# Yamuna Prasad Yadav v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 319
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-08
- **Case number:** Writ C No. 26033 of 2019
- **Bench:** Shashi Kant Gupta, Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yamuna-prasad-yadav-v-state-of-u-p-ors-45134
- **Pages:** 6

## Headnote

Criminal Law-Code of Criminal Procedure,
1973 (2 of 1974) - S. 154 - Registration of
FIR - against government officer /public
servant, after his retirement - Held - There
is no bar in lodging the FIR against the
public servant who has retired, in case
cognizable offence is disclosed - Lodging
of FIR cannot be refused on the ground
that there is no relationship of Master and
Servant - once public servant retires or
superannuates or ceases to be in his
office, then no sanction of the competent
authority is required to prosecute him for
the offences committed by him under the
colour of his office. (Para 11, 12)

Writ Petition dismissed. (E-4)

List of Cases cited: -

## Text

2 All. Yamuna Prasad Yadav Vs. State of U.P. & Ors.
319
to have occasioned any prejudice to the
petitioner.

10. The Commissioner was not
obliged to send the first report (three
member) to the State Government for the
simple reason that the Joint Development
Commissioner was the Chairman in both
the Committees and while sending the
second report dated 21.10.2019, he was
aware of contents of the first report. The
matter can be viewed from another
perspective also. The petitioner was put to
show cause on certain charges to which
he, admittedly, responded. If the State has
chosen not to rely on the first report dated
06.08.2019, then how can the petitioner
insist that show cause must be issued on
the basis of first report?

11.

We,
in
view
of
above
factual/legal position, are not impressed
with the plea that the impugned order
suffers from the vice of non-application of
mind.

12. Admittedly, inquiry proceedings
are pending. The pending inquiry before
the State Government is directed to be
concluded as expeditiously as possible,
preferably, within six weeks from the date
a copy of this order is produced before it.

13. The writ petition is dismissed,
subject to above observations.
----------
(2021)02ILR A319
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.08.2019

BEFORE

THE HON'BLE SHASHI KANT GUPTA, J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.
Writ C No. 26033 of 2019

Yamuna Prasad Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Babu Ram Yadav, Sri Shashi Nandan

Counsel for the Respondents:
C.S.C.

Criminal Law-Code of Criminal Procedure,
1973 (2 of 1974) - S. 154 - Registration of
FIR - against government officer /public
servant, after his retirement - Held - There
is no bar in lodging the FIR against the
public servant who has retired, in case
cognizable offence is disclosed - Lodging
of FIR cannot be refused on the ground
that there is no relationship of Master and
Servant - once public servant retires or
superannuates or ceases to be in his
office, then no sanction of the competent
authority is required to prosecute him for
the offences committed by him under the
colour of his office. (Para 11, 12)

Writ Petition dismissed. (E-4)

List of Cases cited: -

1. Abhay Singh Chautala Vs CBI (2011) 7 SCC
141

2. Lalita Kumari Vs Govt. of U.P. & ors (2014) 2
SCC 1

(Delivered by Hon'ble Shashi Kant Gupta, J.
&
Hon'ble Saurabh Shyam Shamshery, J.)

1. Heard Sri Shashi Nandan, learned
Senior Counsel assisted by Shri Babu Ram
Yadav, learned counsel for the petitioner,
learned Standing Counsel for respondents
and perused the record.

2. The petitioner has retired from the
post of Gram Panchayat Adhikari, Block
320 INDIAN LAW REPORTS ALLAHABAD SERIES
Bahadurpur,
District
Prayagraj
on
30.06.2019. On 03.07.2019, a news was
published in the Hindi news paper "Dainik
Jagran" with heading "Rishwat Lete ADO
Ka Video Viral, Afsaro me Hadkamp". In
the newspaper, it was mentioned that the
petitioner
before
his
retirement
had
demanded
and
accepted
bribe
of
Rs.20,000/- from a Pradhan and his act was
recorded by a mobile phone and the said
video was circulated on the social media.

