# Vinay Pathak v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 973
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-15
- **Case number:** Crl. Misc. Writ Petition No. 8079 of 2022
- **Bench:** Rajesh Singh Chauhan, Vivek Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-pathak-v-state-of-u-p-ors-47943
- **Pages:** 16

## Headnote

(A) Criminal Law - The Prevention of
Corruption Act, 1988 - Sections 7 -
Offence relating to public servant being
bribed, Section 17-A - Enquiry or Inquiry
or investigation of offences relatable to
recommendations
made
or
decision
taken by public servant in discharge of
official functions or duties, Indian Penal
Code, 1860 - Section 342, 386, 409, 420,
467, 468, 471, 120-B, 504, 506 - if
registration of FIR is mandatory, arrest
of
the
accused
immediately
after
registration
of
FIR
is
not
at
all
mandatory
-
offences
under
the
Prevention of Corruption Act, 1988 as
well as charge of criminal conspiracy,
cannot be said to constitute "acts in
discharge of official duty."(Para -23, 36)

Allegations of the FIR - material/evidences
gathered during investigation - prima facie,
reveal cognizable offences - allegation regarding
extortion of money - petitioner not having any
prior criminal history - sections added after
collecting
relevant
material/evidences
-
investigation
still
in
progress.
(Para
-
3,30,32,36)

HELD:-No interference in light of dictum of the
Apex Court in re; M/s Neeharika Infrastructure
Pvt. Ltd., which states that a mere perusal of
the FIR allegations and evidence collected
during the investigation could reveal the
commission of cognizable offenses. Court's
observations should not be taken negatively or
as protection for the petitioner. Petitioner can
file legal recourse under Section 438 Cr.P.C. or
other applicable laws before the court. (Para -
38,40)

Writ Petition dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,841 of 55,412. This is a partial read: ask again with offset=39841 for what follows._

11 All. Vinay Pathak Vs. State of U.P. & Ors.
973
----------
(2022) 11 ILRA 973
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.11.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.
THE HON'BLE VIVEK KUMAR SINGH, J.

Crl. Misc. Writ Petition No. 8079 of 2022

Vinay Pathak ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Lalta Prasad Misra, Nadeem Murtaza, Shubham
Tripathi

Counsel for the Respondents:
G.A.

(A) Criminal Law - The Prevention of
Corruption Act, 1988 - Sections 7 -
Offence relating to public servant being
bribed, Section 17-A - Enquiry or Inquiry
or investigation of offences relatable to
recommendations
made
or
decision
taken by public servant in discharge of
official functions or duties, Indian Penal
Code, 1860 - Section 342, 386, 409, 420,
467, 468, 471, 120-B, 504, 506 - if
registration of FIR is mandatory, arrest
of
the
accused
immediately
after
registration
of
FIR
is
not
at
all
mandatory
-
offences
under
the
Prevention of Corruption Act, 1988 as
well as charge of criminal conspiracy,
cannot be said to constitute "acts in
discharge of official duty."(Para -23, 36)

Allegations of the FIR - material/evidences
gathered during investigation - prima facie,
reveal cognizable offences - allegation regarding
extortion of money - petitioner not having any
prior criminal history - sections added after
collecting
relevant
material/evidences
-
investigation
still
in
progress.
(Para
-
3,30,32,36)

HELD:-No interference in light of dictum of the
Apex Court in re; M/s Neeharika Infrastructure
Pvt. Ltd., which states that a mere perusal of
the FIR allegations and evidence collected
during the investigation could reveal the
commission of cognizable offenses. Court's
observations should not be taken negatively or
as protection for the petitioner. Petitioner can
file legal recourse under Section 438 Cr.P.C. or
other applicable laws before the court. (Para -
38,40)

Writ Petition dismissed. (E-7)

List of Cases cited:-

1. Arnesh Kumar Vs St. of Bihar, (2014) 8 SCC
273

2. Yashwant Sinha & ors. Vs C.B.I. through its
Director & anr., (2020) 2 SCC 338

3. M/s Neeharika Infrastructure Pvt. Ltd. Vs St.
of Maha. & ors., AIR 2021 Supreme Court 1918

4. Shankara Bhat & ors. Vs St. of Kerala &
Ors., MANU/KE/2227/2021

5. Satender Kumar Antil Vs CBI & ors., Special
Leave to Appeal (Criminal) No.5191 of 2021

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

1. Heard Dr. L.P. Misra, assisted by
Sri Nadeem Murtaza, learned counsel for
the petitioner, Sri Jaideep Narain Mathur,
learned Senior Advocate, assisted by Sri
S.N. Tilhari, learned counsel for the State
and
Sri
I.B.
Singh,
learned
Senior
Advocate, assisted by Ms. Ashmita Singh,
learned counsel for the complainant/
opposite party no.5.

