# Vinayendra Nath Upadhyay and others v. State of U.P. and others

- **Citation:** (2010) 2 ILRA 881
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-04
- **Case number:** Criminal Misc. Writ Petition No. 9873 of 2010
- **Bench:** Amar Saran, S.C. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinayendra-nath-upadhyay-and-others-v-state-of-u-p-and-others-41707
- **Pages:** 15

## Headnote

Constitution of India Art. 226-Power of
writ court-single judge dealing with
embezzlement of G.P.F. Amount with
collusion
of
authorities
as
well
as
concern management of college-given
those un-desirable persons by preparing
forged record-Court expressed its great
concern-directed to lodge FIR against
those guilty persons-consequently FIR
lodged
by
competent
authority-from
allegation of FIR and other material on
record-prim-faci-cognizable
offence
disclose -no interference called farappeal dismissed.

Held Para 49

In view of the aforesaid it cannot be said
that the First Information Report and
other material on record does not
disclose any cognizable offence, and that
any ground exists either for questioning
the investigation or for staying the
arrests of any of the petitioners. We
882 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

therefore dismiss all the writ petitions.
The interim orders granted earlier are
vacated. The investigating agency is
directed to proceed expeditiously in
concluding the investigation.

Constitution
of
India
Art.
226-writ
jurisdiction-during course of hearing if
cognizable offence is committed-and direct
the investigation agency-who bound to
investigate U/S 154 Cr.P.C.

Held Para 21

A Court in any jurisdiction is no less a
citizen than a private person. If the
Court in the course of hearing a case
finds
that
a
cognizable
offence
is
committed by some persons, it can never
be barred from bringing these facts to
the notice of the investigating agency,
who in turn in view of section 154 of the
Code is bound to investigate the said
offence, not because the order has
emanated from the Court, but because a
cognizable offence is disclosed.
Case Law Discussed:
1994 (3) UPLBEC 1551; 1992(2) AWC 962;
AIR 2009 SC 984; 2008 (7) SCALE 363; 2008
(12) SCALE 252; AIR 1966 SC 81; AIR 2002 SC
3252; AIR 1984 SC 718; (2003) 11 SCC 251;
AIR 1993 SC 1082; AIR 1963 1430; (2004) 4
SCC 236; (2001) 6 SCC 181; (2004) 13 SCC
292; AIR 2009 SC 984; 1997 (34) ACC 726;
AIR 1999 SC 3596; AIR 2003 SC 2612; AIR
1955
SC
196;(1999)
3SCC
259;
(2007
Cri.L.J.170) (FB); AIR 1952 SC 12; AIR 1962
SC 1305; AIR 1964 SC 685; AIR 1966 SC
1441; AIR 1975 SC 2238

## Text

_Characters 0–39,777 of 49,262. This is a partial read: ask again with offset=39777 for what follows._

2 All] Vinayendra Nath Upadhyay and others V. State of U.P. and others
881
into account the Courts will interfere. If
the decision making body comes to its
decision on no evidence or comes to a
finding so unreasonable that a reasonable
man could not have come to it then again
the Courts will interfere.

Further if the decision making body
goes outside its power or misconstrues the
extent of its power, then too the Courts can
interfere, and if the decision making body
acts in a bad faith or with ulterior object
which it is not authorized by law, its
decision will be set aside in supervisory
jurisdiction. A decision of a public authority
will be liable to be quashed or otherwise
dealt with by appropriate order in judicial
review proceedings, where the Courts
concludes that the decision is such that no
authority properly directing itself on the
relevant law and fact acting reasonably
could have reached it."

44. Thus the decision by the
appropriate authority to grant or not to grant
a particular relief to a person is not open to
Judicial review by the High Court under
Article 226 of the Constitution of India but
the
power
of
judicial
review
is
circumscribed to scrutiny of the decision
making process only and is to be exercised
in the light of the principles laid down
above and applying the said principles to
the facts of the present case, I do not find
any irregularity or infirmity in the impugned
orders.

45. No other point is pressed or
argued before me.

46. Accordingly, the present writ
petition lacks merit and is dismissed.

No order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.08.2010

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE S.C. AGARWAL, J.

Criminal Misc. Writ Petition No. 9873 of 2010

Vinayendra
Nath
Upadhyay
and
others

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rituvendra Singh
Sri A.K. Pandey
Sri Umesh Narain Sharma
Sri V.P. Srivastava
Sri G.S.Chaturvedi

Counsel for the Respondent:
Sri A.K.Sand (A.G.A.)
Sri Vikas Sahai (A.G. A.)