3. It has been alleged by the petitioner
that subsequent to this news, payment of
retiral benefits of the petitioner has also
been
stopped
without
any
prior
information.

4. Taking cognizance of the aforesaid
news, the District Magistrate, Prayagraj
directed the Additional District Magistrate,
Prayagraj to conduct an inquiry in regard to
aforesaid news and to submit a report. The
Additional District Magistrage, Prayagraj
issued notice to petitioner and sought his
explanation on the said viral news. In
pursuance
of
the
notice,
petitioner
submitted an explanation dated 06.07.2019
wherein he has denied all the allegations
made against him in the news as well as in
the viral video. The petitioner also
submitted that the Gram Pradhan as well as
other persons have submitted affidavit to
the effect that no such incident took place
as alleged in the newspaper. The petitioner
also made a statement before Additional
District
Magistrate,
Prayagraj
on
06.07.2019 wherein he has denied the
allegations made in the news as well as in
the viral video.

5. Smt. Sapna, Gram Pradhan has
gave
statement
before
the
A.D.M.,
Prayagraj on 06.07.2019 wherein she has
accepted that the petitioner has taken
Rs.20,000/-
from
her
husband
for
construction of toilet under Swach Bharat
Mission at her place, however, she has
denied that she recorded the video.

6. Shri Gore Lal, husband of Smt.
Sapna also gave statement before A.D.M.
Prayagraj on 06.07.19 wherein he has also
accepted that the petitioner has taken
Rs.20,000/- from him. However, he denied
that he recorded the video.

7. The A.D.M. City Prayagraj after
considering the incident shown in the video
clip, statement recorded as well as reports
submitted by the Panchayat Raj Officer,
Prayagraj as well as Block Development
Officer, Block - Bahadurpur, Prayagraj in
regard to the earlier misconduct of the
petitioner
prepared
his
report
dated
6.7.2019
whereby
the
A.D.M.
recommended to lodge an FIR against the
petitioner. In the inquiry report, the A.D.M.
has taken note of the fact that earlier an FIR
was lodged against the petitioner and in
pursuance of the said FIR, the petitioner
remained in jail for certain period.

8. The inquiry report dated 6.7.2019
prepared
by
the
Additional
District
Magistrate, Prayagraj was communicated to
the District Magistrate, Prayagraj. On the
basis of the said inquiry report, the District
Magistrate, Prayagraj, vide order dated
8.7.2019 directed the District Development
Officer, Prayagraj to lodge an FIR against
the petitioner. The District Development
Officer
further
directed
the
District
Panchayat Raj Officer, Prayagraj, vide
letter dated 15.7.2019 to lodge an FIR
against the petitioner. The Zila Panchayat
Raj Officer, Prayagraj further directed the
Additional Development Officer, vide letter
dated 27.7.2019 to lodge an FIR against the
petitioner. The above mentioned orders
2 All. Yamuna Prasad Yadav Vs. State of U.P. & Ors.
321
dated 8.7.2019, 15.7.2019 and 27.7.2019
are impugned in the present petition.

9. Shri Shashi Nandan, learned Senior
Counsel submitted that the entire inquiry
conducted against the petitioner by the
department and direction for lodging FIR
against the petitioner is illegal as the
respondents have no authority to lodge an
FIR against the petitioner. The petitioner
has already retired before the initiation of
such inquiry and thus, there is no
relationship of Master and servant, and as
such the direction for initiaiting inquiry as
well as direction for lodging an FIR is
patently illegal. Learned Senior counsel
further submitted that the affidavit filed on
behalf of the Pradhan and others wherein
allegations made in the video have been
denied
have
not
been
taken
into
consideration and the inquiry has been
conducted in arbitrary manner. Learned
Senior Counsel also relied upon the Second
Proviso of Section 8 of the Prevention of
Corruption Act, 1988 that in case, a person
is aggrieved regarding the offence relating
to demand of bribe by a public servant, he
should inform the concerned authorities
within a period of 7 days. However, in the
present matter, the alleged aggrieved
person has not approached any authority to
ventilate his grievances, therefore the entire
exercise undertaken by the respondents is
illegal and liable to be quashed.