2. By means of this petition, the
petitioner has prayed following main
reliefs:-
974 INDIAN LAW REPORTS ALLAHABAD SERIES

"(i) to issue a writ, order, or direction
in the nature of Certiorari quashing the
impugned
first
information
report,
registered
against
the
Petitioner
by
Respondent no. 5, as FIR/ Case Crime
No.0310/2022, under section 342, 386, 504
and 506 IPC, and 7 of Prevention of
Corruption Act, 1988 at Police Station-
Indira
Nagar,
District-
Lucknow
on
29.10.2022, contained in Annexure no. 1 to
the writ petition;

(ii) to issue a writ, order, or direction
in the nature of Mandamus, commanding
the Respondents not to proceed, prosecute,
or arrest the Petitioner on the basis of the
impugned FIR registered against the
Petitioner by Respondent no.5 as FIR/ Case
Crime No.0310/2022, under section 342,
386, 504 and 506 IPC, and 7 of Prevention
of Corruption Act, 1988 at Police Station-
Indira
Nagar,
District-
Lucknow
on
29.10.2022, contained in Annexure no.1 to
the writ petition; in the alternative at least
without complying with the mandatory
statutory provision as contained under
Section
17-A
of
the
Prevention
of
Corruption Act or till the submission of
charge-sheet, whichever is later"

3. The main contention to assail the
impugned FIR are two fold. Firstly, no
specific
allegation
against
the
present
petitioner has been levelled to constitute,
prima facie, offence under Section 386 IPC.
Even otherwise, no offence as alleged in the
FIR is, prima facie, made out against the
petitioner.
If
the
allegation
regarding
extortion of money is taken on its face value,
as per the allegation of the FIR, in that case
too, at the best offence under Section 384 IPC
may be attracted, however, the petitioner is
denying the aforesaid allegation, but in that
case, the punishment under those sections
would be below seven years and the
investigation may be conducted as per the
directions and guidelines of the Apex Court
in re; Arnesh Kumar v. State of Bihar,
(2014) 8 SCC 273, by giving prior notice
under Section 41-A Cr.P.C. Secondly, no FIR
against the present petitioner can be lodged in
view of the bar of Section 17-A of the
Prevention
of
Corruption
Act,
1988
(hereinafter referred to as "P.C. Act").

4. Dr. Misra has further submitted that
since the FIR has been lodged under Section
7 of P.C. Act besides other sections of IPC,
therefore, compliance of Section 17-A of P.C.
Act would be mandatory. Sections 7 & 17-A
of P.C. Act are being reproduced herein
below:-

"[7. Offence relating to public servant
being bribed.-- Any public servant who,--

(a) obtains or accepts or attempts to
obtain from any person, an undue advantage,
with the intention to perform or cause
performance of public duty improperly or
dishonestly
or
to
forbear
or
cause
forbearance to perform such duty either by
himself or by another public servant; or

(b) obtains or accepts or attempts to
obtain, an undue advantage from any person
as a reward for the improper or dishonest
performance of a public duty or for
forbearing to perform such duty either by
himself or another public servant; or

(c) performs or induces another public
servant to perform improperly or dishonestly
a public duty or to forbear performance of
such
duty
in
anticipation
of
or
in
consequence
of
accepting
an
undue
advantage from any person,

shall be punishable with imprisonment
for a term which shall not be less than three
years but which may extend to seven years
and shall also be liable to fine.

[17A.
Enquiry
or
Inquiry
or
investigation
of
offences
relatable
to
recommendations made or decision taken by
11 All. Vinay Pathak Vs. State of U.P. & Ors.
975
public servant in discharge of official
functions or duties.-- No police officer shall
conduct
any
enquiry
or
inquiry
or
investigation into any offence alleged to have
been committed by a public servant under
this Act, where the alleged offence is relatable
to any recommendation made or decision
taken by such public servant in discharge of
his official functions or duties, without the
previous approval--

(a) in the case of a person who is or was
employed, at the time when the offence was
alleged
to
have
been
committed,
in
connection with the affairs of the Union, of
that Government;

(b) in the case of a person who is or was
employed, at the time when the offence was
alleged
to
have
been
committed,
in
connection with the affairs of a State, of that
Government;

(c) in the case of any other person, of
the authority competent to remove him from
his office, at the time when the offence was
alleged to have been committed:

Provided that no such approval shall be
necessary for cases involving arrest of a
person on the spot on the charge of accepting
or attempting to accept any undue advantage
for himself or for any other person:

Provided further that the concerned
authority shall convey its decision under this
section within a period of three months,
which may, for reasons to be recorded in
writing by such authority, be extended by a
further period of one month.]"

