Code
of Criminal Procedure contained in Chapter
XIV of the Code to investigate into a cognizable
offence;

ii) Courts would not thwart any
investigation into the cognizable offences;

iii) It is only in cases where no
cognizable offence or offence of any kind is
disclosed in the first information report
that the Court will not permit an
investigation to go on;

iv) The power of quashing should
be exercised sparingly with circumspection,
as it has been observed, in the ''rarest of
rare cases (not to be confused with the
formation in the context of death penalty).

v)
While
examining
an
FIR/complaint, quashing of which is
sought, the court cannot embark upon an
enquiry as to the reliability or genuineness
or otherwise of the allegations made in the
FIR/complaint;

vi) Criminal proceedings ought
not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR
should be an exception rather than an
ordinary rule;

viii) Ordinarily, the courts are
barred from usurping the jurisdiction of the
police, since the two organs of the State
operate in two specific spheres of activities
and one ought not to tread over the other
sphere;

ix) The functions of the judiciary
and the police are complementary, not
overlapping;

x) Save in exceptional cases
where non-interference would result in
miscarriage of justice, the Court and the
judicial process should not interfere at the
stage of investigation of offences;

xi) Extraordinary and inherent
powers of the Court do not confer an
arbitrary jurisdiction on the Court to act
according to its whims or caprice;

xii) The first information report is
not an encyclopaedia which must disclose
all facts and details relating to the offence
reported. Therefore, when the investigation
by the police is in progress, the court
should not go into the merits of the
9 All. Hariom Sharma Vs. State of U.P. & Ors.
47
allegations in the FIR. Police must be
permitted to complete the investigation. It
would be premature to pronounce the
conclusion based on hazy facts that the
complaint/FIR does not deserve to be
investigated or that it amounts to abuse of
process of law. After investigation, if the
investigating officer finds that there is no
substance in the application made by the
complainant, the investigating officer may
file an appropriate report/summary before
the learned Magistrate which may be
considered by the learned Magistrate in
accordance with the known procedure;

xiii) The power under Section 482
Cr.P.C. is very wide, but conferment of
wide power requires the court to be more
cautious. It casts an onerous and more
diligent duty on the court;

xiv) However, at the same time,
the court, if it thinks fit, regard being had
to the parameters of quashing and the selfrestraint imposed by law, more particularly
the parameters laid down by this Court in
the cases of R.P. Kapur (supra) and Bhajan
Lal (supra), has the jurisdiction to quash
the FIR/complaint;

xv) When a prayer for quashing
the FIR is made by the alleged accused and
the court when it exercises the power under
Section 482 Cr.P.C., only has to consider
whether the allegations in the FIR disclose
commission of a cognizable offence or not.
The court is not required to consider on
merits whether or not the merits of the
allegations make out a cognizable offence
and
the
court
has
to
permit
the
investigating agency/police to investigate
the allegations in the FIR;

xvi) The aforesaid parameters
would be applicable and/or the aforesaid
aspects are required to be considered by
the High Court while passing an interim
order in a quashing petition in exercise of
powers under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of
India. However, an interim order of stay of
investigation during the pendency of the
quashing petition can be passed with
circumspection. Such an interim order
should not require to be passed routinely,
casually and/or mechanically. Normally,
when the investigation is in progress and
the
facts
are
hazy
and
the
entire
evidence/material is not before the High
Court, the High Court should restrain itself
from passing the interim order of not to
arrest or "no coercive steps to be adopted"
and the accused should be relegated to
apply for anticipatory bail under Section
438 Cr.P.C. before the competent court.
The High Court shall not and as such is not
justified in passing the order of not to
arrest and/or "no coercive steps" either
during
the
investigation
or
till
the
investigation is completed and/or till the
final report/chargesheet is filed under
Section
173
Cr.P.C.,
while
dismissing/disposing
of
the
quashing
petition under Section 482 Cr.P.C. and/or
under Article 226 of the Constitution of
India.