10. Learned Standing Counsel on
behalf of the respondent has submitted that
there is no bar to lodge an FIR against any
retired employee. The direction of lodging
an FIR is passed after conducting an
inquiry wherein the statement of the
petitioner as well as the person shown in
the video, who gave bribe to the petitioner
have
been
recorded
and
only
after
considering
the
materials,
A.D.M.
Prayagraj come to the conclusion that a
case is made out against the petitioner for
lodging an FIR. Learned counsel further
submitted that still, no FIR is lodged and
the petitioner has remedy available under
the provisions of Code of Criminal
Procedure, 1973 (hereinafter referred as
Cr.P.C.) to challenge the FIR as and when
an FIR is lodged against him. Therefore,
the present writ petition is premature and
liable to be dismissed.

11. It is well settled that a public
servant cannot be removed from his office
without prior sanction of the competent
authority only when he holds the office, but
once he retires or superannuates or ceases
to be in his office, then no sanction of the
competent
authority
is
required
to
prosecute him for the offences committed
by him under the colour of his office. It is
relevant at this stage to quote the following
paragraphs 32, 33, 34, of the judgment
passed by the Hon'ble Supreme Court in the
matter of Abhay Singh Chautala V. CBI
reported in (2011) 7 SCC 141 that :-

"32. Same argument was tried to
be raised on the question of plurality of the
offices held by the public servant and the
doubt arising as to who would be the
sanctioning authority in such case. In the
earlier part of the judgment, we have
already explained the concept of doubt
which is contemplated in the Act, more
particularly in Section 19(2). The law is
very clear in that respect. The concept of
`doubt' or `plurality of office' cannot be
used to arrive at a conclusion that on that
basis, the interpretation of Section 19(1)
would be different from that given in
Antulay's case (cited supra) or Prakash
Singh Badal v. State of Punjab (cited
supra). We have already explained the
situation that merely because a concept of
322 INDIAN LAW REPORTS ALLAHABAD SERIES
doubt is contemplated in Section 19(2), it
cannot mean that the public servant who
has abused some other office than the one
he is holding could not be tried without a
sanction. The learned senior counsel tried
to support their argument on the basis of
the theory of "legal fiction". We do not see
as to how the theory of "legal fiction" can
work in this case. It may be that the
appellants in this case held more than one
offices during the check period which they
are alleged to have abused; however, there
will be no question of any doubt if on the
date when the cognizance is taken, they are
not continuing to hold that very office. The
relevant time, as held in S.A. Venkataraman
Vs. State (cited supra), is the date on which
the cognizance is taken. If on that date, the
appellant is not a public servant, there will
be no question of any sanction. If he
continues to be a public servant but in a
different capacity or holding a different
office than the one which is alleged to have
been abused, still there will be no question
of sanction and in that case, there will also
be no question of any doubt arising
because the doubt can arise only when the
sanction is necessary. In case of the present
appellants, there was no question of there
being any doubt because basically there
was no question of the appellants' getting
any protection by a sanction.

33. We do not, therefore, agree
with learned Senior Counsel Shri Mukul
Rohtagi as well as Shri U.U. Lalit arguing
for the appellants, that the decision in
Antulay's case (cited supra) and the
subsequent
decisions
require
any
reconsideration for the reasons argued
before us. Even on merits, there is no
necessity of reconsidering the relevant ratio
laid down in Antulay's case (cited supra).
34. Thus, we are of the clear view that the
High Court was absolutely right in relying
on the decision in Prakash Singh Badal v.
State of Punjab (cited supra) to hold that
the appellants in both the appeals had
abused entirely different office or offices
than the one which they were holding on
the date on which cognizance was taken
and, therefore, there was no necessity of
sanction under Section 19 of the Act as held
in K.Karunakaran v. State of Kerala (cited
supra) and the later decision in Prakash
Singh Badal v. State of Punjab (cited
supra). The appeals are without any merit
and are dismissed."(emphasis supplied)