5. Dr. Misra has submitted that
compliance of Section 17-A of P.C. Act is
mandatory. In support of his aforesaid
submission, he has placed reliance upon the
decision of the Apex Court in re; Yashwant
Sinha and Others v. Central Bureau of
Investigation through its Director and
Another, (2020) 2 SCC 338, referring
paras 117, 118 & 119, which are as under:-

"117. In terms of Section 17-A, no
police officer is permitted to conduct any
enquiry or inquiry or conduct investigation
into any offence done by a public servant
where the offence alleged is relatable to
any recommendation made or decision
taken by the public servant in discharge of
his public functions without previous
approval, inter alia, of the authority
competent to remove the public servant
from his office at the time when the offence
was alleged to have been committed. In
respect of the public servant, who is
involved in this case, it is clause (c), which
is applicable. Unless, therefore, there is
previous approval, there could be neither
inquiry or enquiry or investigation. It is in
this context apposite to notice that the
complaint, which has been filed by the
petitioners in Writ Petition (Criminal) No.
298 of 2018, moved before the first
respondent CBI, is done after Section 17-A
was inserted. The complaint is dated 4-102018. Para 5 sets out the relief which is
sought in the complaint which is to register
an FIR under various provisions. Paras 6
and 7 of the complaint are relevant in the
context of Section 17-A, which read as
follows:

"6. We are also aware that recently,
Section 17-A of the Act has been brought in
by way of an amendment to introduce the
requirement of prior permission of the
Government for investigation or inquiry
under the Prevention of Corruption Act.

7. We are also aware that this will
place you in the peculiar situation, of
having to ask the accused himself, for
permission to investigate a case against
him. We realise that your hands are tied in
this matter, but we request you to at least
take the first step, of seeking permission of
the Government under Section 17-A of the
Prevention
of
Corruption
Act
for
investigating this offence and under which,
976 INDIAN LAW REPORTS ALLAHABAD SERIES
"the concerned authority shall convey its
decision under this section within a period
of three months, which may, for reasons to
be recorded in writing by such authority, be
extended by a further period of one
month"."

 (emphasis supplied)

118. Therefore, the petitioners have
filed the complaint fully knowing that
Section 17-A constituted a bar to any
inquiry or enquiry or investigation unless
there was previous approval. In fact, a
request is made to at least take the first step
of seeking permission under Section 17-A
of the 2018 Act. Writ Petition (Criminal)
No. 298 of 2018 was filed on 24-10-2018
and the complaint is based on nonregistration of the FIR. There is no
challenge to Section 17-A. Under the law,
as it stood, both on the date of filing the
petition and even as of today, Section 17-A
continues to be on the statute book and it
constitutes a bar to any inquiry or enquiry
or
investigation.
The
petitioners
themselves, in the complaint, request to
seek approval in terms of Section 17-A but
when it comes to the relief sought in the
writ petition, there was no relief claimed in
this behalf.

119. Even proceeding on the basis that
on petitioners' complaint, an FIR must be
registered as it purports to disclose
cognizable offences and the Court must so
direct, will it not be a futile exercise having
regard to Section 17-A. I am, therefore, of
the view that though otherwise the
petitioners in Writ Petition (Criminal) No.
298 of 2018 may have made out a case,
having regard to the law actually laid down
in Lalita Kumari [Lalita Kumari v. State of
U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri)
524] , and more importantly, Section 17-A
of the Prevention of Corruption Act, in a
review petition, the petitioners cannot
succeed. However, it is my view that the
judgment sought to be reviewed, would not
stand in the way of the first respondent in
Writ Petition (Criminal) No. 298 of 2018
from taking action on Ext. P-1, complaint
in accordance with law and subject to first
respondent obtaining previous approval
under Section 17-A of the Prevention of
Corruption Act."

6. Dr. Misra has further submitted that
unless and until the previous approval from
competent authority is received to make
investigation against the present petitioner
in view of Section 17-A of P.C. Act, the
police authorities may be restrained to
conduct investigation against the petitioner
pursuant to the impugned FIR and the
operation and implementation of the
impugned FIR may be stayed so far as the
present petitioner is concerned.

7. Dr. L.P. Misra has also submitted
that for the alleged incident of the month of
February, 2022, thereafter of the month of
April, 2022, the FIR has been lodged on
29.10.2022. In the said FIR, no specific
date of incident has been indicated for the
allegation
relating
to
the
month
of
February, 2022. Further, the allegations so
levelled in the FIR are highly improbable
inasmuch as when the complainant was
allegedly instructed to deposit a sum of
Rs.63 lakh in one International Business
Firm account at Alwar, Rajasthan, as to
why he had deposited a sum of more than
Rs.74 lakh approx.