Constitution of India Art. 226-Power of
writ court-single judge dealing with
embezzlement of G.P.F. Amount with
collusion
of
authorities
as
well
as
concern management of college-given
those un-desirable persons by preparing
forged record-Court expressed its great
concern-directed to lodge FIR against
those guilty persons-consequently FIR
lodged
by
competent
authority-from
allegation of FIR and other material on
record-prim-faci-cognizable
offence
disclose -no interference called farappeal dismissed.

Held Para 49

In view of the aforesaid it cannot be said
that the First Information Report and
other material on record does not
disclose any cognizable offence, and that
any ground exists either for questioning
the investigation or for staying the
arrests of any of the petitioners. We
882 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

therefore dismiss all the writ petitions.
The interim orders granted earlier are
vacated. The investigating agency is
directed to proceed expeditiously in
concluding the investigation.

Constitution
of
India
Art.
226-writ
jurisdiction-during course of hearing if
cognizable offence is committed-and direct
the investigation agency-who bound to
investigate U/S 154 Cr.P.C.

Held Para 21

A Court in any jurisdiction is no less a
citizen than a private person. If the
Court in the course of hearing a case
finds
that
a
cognizable
offence
is
committed by some persons, it can never
be barred from bringing these facts to
the notice of the investigating agency,
who in turn in view of section 154 of the
Code is bound to investigate the said
offence, not because the order has
emanated from the Court, but because a
cognizable offence is disclosed.
Case Law Discussed:
1994 (3) UPLBEC 1551; 1992(2) AWC 962;
AIR 2009 SC 984; 2008 (7) SCALE 363; 2008
(12) SCALE 252; AIR 1966 SC 81; AIR 2002 SC
3252; AIR 1984 SC 718; (2003) 11 SCC 251;
AIR 1993 SC 1082; AIR 1963 1430; (2004) 4
SCC 236; (2001) 6 SCC 181; (2004) 13 SCC
292; AIR 2009 SC 984; 1997 (34) ACC 726;
AIR 1999 SC 3596; AIR 2003 SC 2612; AIR
1955
SC
196;(1999)
3SCC
259;
(2007
Cri.L.J.170) (FB); AIR 1952 SC 12; AIR 1962
SC 1305; AIR 1964 SC 685; AIR 1966 SC
1441; AIR 1975 SC 2238

(Delivered by Hon'ble Amar Saran, J)

1. All the aforesaid connected writ
petitions have been sent to this Bench
headed by one of us (Amar Saran, J.) by
order of Hon'ble the Chief Justice dated
5.7.2010.

2. We have heard Sri Umesh Narain
Sharma, Sri V.P. Srivastava, and Sri G.S.
Chaturvedi, Senior Advocates for the
petitioners in some of the petitions, the
learned counsel for the other petitioners
Punita
Mishra,
Dinesh
Kr.
Yadav,
Shivanand Tiwari, , Amar Deep Singh
and others, Lalit Kumar Pandey, Lallan
Prasad
have
also
raised
some
submissions. Other counsel have adopted
their contentions. We have also heard Sri
A.K. Sand, and Sri Vikas Sahai, learned
Additional Government Advocates for the
State and have perused the records of the
writ petitions, and have also summoned
and seen the records in Civil Misc. Writ
Petition No. 23250 of 2010, Special
Appeal ( Defective ) No. 610 of 2010 and
in Civil Misc. Contempt Petition No.
1724 of 2004.

3. The petitions are an offshoot of
orders passed by Hon'ble Arun Tandon, J
on 13.5.2010 in Civil Misc. Writ petition
No. 23250 of 2010, wherein the learned
single Judge observed as follows:

"Shri
M.C.
Chaturvedi,
Chief
Standing Counsel is present in the Court.
He submits that the matter is in active
consideration of the State Government. It
is
stated
that
certain
disciplinary
proceedings have been initiated against
the persons responsible. He further
submits that the embezzlement of the
money from the GPF account is not in
dispute, however the quantification is to
be done.

This Court is of the firm opinion that
for the embezzlement of the public money,
criminal liability does occurs. Therefore,
First Information Report has to be lodged
against the persons guilty and they must
be brought to book.

Let necessary be done by 24.5.2010.
2 All] Vinayendra Nath Upadhyay and others V. State of U.P. and others
883

Put up as unlisted on 24.5.2010."

In an earlier order dated 5.5.2010 in
writ petition No. 23250 of 2010 Hon'ble
Arun Tandon, J. observed as follows:
"Two aspects of the matter are involved,
(a) how the 12 crores of rupees, which
have been deposited by the teachers and
employees in the hope that on retirement
they will get the money encashed from the
said General Provident Fund and survive
during old age, is to be recouped,
inasmuch as ultimately such teachers and
staffs would suffer if the money is not
restored,
and
(b)
no
fraudulent
withdrawal
from
the
Government
Treasury through the office of the District
Inspector of Schools, Ballia is prima facie
possible from the General Provident Fund
unless officers and employees working in
the aforesaid two offices collude with the
private management and the person
concerned."