xvii) xvii) Even in a case where
the High Court is prima facie of the
opinion that an exceptional case is made
out for grant of interim stay of further
investigation, after considering the broad
parameters while exercising the powers
under Section 482 Cr.P.C. and/or under
Article 226 of the Constitution of India
referred to hereinabove, the High Court
has to give brief reasons why such an
interim order is warranted and/or is
required to be passed so that it can
demonstrate the application of mind by the
Court and the higher forum can consider
what was weighed with the High Court
while passing such an interim order.

xviii) Whenever an interim order
is passed by the High Court of "no coercive
48 INDIAN LAW REPORTS ALLAHABAD SERIES
steps to be adopted" within the aforesaid
parameters, the High Court must clarify
what does it mean by "no coercive steps to
be adopted" as the term "no coercive steps
to be adopted" can be said to be too vague
and/or broad which can be misunderstood
and/or misapplied."

12. Keeping in mind the aforesaid
dictum of the Apex Court, we find that in the
instant case, it transpires from the impugned
F.I.R. that on the complaint of the informant,
S.N. Khare, who is said to be Additional
District Cooperative Officer, Bilhore Tehsil
In-charge, Bilhore, Kanpur Nagar, the
impugned F.I.R. has been registered against
six named accused persons including the
petitioner herein, in which, there is specific
allegation that on the advise of the petitioner
and co-accused Atul Sharma, who is said to
be the Accountant, District Office P.C.F.,
Kanpur Nagar, the work of purchase of wheat
was being carried out from Anuj Trader,
Vishdhan. On the raid, illegal government
bags of 200 quintal wheat and stencils of the
three centres referred to above have been
recovered from Anuj Trader, Vishdhan. The
petitioner has approached this Court by filing
the instant writ petition under Article 226 of
the Constitution of India. More so, from
perusal of the entire pleadings of the writ
petition, it transpires that there is question of
facts, which cannot be examined under
Article 226 of the Constitution of India in
writ jurisdiction.

13. It is well settled that this Court
has to eschew itself from embarking upon a
roving enquiry into the last details of the
case. It is also not advisable to adjudge
whether the case shall ultimately end in
submission of charge sheet and then
eventually in conviction or not. Only a
prima facie satisfaction of the court about
the existence of sufficient ingredients
constituting the offence is required in order
to see whether the F.I.R. requires to be
investigated or deserves quashing. The
ambit of investigation into the alleged
offence is an independent area of operation
and does not call for interference in the
same, except in rarest of rare cases.

14. Keeping in view the aforesaid law
and considering the submissions advanced
by learned counsel for the petitioner, we
are of the view that the submissions made
by the learned A.G.A. for the State, to the
argument nos. 1,2, 4 (II) and 5, advanced
on behalf of the petitioner, have substance.

15. So far as the submission made by
the learned A.G.A. to the argument no.3
advanced on behalf of the petitioner is
concerned,
it
would be
relevant
to
reproduce Section 197 Cr.P.C., which is
being quoted herein below:

"197. Prosecution of Judges and
public servants.

(1) When any person who is or
was a Judge or Magistrate or a public
servant not removable from his office save
by or with the sanction of the Government
is accused of any offence alleged to have
been committed by him while acting or
purporting to act in the discharge of his
official
duty,
no
Court
shall
take
cognizance of such offence except with
the previous sanction-

(a) in the case of a person who is
employed or, as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
the Union, of the Central Government;

(b) in the case of a person who is
employed or, as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
a State, of the State Government:
9 All. Hariom Sharma Vs. State of U.P. & Ors.
49

1. Provided that where the
alleged offence was committed by a person
referred to in clause (b) during the period
while a Proclamation issued under clause
(1) of article 356 of the Constitution was in
force in a State, clause (b) will apply as if
for the expression "State Government"
occurring therein, the expression "Central
Government" were substituted.

(2)
No
Court
shall
take
cognizance of any offence alleged to have
been committed by any member of the
Armed Forces of the Union while acting or
purporting to act in the discharge of his
official duty, except with the previous
sanction of the Central Government.

(3) The State Government may,
by notification, direct that the provisions of
sub- section (2) shall apply to such class or
category of the members of the Forces
charged with the maintenance of public
order as may be specified therein, wherever
they may be serving, and thereupon the
provisions of that sub- section will apply as
if for the expression "Central Government"
occurring therein, the expression "State
Government" were substituted.