8. Dr. Misra has also vehemently
submitted that during investigation the
investigating agency has added Sections
409, 420, 467, 468, 471 & 120-B of IPC,
besides earlier Sections 342, 386, 504, 506
IPC and Section 7 of the P.C. Act to subvert
the procedure established by the law,
however, ingredients of all aforesaid
11 All. Vinay Pathak Vs. State of U.P. & Ors.
977
sections do not attract in the present F.I.R,
therefore, the impugned F.I.R. may be
quashed both on merits as well as the same
is violative of Section 17-A of the P.C. Act.

9. Sri I.B. Singh, learned Senior
Advocate, appearing for opposite party
no.5 has raised an objection regarding
maintainability and scope of the writ
petition
under
Article
226
of
the
Constitution of India referring the decision
of the Apex Court in re; M/s Neeharika
Infrastructure Pvt. Ltd. vs. State of
Maharashtra and Others, AIR 2021
Supreme Court 1918. Sri I.B. has referred
paras 7.3, 15 & 16 of the aforesaid
judgement, which are being reproduced
herein-below:-

"7.3. Then comes the celebrated
decision of this Court in the case of State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC
335. In the said decision, this Court
considered in detail the scope of the High
Court powers under Section 482 Cr.P.C.
and/or Article 226 of the Constitution of
India to quash the FIR and referred to
several judicial precedents and held that
the High Court should not embark upon an
inquiry into the merits and demerits of the
allegations and quash the proceedings
without allowing the investigating agency
to complete its task. At the same time, this
Court identified the following cases in
which FIR/complaint can be quashed:

"102.(1) Where the allegations made
in the first information report or the
complaint, even if they are 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.

(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not disclose
a
cognizable
offence,
justifying
an
investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of the Code.

(3)
Where
the
uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where the allegations in the FIR
do not constitute a cognizable offence but
constitute only a non-cognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.

(5) Where the allegations made in the
FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.

(6) Where there is an express legal bar
engrafted in any of the provisions of the
Code or the Act concerned (under which a
criminal proceeding is instituted) to the
institution
and
continuance
of
the
proceedings and/or where there is a
specific provision in the Code or the Act
concerned, providing efficacious redress
for the grievance of the aggrieved party.

(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where
the
proceeding
is
maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."

"15. As observed hereinabove, there
may be some cases where the initiation of
criminal proceedings may be an abuse of
process of law. In such cases, and only in
exceptional cases and where it is found that
non
interference
would
result
into
978 INDIAN LAW REPORTS ALLAHABAD SERIES
miscarriage of justice, the High Court, in
exercise of its inherent powers under
Section 482 Cr.P.C. and/or Article 226 of
the Constitution of India, may quash the
FIR/complaint/criminal proceedings and
even may stay the further investigation.
However, the High Court should be slow in
interfering the criminal proceedings at the
initial stage, i.e., quashing petition filed
immediately
after
lodging
the
FIR/complaint and no sufficient time is
given to the police to investigate into the
allegations of the FIR/complaint, which is
the statutory right/duty of the police under
the provisions of the Code of Criminal
Procedure....

16. ...

... Therefore, in case, the accused named
in the FIR/complaint apprehends his arrest,
he has a remedy to apply for anticipatory bail
under Section 438 Cr.P.C. and on the
conditions of grant of anticipatory bail under
Section 438 Cr.P.C being satisfied, he may be
released on anticipatory bail by the
competent court. Therefore, it cannot be said
that the accused is remediless. It cannot be
disputed that the anticipatory bail under
Section 438 Cr.P.C. can be granted on the
conditions prescribed under Section 438
Cr.P.C. are satisfied. At the same time, it is to
be noted that arrest is not a must whenever
an FIR of a cognizable offence is lodged. Still
in case a person is apprehending his arrest in
connection with an FIR disclosing cognizable
offence, as observed hereinabove, he has a
remedy to apply for anticipatory bail under
Section 438 Cr.P.C. As observed by this Court
in the case of Hema Mishra v. State of Uttar
Pradesh, (2014) 4 SCC 453, though the High
Courts have very wide powers under Article
226, the powers under Article 226 of the
Constitution of India are to be exercised to
prevent miscarriage of justice and to prevent
abuse of process of law by the authorities
indiscriminately making pre-arrest of the
accused persons. It is further observed that in
entertaining such a petition under Article
226, the High Court is supposed to balance
the two interests. On the one hand, the Court
is to ensure that such a power under Article
226 is not to be exercised liberally so as to
convert
it
into
Section
438
Cr.P.C.
proceedings. It is further observed that on the
other hand whenever the High Court finds
that in a given case if the protection against
pre-arrest is not given, it would amount to
gross miscarriage of justice and no case, at
all, is made for arrest pending trial, the High
Court would be free to grant the relief in the
nature of anticipatory bail in exercise of its
powers under Article 226 of the Constitution
of India, keeping in mind that this power has
to be exercised sparingly in those cases
where it is absolutely warranted and justified.
However, such a blanket interim order of not
to arrest or "no coercive steps" cannot be
passed mechanically and in a routine
manner."