4. Pursuant to the aforesaid orders of
this Court, the District Inspector of
Schools, Ballia lodged an FIR on
23.5.2010 at case crime No. 271 of 2010,
under sections 409, 467, 468, 471, 419,
420 IPC, police station Kotwali, district
Ballia. The said FIR which nominates the
then District Inspector of Schools (DIOS),
Sri Brijnath Pandey, Accounts Officer, Sri
Kamla Kant and Accounts Clerk, (the
petitioner Lallan Prasad, in Cr. Writ
Petition No. 9674 of 2010), and the
teaching and non-teaching employees in
some aided secondary institutions in
Ballia numbering 47, and which also
implicates
the
then
managers
and
principals of the said institutions, has
been challenged by the petitioners in the
bunch of petitions before us.

5. The FIR mentioned that it was
being registered pursuant to the order of
the High Court in Writ-A No. 23250 of
2010. It was mentioned in the FIR that
during the period October 2005 and April
2006 the Principals and Managers of the
non-government aided secondary and
higher secondary colleges at Ballia
entered into a criminal conspiracy with
certain teachers and non-teaching staff of
their institutions and the then District
Inspector of Schools, Accounts Officer
and the Accounts Clerk with the objective
of embezzling public money. Forged
documents were manufactured with the
aim of illegally paying salaries to teaching
and
non-teaching
employees
whose
appointments were unauthorised after
showing false dates of appointments.
Arrears were paid without authorization
from the competent authority, and funds
meant for the GPF accounts were diverted
for distribution as arrears of salary. The
details of the concerned teaching and nonteaching employees, and the illegal
payments received by each, and the role
of the aforementioned DIOS, accounts
officer and clerk, and the Principals and
Managers and some illustrations of the
modus operandi adopted at the concerned
institutions in Ballia are given in an audit
report which was conducted by an Audit
team
of
the
Education
Directorate
Allahabad, pursuant to earlier complaints,
and is annexed to the FIR. The FIR and
the audit report further show that in some
instances
the
college
records
were
dishonestly removed to hamper audit, in
other cases the teaching and non-teaching
employees
got
payments
made
in
furtherance of their conspiracy with the
aforesaid educational authorities without
even producing the relevant papers from
the College. In a case the GPF amount
standing to the credit of a regular teacher
884 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

was
unauthorizedly
withdrawn
by
collusively affixing the photograph of
another person which was verified by the
principal of the institution (Langtu Baba
Inter College, Harihankala), and the
withdrawal was approved by the principal
and the manager (the then DIOS Brajnath,
who was acting as the manager) after
forged ledgers were got prepared, which
bore the signatures of the college
principal and the then accounts officer
and the accounts clerk (petitioner Lallan
Prasad, in Cr. Misc. Writ Petition No.
9674 of 2010) at the DIOS office.

6. It was submitted by Sri V.P.
Srivastava
and
some
other
learned
counsel for the petitioners that the
teaching and non teaching employees had
been validly appointed and that there were
orders of the High Court in different writ
petitions validating their appointments or
directing either payment of salary or to
consider their representations within a
stipulated period of time. Some of these
orders have even been annexed.

7. Furthermore in Civil Misc.
Contempt Petition No. 1724 of 2004 an
order dated 12.7.05 was passed directing
payment of salaries to the petitioners in
whose cases final orders had been issued
in the writ petitions filed by them. This
Contempt was filed to ensure compliance
of an order dated 25.2.04 passed in
C.M.W.P. No. 25885 of 2003. Hence the
petitioners could not be faulted for
receiving the salaries.

8. It may be noted that the said
contempt
petition
was
eventually
dismissed by an order dated 12.12.05.

Significantly in Civil Misc. Writ
Petition No. 25885 of 2003, which was
the basis for the direction in the Civil
Contempt, the single judge was looking at
the illegal and fraudulent appointments in
the educational institutions at Ballia
where the matters had been handed over
to the CBCID for investigation. The
CBCID had even recommended lodging
of criminal cases and the salary of 329
employees had been with-held. The
Director of Education (Secondary) had
found that 104 employees had approached
the High Court and obtained orders in
writ petitions directing payments of
salaries pending completion of enquiry. It
was also noticed in the said order dated
25.2.04 that the enquiry had resulted in
favourable reports for 75 employees. But
significantly the single Judge observed:

"I have perused the enquiry report
submitted
in
respect
of
75
teachers/employees,
which
has
been
forwarded to the State Government. From
this report, I find that the individual cases
have not been considered in detail. The
interim order of this court for making the
payment
of
the
salaries
until
the
conclusion of the enquiry have been found
to
be
conclusive
to
validate
the
appointment.
In
some
case,
casual
observations have been made that the
appointments are valid on the ground that
there are sanctioned posts available in the
institution.
The
report
concerning
sanction of posts and validity of the
appointments by following proper and
due procedure have not been considered
and discussed. In the aforesaid facts and
circumstances, I find that the department
must give due expediency to the matter
and each case must be considered
individually. The enquiry officer must
record findings about each and every
appointment
separately.
Where
the
appointments are found valid immediate
2 All] Vinayendra Nath Upadhyay and others V. State of U.P. and others
885
action must be taken for restoration of
payment of the salary. The department
must not wait for the entire matter to be
considered. The decision may be taken at
the level of Director of Education. In
case, he finds that the appointment was
valid. In any case, the entire enquiry must
be concluded as expeditiously as possible
and not later than 3 months from today".

9. The issues and criteria that are to
be considered in individual cases for ad
hoc appointments against substantive or
short term vacancies, such as the
requirement to first fill up the available
vacancies by promotions, and only in the
absence of eligible persons, by direct
recruitment, the need for intimation of
vacancies to the Education Services
Commission through the DIOS, the time
period allowed to the Commission to
appoint suitable candidates, before the
management could take steps for filling
up vacancies, the need for inviting
applications for the vacancies through the
employment exchange and by publication
in two local newspapers which have a
wide circulation in the State, the essential
qualifications required for different posts,
the cases where prior or subsequent
approvals by the DIOS are needed, the
position when a regular person is selected
by the Education Services Commission in
the cases where an ad hoc employee has
been appointed, have been spelt out in
depth by the Full Bench of this Court in
Kumari Radha Raizada and others v.
Committee of Management, Vidyawati
Darbari
Girls
Inter
College
and
others,1994 (3) UPLBEC 1551, after
considering
the
statutory
provisions
contained
in
the
U.P.
Secondary
Education Services Commission and
Selection Board Act, 1981, the U.P.
Intermediate Education Act, 1921, and the
various
U.P.
Education
Services
Commission (Removal of Difficulties)
Orders.

10. In another Full Bench decision
in Gopal Dubey v. District Inspector of
Schools,
Maharajganj
and
another,
1992(2) AWC 962, interpreting the
provisions of section 9 of the U.P. High
Schools
and
Intermediate
Education
Colleges
(Payment
of
Salaries
of
Teachers and other Employees) Act 1971
it has been held that unless the post for
which the salary has been paid is
approved
by
the
State
government
(Director of Education), the payments
made
by
the
management
of
the
institution to such employees will not be
re-reimbursed by the State.

11. The individual appointments and
payments made therefore needed to be
tested on the aforesaid criteria spelt out in
the Full Bench decisions. If it was found
that the appointments did not meet the
said criteria, as they had simply been
made or continued pursuant to orders of
in the High Court in pending or disposed
of writ petitions, which gave directions to
consider
the
representations
of
the
petitioners, or to pay salaries or to show
cause etc., and where regular persons had
been appointed by the Commission, then
the ad hoc appointments made by the
managements needed to be set aside.
Steps for seeking vacation of single or
division bench High Court orders in Civil
Writs and Contempt petitions which were
in the teeth of the decision of the Full
Bench in Radha Raizada and statutory
provisions, by filing Special Appeals
before the Division bench or the Supreme
Court were required. But it appears that
these steps have deliberately not been
taken in a mala fide manner, and the
886 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

petitioners and others may have colluded
with educational authorities for obtaining
favourable orders.

12. It must be stated emphatically
that in any view of the matter, there could
be absolutely be no justification for
payment of salaries for such teachers from
the General Provident Fund, from which
as the Chief Standing Counsel admitted
before the Single Judge in Bhim Singh's
case, there had been illegal withdrawals to
the tune of Rs.12 crores. The said G.P.F.
money is held in trust, and the proper
holders of the GPF will be severely
harmed if they are unable to receive due
payments at retirement or otherwise. The
DIOS in the contempt petition could have
pleaded inability to comply with the order
of the contempt Judge, until budgetary
allocation of salaries were made by the
State government, or the management
itself could have made the necessary
payments from its own sources, if it was
so advised. Withdrawal of salaries from
funds earmarked for GPF of bona fide
employees could never be countenanced.

13. It was next submitted that the
petitioners were merely teaching and non
teaching
employees,
managers
and
Principals of the institutions concerned
and were wholly unaware of the source of
the funds or that the disputed funds were
earmarked for G.P.F. Also the payments
had been released by the DIOS, Accounts
officer and other educational authorities
to save their own skins in the contempt
petition. The payments were not made at
the instance of the petitioners. Pressure
was brought to bear on the petitioners by
the DIOS by orders dated 28/29.3.2006
and 18/20.4.2006 to submit the salary
bills.