(3A) Notwithstanding anything
contained in sub- section (3), no court
shall take cognizance of any offence,
alleged to have been committed by any
member of the Forces charged with the
maintenance of public order in a State
while acting or purporting to act in the
discharge of his official duty during the
period while a Proclamation issued under
clause (1) of article 356 of the Constitution
was in force therein, except with the
previous
sanction
of
the
Central
Government.

(3B) Notwithstanding anything to
the contrary contained in this Code or any
other law, it is hereby declared that any
sanction
accorded
by
the
State
Government or any cognizance taken by a
court upon such sanction, during the
period commencing on the 20th day of
August, 1991 and ending with the date
immediately preceding the date on which
the
Code
of
Criminal
Procedure
(Amendment) Act, 1991, receives the assent
of the President, with respect to an offence
alleged to have been committed during the
period while a Proclamation issued under
clause (1) of article 356 of the Constitution
was in force in the State, shall be invalid
and it shall be competent for the Central
Government in such matter to accord
sanction and for the court to take
cognizance thereon.

(4) The Central Government or
the State Government, as the case may be,
may determine the person by whom, the
manner in which, and the offence or
offences for which, the prosecution of such
Judge, Magistrate or public servant is to be
conducted, and may specify the Court
before which the trial is to be held."

16. From a simple reading of Section
197 Cr.P.C., it is apparently clear that no
court or magistrate shall take cognizance
against a public servant without prior
permission or sanction from his/her higher
authorities or State, as the case may.
Therefore, the submission made by the
learned A.G.A. has also substance.

17. In respect of argument no. 4 (I)
advanced on behalf of the petitioners, we
have
also
found
substance
in
the
submission made by the learned A.G.A. for
the State that every person has a right to
file a complaint against a public servant.

18. The Apex Court in the case of
Sheo Nandan Paswan Vesus State of
Bihar & Others reported in AIR 1987 SC
877, specifically in paragraph-14, has
observed as follows:
50 INDIAN LAW REPORTS ALLAHABAD SERIES

"...................... It is now settled
law that a criminal proceeding is not a
proceeding for vindication of a private
grievance but it is a proceeding initiated
for the purpose of punishment to the
offender in the interest of the society. It is
for maintaining stability and orderliness
in the society that certain acts are
constituted offences and the right is given
to any citizen to set the machinery of the
criminal law in motion for the purpose of
bringing the offender to book. It is for this
reason that in R.S. Nayak v. A.R. Antulay,
[1984] 2 SCC 500 this Court pointed out
that "punishment of the offender in the
interests of the society being one of the
objects behind penal statute enact- ed for
larger goods of society, the right to initiate
proceedings cannot be whittled down,
circumscribed of lettered by putting it into
a strait jacket formula of locus standi".
This Court observed that locus standi of the
complainant is a concept foreign to
criminal jurisprudence. Now if any citizen
can lodge a first information report or file
a complaint and set the machinery of the
criminal law in motion and his locus
standi to do so cannot be questioned, we
do not see why a citizen who finds that a
prosecution for an offence against the
society is being wrongly withdrawn,
cannot oppose such withdrawal. If he can
be a complainant or initiator of criminal
prosecution, he should equally be entitled
to oppose withdrawal of the criminal
prosecution which has already been
initiated at his instance. If the offence for
which a prosecution is being launched is an
offence against the society and not merely
an individual wrong, any member of the
society must have locus to initiate a
prosecution as also to resist withdrawal of
such prosecution, if initiated. Here in the
present case, the offences charged against
Dr. Jagannath Misra and others are
offences of corruption, criminal breach of
trust etc. and therefore any person who is
interested
in
cleanliness
of
public
administration and public morality would
be entitled to file a complaint, as held by
this Court in R.S. Nayak v.A.R. Antulay
(supra) and equally he would be entitled to
oppose the withdrawal of such prosecution
if it is already instituted. ............."