10. On the basis of aforesaid
observation of the Hon'ble Apex Court in re;
M/s Neeharika Infrastructure Pvt. Ltd.
(supra), Sri I.B. Singh has submitted that the
allegations so levelled against the petitioner
in the FIR disclose commission of cognizable
offence, therefore, the FIR in question may
not be quashed. Since the FIR may not be
quashed, therefore, no interim protection can
be granted to the petitioner. Further, there is a
statutory prescription under Section 438
Cr.P.C. to file anticipatory bail application,
therefore, extra-ordinary jurisdiction of this
Court under Article 226 of the Constitution of
India may not be invoked.

11. Replying the aforesaid contention
of Sri I.B. Singh, learned Senior Advocate,
Dr. Misra has submitted that since the
impugned FIR is illegal as the same could
have not been lodged in view of the
11 All. Vinay Pathak Vs. State of U.P. & Ors.
979
specific bar of Section 17-A of the P.C. Act,
therefore, the impugned FIR is liable to be
quashed. Hence, the dictum of Hon'ble
Apex
Court
in
re;
M/s
Neeharika
Infrastructure Pvt. Ltd. (supra) would not
be applicable in the present case.

12. On that, Sri I.B. Singh has placed
reliance upon the decision of Kerala High
Court in re; Shankara Bhat and Ors. Vs.
State of Kerala and Ors., reported in
MANU/KE/2227/2021,
whereby
applicability of Section 17-A of P.C. Act
has been examined and the Kerala High
Court in paras 13, 25 & 26 of the said
judgment has observed as under:-

"13. In the back ground of the law laid
down in that context, the contention,
whether prior approval as contemplated
under section 17A introduced by 2018
Amendment to the Prevention of Corruption
Act is required in respect of every act which
form subject matter of prosecution has to
be considered. In this context, it is essential
to refer to the exact words Crl.M.C
Nos.7542/2018 & others 17 employed by
the statute which reads as follows;

"S. 17A No police officer shall conduct
any enquiry or inquiry or investigation into
any offence alleged to have been committed
by a public servant under this Act, where
the alleged offence is relatable to any
recommendation made or decision taken by
such public servant in discharge of his
official functions or duties without previous
approval.".

Under
section
17A,
which
was
inserted by Act 16 of 2018, and which came
into force with effect from 26/7/2018, the
previous
approval
by
the
concerned
authorities
is
essential.
The
crucial
question that arises for consideration in
these proceedings is whether previous
approval from the competent authority need
to be obtained for every enquiry, inquiry or
investigation, into every offence committed
by the public servant. The crux of the issue
is whether the above provision is an
omnibus, all pervasive pre requisite for
every enquiry or inquiry or investigation
into every act done by the public servant in
discharge of his official functions.

"25. The reasonable conclusion that
can be arrived at regarding the scope of
section 17A is that prior approval under
section 17A for conducting any enquiry,
inquiry or investigation is required only
when the offence alleged is relatable to a
decision taken or recommendation made by
the public authority and it involves a
debatable
or
suspicious
or
doubtful
recommendation made or decision taken by
the authority. Acts, which are ex facie
criminal or constitute an offence do not
require approval under section 17A of
P.C.Act.This legal proposition, seems to be
clear from the statute and is in consonance
with the spirit of the Prevention of
Corruption Act and also in consonance
with the legal principles laid down in
relation to section 197 Cr.P.C.
26. Applying the above legal principles, I
am of the firm opinion that in the cases at
hand,
which
involve
allegation
of
falsification of accounts, breach of trust
and misappropriation of funds or acts
which are exfacie criminal, no prior
approval under section 17A of Prevention
of Corruption Act is required. Hence, all
the Crl.M.Cs. are without any merit and are
liable to be dismissed. However, it is made
clear that except this issue, all other issues
touching on the merit, are left open to be
raised and considered at the appropriate
stage. In the result, all the Crl.M.Cs stand
dismissed."