14. In our view considering the scale
at which the withdrawals have been made
from the GPF money, it is difficult to
believe that the petitioners were only
unwary and innocent recipients of the
money, and their hands were absolutely
clean. There was no need for the DIOS
and other educational authorities to have
gone out of their way for facilitating the
dubious appointments of the petitioners,
unless they were swayed by extraneous
considerations. The single judge appears
to have rightly observed in his order dated
5.5.10 that "no fraudulent withdrawal
from the Government Treasury through
the office of the District Inspector of
Schools, Ballia is prima facie possible
from the General Provident Fund unless
officers and employees working in the
aforesaid two offices collude with the
private management and the person
concerned."

15. Specifically it was argued by Sri.
U.N. Sharma, learned Senior counsel
appearing for Vinayendra Upadhyay, that
the FIR was unauthorised as it has been
instituted on the direction of the Single
Judge in Civil Misc. Writ petition No.
23250 of 2010, whilst hearing a service
matter and the said bench had no
jurisdiction to issue a general direction for
lodging FIRs against known and unknown
persons, particularly as the petitioner in
the said writ petition Bhim Singh had
mainly sought a relief of getting the GPF
refunded from one Ashok Kumar Singh,
who was arrayed as respondent no.10 in
the said writ petition. Such a direction, if
at all, could have been issued only by a
bench hearing Public Interest Litigations
(PILs). Also no opportunity was given to
the petitioners to raise objections before
the Single Judge bench which had issued
the general direction for lodging the FIRs
2 All] Vinayendra Nath Upadhyay and others V. State of U.P. and others
887
and the said order was in violation of the
principles of natural justice, as they were
not parties in Civil Misc. Writ petition
No. 23250 of 2010. For these reasons the
Division Bench in Special Appeal (
Defective ) No. 610 of 2010, by an order
dated 30.6.2010 finally disposing of the
Special Appeal had stayed the operation
of the order of the single judge in Civil
Misc. Writ Petition No. 23250 of 2010
directing registration of the FIR so far as
it related to the case of the petitioner
Vinayendra Nath Upadhyaya.

16. It may be noted that the prayers
in the single judge writ petition No. 23250
of 2010, apart from the first prayer for a
mandamus
directing
the
concerned
authorities to recover the amount of
G.P.F. which had been misappropriated
by respondent No. 10 (Ashok Kumar
Singh) were to:

"b) issue a writ, order or direction in
the nature of mandamus directing to the
competent authorities to take appropriate
action against guilty teachers/employees;
Manager/ Principal and officials/Officers,
who are involved in said misappropriation
of funds of G.P.F in the light of audit
report dated 4.12.2006 (Annexure no.11
of the writ petition) and in the light of
order
dated
4.1.2008,
passed
by
Additional
Director
of
Education
(Annexure no.12 of the writ petition);

c) issue a writ, order or direction
which this Hon'ble Court may deem fit
and proper in the circumstances of the
case".

17. Thus the general direction for
lodging the FIRs was issued in terms of
the audit report dated 4.12.06 which
produced evidence of the diversion of
funds meant for GPF for payment of
salaries
of
employees,
whose
appointments
were
illegal
and
unauthorized,
and
false
dates
of
appointment were mentioned based on
forged documents. There were instances
of dishonest removal of service papers to
hamper audit etc.

18. The single judge further rightly
justifies
his
order
dated
13.5.2010
directing
registration
of
FIRs
for
embezzlement of public
money by
observing that Sri M.C. Chaturvedi, Chief
Standing Counsel "submits that the
embezzlement of the money from the
GPF account is not in dispute, however
the quantification is to be done."

19. In Nirmal Singh Kahlon v. State
of Punjab, AIR 2009 SC 984 the Supreme
Court saw no difficulty in a private
interest litigation being changed to a
public interest litigation, or in issuing
directions of a general nature where large
scale systematic irregularities or fraud
was noticed by the High Court. In this
regard it was observed in paragraph 32 :
"The High Court while entertaining the
writ petition formed a prima facie opinion
as regards the systematic commission of
fraud. While dismissing the writ petition
filed by the selected candidates, it
initiated a suo motu public interest
litigation. It was entitled to do so. The
nature of jurisdiction exercised by the
High Court, as is well known, in a private
interest litigation and in a public interest
litigation is different. Whereas in the
latter it is inquisitorial in nature, in the
former it is adversarial. In a public
interest litigation, the court need not
strictly follow the ordinary procedure. It
may not only appoint committees but also
issue directions upon the State from time
888 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

to time. {See Indian Bank vs. Godhara
Nagrik Co-op. Credit Society Ltd. and
Anr. [2008 (7) SCALE 363] and Raju
Ramsing Vasave v. Mahesh Deorao
Bhavpurkar and others, [2008 (12)
SCALE 252].