19. In Subramanian Swamy Versus
Manmohan Singh & Another reported in
(2012) 3 SCC 64, the Apex Court has held
that there is no restriction on a private
citizen to file complaint against a public
servant. The Apex Court has also held that
locus standi of a private citizen is,
therefore, not excluded. In paragraph nos.
72 and 73, the Apex Court has held as
follows:

"72. The right of private citizen
to file a complaint against a corrupt public
servant must be equated with his right to
access the Court in order to set the
criminal law in motion against a corrupt
public official. This right of access, a
Constitutional
right
should
not
be
burdened with unreasonable fetters. When
a private citizen approaches a court of law
against a corrupt public servant who is
highly placed, what is at stake is not only
a vindication of personal grievance of that
citizen but also the question of bringing
orderliness in society and maintaining
equal balance in the rule of law.

73. It was pointed out by the
Constitution Bench of this Court in
Sheonandan Paswan vs. State of Bihar and
Others, (1987) 1 SCC 288 at page 315:

"......It is now settled law that a
criminal proceeding is not a proceeding for
vindication of a private grievance but it is a
proceeding initiated for the purpose of
punishment to the offender in the interest of
9 All. Hariom Sharma Vs. State of U.P. & Ors.
51
the society. It is for maintaining stability
and orderliness in the society that certain
acts are constituted offences and the right
is given to any citizen to set the machinery
of the criminal law in motion for the
purpose of bringing the offender to book. It
is for this reason that in A.R. Antulay v.
R.S. Nayak this Court pointed out that
(SCC p. 509, para 6) "punishment of the
offender in the interest of the society being
one of the objects behind penal statutes
enacted for larger good of the society, right
to initiate proceedings cannot be whittled
down, circumscribed or fettered by putting
it into a strait jacket formula of locus
standi......" (Emphasis added)

20. In view of the aforesaid, it is
crystal clear that every person has a right to
lodge a first information report against a
person, who in his presence, commits a
non-bailable
or
cognizable
offence.
Therefore, the informant of the present
case, namely, S.N. Khare, who is also none
other than the public servant holding the
post of Additional District Cooperative
Officer, Bilhore Tehsil In-charge, Bilhore,
Kanpur Nagar, had every right to make a
complaint for lodging of first information
report
against
the
accused
persons
including the petitioner.

21. We are of the considered view
that the submissions advanced by the
learned Counsel for the petitioner call for
determination on questions of fact, which
may be adequately discerned either through
proper investigation or which may be
adjudicated upon only by the trial court and
even the submissions made on points of
law can also be more appropriately gone
into only by the trial Court in case a charge
sheet is submitted in this case. A perusal of
the record makes out a prima facie offence
at this stage and there appears to be
sufficient ground for investigation of the
case.

22. In view of the aforesaid,
considering the allegations made in the FIR
and material brought on record, it cannot be
said that no prima facie case is made out
against the petitioner, rather there appears
to be sufficient ground for investigation of
the matter. More so, learned Counsel for
the petitioner has failed to point out any
irregularity in lodging the impugned F.I.R.
and also not placed any document(s) so as
to interfere in the instant case in the extraordinary jurisdiction under Article 226 of
the Constitution of India. Accordingly, we
do not find any justification to quash the
impugned F.I.R.

23. The petition lacks substance and
is, accordingly, dismissed.

24. It is needless to state that the
petitioner is having remedy to move an
appropriate application for anticipatory bail
before the competent Court as provided
under Section 438 of the Code of Criminal
Procedure, 1973, if so desires.

25. The learned A.G.A. is obliged to
produce a copy of this order before the
concerned police station and also before the
Senior Superintendent of Police, Kanpur
Nagar.

26. It is made clear that this Court has
observed nothing on the merits of the case
and investigation is to be carried out strictly
in accordance with law on the basis of
material so collected by the investigation
agency.

27. The party shall file a computer
generated copy of this order downloaded
52 INDIAN LAW REPORTS ALLAHABAD SERIES
from the official website of High Court
Allahabad, self attested by the petitioner
alongwith a self attested identity proof of
the said person (preferably Aadhar Card)
mentioning the mobile number to which the
said Aadhar Card is linked.

28. The concerned Court/Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.
----------
(2021)09ILR A52
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2021

BEFORE

THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Misc. Writ Petition No. 6539 of 2020

Rama Shankar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Dheeraj Kumar Dwivedi, Sri K.K.
Tripathi

Counsel for the Respondents:
G.A.

A.