13. The aforesaid judgment has been
challenged before the Apex Court by filing
980 INDIAN LAW REPORTS ALLAHABAD SERIES
Petition(s) for Special Leave to appeal
(Crl.) No(s).9341/2021, Manoj. K.M vs.
State of Kerala & Anr. and the said Special
Leave to Appeal was dismissed by the Apex
Court vide order dated 10.12.2021 by the
following order:-

"Learned counsel for the petitioner
states that Section 13(1) of the Prevention
of Corruption Act, 1988 was substituted
vide Act 16 of 2018 with effect from
26.7.2018 and that clause (d) to Section
13(1) was not in the statute when the FIR in
the instant case was registered.

The impugned order has primarily
examined the purport and the legal effect of
Section
17A
of
the
Prevention
of
Corruption Act, 1988. Keeping in view the
factual background of this case, we are not
inclined to interfere with the impugned
order, but leave it open to the petitioner to
raise the aforesaid contentions and issues
before the Investigating officer/Court.

Pending application(s), if any, shall
stand disposed of."

14. Therefore, on the basis of
aforesaid judgment, Sri I.B. Singh has
submitted that the argument of Dr. Misra
regarding 17-A of the P.C. Act Act may not
be applicable in the present case.

15. Sri Jaideep Narain Mathur, learned
Senior Advocate, appearing on behalf of the
State-respondents has submitted that bare
perusal of the allegations of the FIR clearly
reveals that the present petitioner has
committed offence under Sections 342, 386,
504 & 506 IPC as well as Section 7 of the
P.C. Act. Sri Mathur has also drawn attention
of this Court towards para 15 of the counter
affidavit of the State wherein it has been
categorically indicated that on the basis of
evidence collected so far, offence under
Sections 409, 420, 467, 468, 471 & 120-B of
IPC has been added and at present,
investigation is under progress for the
offences under Sections 342, 386, 504, 506,
409, 420, 467, 468, 471, 120-B of IPC and
Section 7 of the Prevention of Corruption
Act.

16. Sri Mathur has further submitted
that the instant FIR is consisting three
incidents. First incident is relating to the
month of February, 2022 when the present
petitioner compelled the informant to provide
15% commission for the payments of work
done by his Company, thereby providing the
mobile number of the co-accused Ajay
Mishra. The informant under compelling
circumstances paid 15% commission to the
petitioner through co-accused Ajay Mishra.
Second incident is relating to the month of
April, 2022 when the informant has been
forced to pay 15% commission of his
remaining payment and he paid such
commission through cash and through ebanking in the account of one International
Business Firm at Alwar, Rajasthan. Third
incident is dated 01.09.2022 when the
complainant/ informant paid commission to
the tune of Rs.15,55,000/- to the petitioner
through co-accused Ajay Mishra regarding
his another payment for the work done by his
Company. The informant has indicated not
only the dates of such payments but also
indicated
the
amount
which
is
Rs.1,41,00,000/- in all the aforesaid incidents.
Sri Mathur has also submitted that when
advance commission was demanded from the
informant and he could not pay the same, the
work assigned to his Company has been
stopped by the petitioner and given to the
Company of co-accused Ajay Mishra, as has
been clearly indicated in the FIR.

17. Sri Mathur has apprised the Court
that looking to the gravity and seriousness
of the allegations, the investigation has
11 All. Vinay Pathak Vs. State of U.P. & Ors.
981
been handed over to the Special Task
Force, U.P. Some senior officers/officials of
Special Task Force are present in the Court
to assist Sri Mathur so that proper
informations could be provided to the
Court. On the basis of instructions so
received from those officers, Sri Mathur
has apprised the Court that during the
period which has been referred in the FIR,
the petitioner has called the co-accused so
many times and co-accused has also called
the petitioner couple of times. He has also
apprised that the informant/ complainant
was having no business relations of any
kind whatsoever with the Company in the
name of International Business Firm,
Alwar, Rajasthan and transaction so made
with
such
Firm
by
the
informant/
complainant on 29.04.2022 was the single
transaction
whereas
co-accused
Ajay
Mishra is having business relation with
such Firm at Alwar, Rajasthan and there are
couple of transactions of co-accused Ajay
Mishra with such Firm. On the basis of
aforesaid submission, Sri Mathur has
submitted that this may not be a case that
the informant/complainant is having any
business relation with the Company at
Alwar, Rajasthan but he deposited a sum of
Rs.74 lakh approx, to be more precise
Rs.51,62,500/-,
Rs.11,80,000/-
&
Rs.10,98,875/- through RTGS at the behest
of the petitioner and co-accused Ajay
Mishra. Therefore, as per Sri Mathur, some
more sections have been added by the
investigating agency against the accused
persons.