Further in Dwarka Nath v. Income
Tax Officer, Special Circle, D. Ward,
Kanpur, AIR 1966 SC 81 and Padma v.
Hiralal Motilal Desarda, AIR 2002 SC
3252 it has been held that in view of the
comprehensive phraseology in Article
226, which gives powers to the High
Court not only to issue specified writs, but
to issue orders and directions for "any
other purpose", an ex facie power is
conferred on the High Court to reach
injustice wherever it is found, and to
mould
its
relief
for
meeting
the
complicated requirements of a case.

20. Also it has been laid down in
A.R. Antulay v. Ram Das Sriniwas Nayak,
AIR 1984 SC 718 in paragraph 6 that the
concept of locus standi is foreign to
Indian jurisprudence, and if a cognizable
offence has been committed, anyone can
put the criminal law in motion, unless the
statute restricts the right to file the FIR to
a particular category of persons. The
relevant passage reads thus:

"It is a well recognised principle of
criminal jurisprudence that anyone can
set or put the criminal law into motion
except where the statute enacting or
creating an offence indicates to the
contrary. Locus standi of the complainant
is
a
concept
foreign
to
criminal
jurisprudence save and except that where
the statute erecting an offence provides
for the eligibility of the complainant, by
necessary
implication
the
general
principle get excluded by such statutory
provision. 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 in into a strait-jacket formula of
locus
standi
unknown
to
criminal
jurisprudence. save and except specific
statutory exception."

21. A Court in any jurisdiction is no
less a citizen than a private person. If the
Court in the course of hearing a case finds
that a cognizable offence is committed by
some persons, it can never be barred from
bringing these facts to the notice of the
investigating agency, who in turn in view
of section 154 of the Code is bound to
investigate the said offence, not because
the order has emanated from the Court,
but because a cognizable offence is
disclosed.

22. In M. Narayandas v. State of
Karnataka,(2003) 11 SCC 251 it has been
held that in view of section 154 (1) of the
Code, a duty has been cast on the
investigating
officer
to
reduce
any
"information" about the commission of a
cognizable
case
in
writing.
The
expression
'credible
information'
or
reasonable complaint has deliberately not
been used in the provision by the
legislature.

23. Therefore the investigating
officer has no option but to lodge the FIR
and to proceed with investigation if any
information about the commission of a
cognizable offence is received.

Paragraph 33 of M. Narayandas may
be usefully extracted here- "It is,
therefore, manifestly clear that if any
2 All] Vinayendra Nath Upadhyay and others V. State of U.P. and others
889
information
disclosing
a
cognizable
offence is laid before an officer in charge
of
a
police
station
satisfying
the
requirements of Section 154(1) of the
Code, the said police officer has no other
option except to enter the substance
thereof in the prescribed form, that is to
say, to register a case on the basis of such
information."

24. So far as the other criticism
against the single judge's order for having
violated principles of natural justice was
concerned, it may be noted that as on
examining the petition filed by Bhim
Singh and obtaining responses from the
Standing Counsel, the Single Judge
reached a conclusion about large scale
irregularities in appointments and illegal
diversion of GPF money, he could only
order a general investigation and lodging
of FIRs against persons who may be
involved in the crime. As the single judge
had no knowledge as to all the persons
who could be involved in the fraud, there
was no question of issuing notices to the
potential accused at that stage.

25. By the order dated 13.5.10 the
single judge had simply directed that a
"First Information has to be lodged aginst
the persons guilty and they must be
brought to book." Thereafter if the
investigating agency was prima facie
satisfied of the complicity of any person
in an offence, there was no requirement in
law of providing an opportunity of
hearing to the accused before registration
of the FIR.

26. At the stage of investigation the
accused has no locus standi or right of
prior hearing before the FIR is lodged. In
Union of India v. W.N. Chadha, AIR 1993
SC 1082, it has been clarified that an
accused has no right to challenge the
letter rogatory issued by an Indian Court
to a foreign Court for obtaining evidence
regarding the source of funds kept in the
Swiss Bank. As no deprivation of liberty
or property was involved, hence the
principle of audi alteram partem, was not
attracted.

27. The subsequent stage of
investigation by the police is governed by
the Code of Criminal Procedure (hereafter
called the Code). Chapter 12 of the Code
confers no right of prior hearing to the
accused at the stage of investigation, but
the right of hearing is only provided when
the
Sessions
Judge
or
Magistrate
considers whether to discharge or to
frame a charge against the accused under
sections 227/228 or 239/240 of the Code.
Under section 235(2) in the case of a
Sessions triable case, or section 248(2) in
a warrant case triable by a Magistrate
again the accused have a right of being
heard.

28. That the accused has no right of
hearing at the stage of investigation and
does not come into the picture till the
order taking cognizance has been passed
has also been emphasized in Chandra
Deo Singh v. Prakash Chandra Bose, AIR
1963 SC 1430 Shashi Jena & Ors. v.
Khodal Swain & Anr., (2004) 4 SCC 236
and a catena of other decisions.