18. So far as contention of the learned
counsel for the petitioner regarding bar to
investigate the issue in terms of Section 17-A
of P.C. Act is concerned, Sri Mathur has
submitted that Section 17-A of P.C. Act
clearly mandates that said bar would be
applicable only where the alleged offence is
relatable to any recommendation made or
decision taken by such public servant in
discharge of his official functions or duties. In
the present case, extorting money taking
undue advantage of his position from the
informant may not be considered the act
which has been done in discharge of his
official duties or function. He has further
submitted that since the petitioner is presently
serving on the post of Vice Chancellor and
has
committed
offence
taking
undue
advantage of his position, therefore, FIR
under Section 7 of P.C. Act besides other
sections of IPC has been lodged but the
alleged offence is not relatable to any
recommendation made or decision taken by
the petitioner in discharge of his official
function or duties, therefore, bar of Section
17-A of P.C. Act would not be applicable in
the present case. Even otherwise this aspect
may be looked into at the time of taking
cognizance of the offence under Section 19 of
the P.C. Act.

19. Sri Mathur has, therefore, submitted
that for getting benefit of Section 17-A of the
P.C. Act in the light of the dictum of Apex
Court in re; Yashwant Sinha (supra), the
offence in question must be relatable to any
recommendation made or decision taken by
the petitioner in discharge of his official
functions or duties but alleged offence of the
petitioner committing forgery, fraud, criminal
breach of trust, forgery of a valuable security
etc.,
extorting
money
and
criminal
intimidation etc. having criminal conspiracy
with other accused person misusing the
position as Vice Chancellor may not come
within the four corners of Section 17-A of the
P.C. Act, so he is not entitled to get benefit of
the judgment of the Apex Court in re;
Yashwant Sinha (supra).

20. Sri Mathur has also placed
reliance upon the dictum of the Apex Court
982 INDIAN LAW REPORTS ALLAHABAD SERIES
in re; M/s Neeharika Infrastructure Pvt.
Ltd. (supra) referring those paragraphs,
which have been cited by Sri I.B. Singh,
learned Senior Advocate, appearing on
behalf of the complainant/ opposite party
no.5.

21. So as to demonstrate the test as to
whether the act was done in discharge of
official duty, Sri Mathur has placed reliance
upon the dictum of Privy Council in re;
H.H.B. Gill and another v. The King, AIR
(35) 1948 Privy Council 128, referring
relevant portion of para-30 thereof, which
reads as under:-

" [30] ... A public servant can only be
said to act or to purport to act in the
discharge of his official duty, if his act is such
as to lie within the scope of his official duty.
Thus a Judge neither acts nor purport to act
as a Judge in receiving a bribe, though the
judgment which he delivers may be such an
act: not doses a Government medical officer
act or purport to act as a public servant in
picking the pocket of a patient whom he is
examining, though the examination itself may
be such as an act. The test may well be
whether the public servant, if challenged, can
reasonably claim that, what he does, he does
in virtue of his office..."

22. Sri Mathur has submitted that the
aforesaid observation of Privy Council has
been followed by the Apex Court time and
again in various judgments.

23. Sri Mathur has placed reliance of
paras 149 & 152 of Full Bench judgment of
this Court in re; Smt. Neera Yadav vs. C.B.I.
(Bharat Sangh), [(2006) 1 UPLBEC 601],
which read as under:-

"149. In the present case, three
charge-sheets
contain
offence
under
Sections 13(1)(d) and (2) of Act of 1988
read with Section 120-B, IPC and one
charge sheet is only under Section 13 (1)(d)
& (2) of the Act of 1988. The offences
under Act of 1988 as has been held by the
Hon'ble Apex Court in Harihar Prasad
(Supra), Kalicharan Mahapatra (Supra),
which still holds field, does not come within
the purview of word "in discharge of the
official duty". Thus, the offence of criminal
conspiracy under Section 120-B, IPC,
would also not be within the term "in
discharge of official duty" and, therefore,
Section 197 Cr.P.C. has no application at
all.

152. In view of the aforesaid, answers
to the aforesaid three questions are as
follows:

(I) For prosecution under Prevention
of Corruption Act, 1988, once sanction
under Section 19 of the said Act is granted,
there is no necessity for obtaining further
sanction under Section 197 of the Code of
Criminal Procedure.

(II) Where a public servant is sought
to be prosecuted under the provisions of
Prevention of Corruption Act read with
Section 120B, I.P.C., and sanction under
Section 19 of Act of 1988 has been granted,
it is not at all required to obtain sanction
under Section 197 Cr.P.C. from the State
Government or any other authority merely
because the public servant is also charged
under Section 120B, I.P.C.

(III)
The
offences
under
the
Prevention of Corruption Act, 1988 as
well as charge of criminal conspiracy,
cannot be said to constitute "acts in
discharge of official duty."

24. Sri Mathur has submitted that
even if the allegation of the petitioner is
that he has been falsely implicated so as to
tarnish his reputation and allegations so
levelled against him in the FIR do not
11 All. Vinay Pathak Vs. State of U.P. & Ors.
983
corroborate with the material available on
record, then this is a fit case to file
anticipatory bail application under Section
438 Cr.P.C. and in such circumstances,
where the petitioner has got alternative
statutory
remedy,
the
extra-ordinary
jurisdiction of this Court under Article 226
of the Constitution of India may not be
invoked. Therefore, as per Sri Mathur, the
present petition may be dismissed.

25. Sri Mathur has also submitted that
the investigating agency is well aware that
the petitioner is a reputed person serving as
Vice
Chancellor,
Chhatrapati
Shahuji
Maharaj University, Kanpur and has been
serving on such position w.e.f. 2009 till
date at various Universities, recital to this
effect has been given in para-10 of the writ
petition, therefore, there may not be any
question of his harassment, however, his
proper cooperation would be required in
the present case as the issue is so serious.

26. On that, Dr. Misra has submitted
placing reliance upon paras-81, 111 & 112
of the judgment in re; Yashwant Sinha
(supra) that before registration of an FIR,
preliminary inquiry is must in the cases
involving allegation of corruption by a
public servant. Paras- 81, 111 & 112 of the
aforesaid case are being reproduced hereinbelow:-

"81. In this case, the short point,
which this Court is called upon to consider,
is the effect of the impugned judgment not
dealing with a binding decision rendered by
a Constitution Bench which was relied
upon by the petitioners in Writ Petition
(Criminal) No. 298 of 2018 and rendered in
Lalita Kumari [Lalita Kumari v. State of
U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri)
524] . It is apposite that I set out what this
Court, speaking through the aforesaid
Constitution Bench judgment, has laid
down in para 120 : (SCC p. 61)

"Conclusion/Directions

120. xxx

120.1. xxx

120.2. xxx

120.3. xxx

120.4. xxx

120.5. The scope of preliminary
inquiry is not to verify the veracity or
otherwise of the information received but
only to ascertain whether the information
reveals any cognizable offence.

120.6. As to what type and in which
cases
preliminary
inquiry
is
to
be
conducted will depend on the facts and
circumstances of each case. The category
of cases in which preliminary inquiry may
be made are as under:

(a)
Matrimonial
disputes/family
disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal
delay/laches
in
initiating
criminal
prosecution, for example, over 3 months'
delay in reporting the matter without
satisfactorily explaining the reasons for
delay.

The aforesaid are only illustrations
and not exhaustive of all conditions which
may warrant preliminary inquiry.

120.7. xxx

120.8. xxx"

"111. In P. Sirajuddin [P. Sirajuddin v.
State of Madras, (1970) 1 SCC 595 : 1970
SCC (Cri) 240], relied upon by the
Constitution Bench in Lalita Kumari
[Lalita Kumari v. State of U.P., (2014) 2
SCC 1 : (2014) 1 SCC (Cri) 524] , what
this Court has held, and which has
984 INDIAN LAW REPORTS ALLAHABAD SERIES
apparently been relied upon by the
Constitution Bench though not expressly
referred to is the following statement
contained in para 17 : (P. Sirajuddin case
[P. Sirajuddin v. State of Madras, (1970) 1
SCC 595 : 1970 SCC (Cri) 240] , SCC p.
601)

"17. ... Before a public servant,
whatever be his status, is publicly charged
with acts of dishonesty which amount to
serious misdemeanour or misconduct of the
type alleged in this case and a first
information is lodged against him, there
must be some suitable preliminary enquiry
into the allegations by a responsible officer.
The lodging of such a report against a
person, specially one who like the appellant
occupied the top position in a department,
even if baseless, would do incalculable
harm not only to the officer in particular
but to the department he belonged to, in
general."

(emphasis supplied)

112. In Lalita Kumari [Lalita Kumari
v. State of U.P., (2014) 2 SCC 1 : (2014) 1
SCC (Cri) 524] , one of the contentions
which was pressed before the Court was
that in certain situations, preliminary
inquiry is necessary. In this regard,
attention of the Court was drawn to CBI
Crime Manual. The following paragraphs
of Lalita Kumari [Lalita Kumari v. State of
U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri)
524] may be noticed, which read as follows
: (SCC pp. 50-51, paras 89-92)

"89. Besides, the learned Senior
Counsel relied on the special procedures
prescribed under the CBI Manual to be
read into Section 154. It is true that the
concept
of
"preliminary
inquiry"
is
contained in Chapter IX of the Crime
Manual of CBI. However, this Crime
Manual is not a statute and has not been
enacted by the legislature. It is a set of
administrative orders issued for internal
guidance of the CBI officers. It cannot
supersede the Code.