29 Significantly it has been observed
in paragraph 98 in Union of India v. W.N.
Chadha:

98."If
prior
notice
and
an
opportunity of hearing are to be given to
an accused in every criminal case before
taking any action against him, such a
procedure
would
frustrate
the
890 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

proceedings, obstruct the taking of
prompt action as law demands, defeat the
ends of justice and make the provisions of
law relating to the investigation as
lifeless,
absurd
and
self-defeating.
Further, the scheme of the relevant
statutory provisions relating to the
procedure of investigation does not
attract such a course in the absence of
any statutory obligation to the contrary."

30. It also appears to us that the
order in Special Appeal (Defective) No.
610 of 2010, dated 30.6.2010 staying the
operation of the order of the single judge
in Civil Misc. Writ Petition No. 23250 of
2010 directing registration of the FIR so
far as it related to the case of the
petitioner Vinayendra Nath Upadhyaya
was passed as the division bench was
under the impression that no action had
yet been taken on the direction of the
single judge for registration of the FIR.
Thus it was observed in the order in the
Special Appeal (Defective), that : "Sri
Pandey, learned Advocate rightly points
out that against the report no stay has
been given. That appears to be rightly so.
Once there is order of this court directing
lodging of first information report and
that has been executed/ complied there
may not be possibly any occasion for any
co-ordinate
bench
to
grant
relief."
(Emphasis supplied). Thus the Special
Appeal Court was proceeding on the
footing that no FIR had been registered
till then. This position was factually
incorrect, because pursuant to the order of
the single judge dated 13.5.2010, the FIR
had already been registered at Case Crime
No. 271 of 2010 on 23.5.10, whereas the
order disposing of the Special Appeal was
passed only on 30.6.2010.

31. After the registration of the FIR,
the said FIR could only be challenged
before a bench hearing criminal writs, and
not before a bench disposing of a Special
Appeal against an order of a single judge
directing registration of the FIR.

32. Another argument raised by Sri
V.P. Srivastava was that as an earlier FIR
dated 25.4.2002 naming 11 persons had
been
lodged
against
some
of
the
petitioners
for
obtaining
ad-hoc
appointments illegally in which the arrests
had been stayed in various writ petitions
and after charge sheets, proceedings had
been stayed on applications under Section
482 Cr.P.C., the present FIR could only
be considered an enlargement of the
earlier FIR and it could not have been
filed as it was in violation of the law laid
down in T.T.Antony v. State of Kerala and
others etc., (2001) 6 SCC 181 and Upkar
Singh v. Ved Prakash and others, (2004)
13 SCC 292. It was argued that a second
FIR is only permissible when a cross
version of the incident is given by the
accused, and there can be no second FIR
for introducing some other material or for
implicating
additional
accused
with
respect to the earlier incident.

33. It may be noted that in the
decision of Upkar Singh itself, it is
mentioned in paragraphs 21 and 22 as
corrected, vide Official Corrigendum No.
F.3/Ed. B.J./86/2004 that:

"21. From the above it is clear that
even in regard to a complaint arising out
of a complaint on further investigation if
it was found that there was a larger
conspiracy than the one referred to in the
previous
complaint
then
a
further
investigation under the Court culminating
in another complaint is permissible.
2 All] Vinayendra Nath Upadhyay and others V. State of U.P. and others
891

22. A perusal of the judgment of this
Court in Ram Lal Narang's case (supra)
not only shows that even in cases where a
prior complaint is already registered, a
counter complaint is permissible but it
goes further and holds that even in cases
where a 1st complaint is registered and
investigation initiated, it is possible to file
a
further
complaint
by
the
same
complainant based on the material
gathered
during
the
course
of
investigation. Of course, this larger
proposition of law laid down in Ram Lal
Narang's case is not necessary to be
relied on by us in the present case. Suffice
it to say that the discussion in Ram Lal
Narang's case is in the same line as found
in the judgments in Kari Choudhary and
State of Bihar v. J.A.C. Saldanna (supra).
However, it must be noticed that in T. T.
Antony's case Ram Lal Narang's case was
noticed but the Court did not express any
opinion either way." (Emphasis added).

34. Recently in Nirmal Singh
Kahlon v. State of Punjab, AIR 2009 SC
984, the case law on the point has been
reviewed, and the Apex Court, has reaffirmed the above noted view in Upkar
Singh, and opined that if the new
conspiracy is different or covers a larger
canvas, and even some new accused are
added (although some accused may be
common in the two FIRs), there is no
fetter on lodging the second FIR.

35. In the instant case we find that
the earlier FIR dated 25.4.02 nominated
10 named government employees, 7 of
whom were clerks, an accounts officer,
and two accountants. The said 10 accused
persons are completely different from the
three government officials, i.e. the DIOS,
Accounts officer and accounts clerk
named in the present case. There are no
allegations in the earlier case of diversion
of General Provident Fund Money, but
the allegations were of getting fake
appointments and payments made to 131
persons
who
were
ineligible
for
employment. There was thus no difficulty
in the second FIR being registered.

36. Contrary to the aforesaid
submission of duplication of FIRs, Sri
G.S. Chaturvedi has argued that the FIR
should be quashed because for multiple
causes
of
action,
and
multiple
conspiracies of unrelated teachers from
different educational institutions with
educational authorities in Ballia a single
FIR at crime No. 271 of 2010 had been
lodged in the present case, and that there
should have been multiple FIRs. He
placed reliance on a decision of this Court
in Rashid Aziz v. State of U.P., 1997 (34)
ACC 726. The FIR in the said case
appears to have been quashed with liberty
to file separate FIRs principally because
the FIR by the District Magistrate in
Rashid Aziz was unwarranted as the DM
himself was the sanctioning authority in
that case under section 39 of the Arms
Act.

37. Moreover, looking to the
complex nature of allegations, and the
case being in the nature of a scam, of
diversion of GPF money to wrongfully
appointees, where the modus operandi of
the criminal activity alleged may have
been similar, the investigation by a single
agency was desirable. Indeed scams of
such magnitude are usually investigated
together by pivotal agencies like the CBI
or the CBCID. Questions relating to
misjoinder of charges under section 223
of the Code can be agitated at the stage of
framing of charges, and not at the initial
stage of investigation. There is also
892 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

nothing to prevent the investigating
officer from filing separate charge sheets
in exercise of his powers under section
173 (2) of the Code, if he is so advised. It
is open for the supervisory agencies in the
police establishment to look into this
issue, and give appropriate guidance to
the investigating officer.

38. In Satvinder Kaur v. State
(Government of NCT, Delhi), AIR 1999
SC 3596, where the goods in the marriage
had been entrusted in Patiala, but the FIR
was lodged in Delhi, the lack of territorial
jurisdiction with the investigating officer,
was held not to be a ground for refusing
to lodge the FIR or to investigate the case.
In Union of India. v. Prakash P. Hinduja,
AIR 2003 SC 2612, relying on H.N.
Rishbud v. State of Delhi, (AIR 1955 SC
196) it has been held that any illegality in
an investigation does not vitiate the trial,
unless it has caused a miscarriage of
justice. In the latter case, the investigation
into a case under the Prevention of
Corruption Act was conducted by an
officer
below
the
rank
of
Dy.
Superintendent of Police. This was in
violation of section 5-A of the Prevention
of Corruption Act. It was observed that
even an invalid investigation does not
vitiate an order of cognizance, unless
miscarriage of justice has resulted.

39. It was further submitted by Sri
G.S. Chaturvedi, that offences under the
provisions alleged i.e 409, 467, 468, 419
and 420 IPC are not made out. We refrain
from giving elaborate comment on this
point
as
it
may
prejudice,
the
investigation or trial. Suffice it is to state
that the money meant for GPF was money
which was to be held in trust for the bona
fide employees and was to be utilized in a
particular manner in accordance to the
directions in law. There would be a
criminal breach of trust, if the said money
was diverted for payment of salaries of
some employees. As per the FIR there are
allegations of preparation of forged
documents by mentioning false dates of
appointments and for withdrawing the
GPF etc. which have been made for
causing wrongful losses to the public
exchequer or to bona fide employees.
Thus prima facie it cannot be said that
offences under the aforesaid sections are
not disclosed.

40. In Rajesh Bajaj v. State NCT of
Delhi, (1999) 3 SCC 259 it has been
observed
that
there
cannot
be
a
hypertechnical approach at the stage of
investigation, and whether an offence
under a particular section is disclosed
cannot be sieved through a cullender of
the finest gauzes at this stage. Thus in
paragraph 12 at page 263 the aforesaid
law report notes: "The High Court seems
to have adopted a strictly hypertechnical
approach and sieved the complaint
through a cullendar of finest gauzes for
testing the ingredients under Section 415
IPC. Such an endeavour may be justified
during trial, but certainly not during the
stage of investigation."

41. It was also submitted by Sri G.S.
Chaturvedi, that the payments were made
and salaries paid from the GPF accounts
only for compliance of the Court's orders
and the said actions were protected under
section 78 of the Penal Code.

42. As we have already clarified
above, salaries cannot be paid arbitrarily
from
any
source
or
account,
and
withdrawal of money from the GPF
account, which is money held in trust for
the regular bona fide employees would
2 All] Vinayendra Nath Upadhyay and others V. State of U.P.