12. We have considered the rival
submissions and perused the record.
Admittedly that the petitioner got retired
even before the news of video was
published in the newspaper. However, the
respondents after considering the replies
made on behalf of the petitioner as well as
of concerned parties have come to the
conclusion that an FIR should be lodged
against the petitioner for committing
offence. As the petitioner has unable to
produce any record to show that the FIR
has been lodged against him, therefore, we
are of the considered opinion that the writ
petition is premature. Sofar as filling of an
FIR after retirement is considered, learned
Senior Counsel for the petitioner has failed
to substantiate his arguments to submit that
after retirement, no FIR can be lodged.
There is no bar in lodging the FIR against
the public servant who has retired, in case
cognizable offence is disclosed. Against the
lodging of an FIR, the petitioner has all the
remedy available in the Code of Criminal
Procedure. The Constitution Bench of the
Supreme Court in Lalita Kumari vs.
Government of U.P. and others reported in
(2014) 2 SCC 1 has held that the
registration of First Information Report is
mandatory under Section 154 of the Cr.P.C.
if the information discloses commission of
a cognizible offence. The lodging of FIR
2 All. Yamuna Prasad Yadav Vs. State of U.P. & Ors.
323
cannot be refused on the ground of the
status of the complaint or of an accused.
Therefore, the impugned direction for
lodging an FIR in the present matter cannot
be held illegal on the ground that the such
direction has been passed by a Government
Officer after the petitioner has retired.
Lodging of FIR cannot be refused on the
ground that there is no relationship of
Master and Servant. Conclusion/Direction
passed by Supreme Court in Lalita Kumari
(supra) are as follows:-

"Conclusion/Direction:-

120. In view of the aforesaid
discussion, we hold:

120.1. The registration of FIR is
mandatory under Section 154 of the Code,
if the information discloses commission of
a cognizable offence and no preliminary
inquiry is permissible in such a situation.

120.2. If the information received
does not disclose a cognizable offence but
indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only
to ascertain whether cognizable offence is
disclosed or not.

120.3. If the inquiry discloses the
commission of a cognizable offence, the
FIR must be registered. In cases where
preliminary inquiry ends in closing the
complaint, a copy of the entry of such
closure must be supplied to the first
information forthwith and not later than
one week. It must disclose reasons in brief
for
closing
the
complaint
and
not
proceeding further.

120.4. The police officer cannot
avoid his duty of registering offence if
cognizable offence is disclosed. Action must
be taken against erring officers who do not
register the FIR if information received by
him discloses a cognizable offence.

120.5. The scope of preliminary
inquiry is not to verify the varacity 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 cases. 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.
While
ensuring
and
protecting the rights of the accused and the
complainant, a preliminary inquiry should
be made time-bound and in any case it
should not exceed 7 days. The fact of such
delay and the causes of it must be reflected
in the General Diary entry.

120.8.
Since
the
General
Diary/Station Diary/Daily Diary is the
record of all information received in a
police
station,
we
direct
that
all
information relating to cognizable offences,
whether resulting in registration of FIR or
leading to an inquiry, must be mandatorily
and meticulously reflected in the said diary
and the decision to conduct a preliminary
inquiry
must
also
be
reflected,
as
mentioned above."

13. In the present matter, Learned
Senior Counsel for the petitioner has faild
324 INDIAN LAW REPORTS ALLAHABAD SERIES
to show any provision which imposes bar
on lodging of an FIR against any retired
Government officer. Therefore, we do not
find any merit in the present writ petition.
However, the petitioner is at liberty to take
legal recourse if so advised as provided
under the law for redressal of his
grievances.

14. With the aforesaid observations,
the writ petition stands dismissed.
----------
(2021)02ILR A324
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2021

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Writ C No. 26097 of 2020

Ahmad Mujtaba Faraz ...Petitioner
Versus
Aligarh Muslim University & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Nitin Chandra Mishra, Sri Vibhu Rai, Sri
Anoop Trivedi

Counsel for the Respondents:
Sri Shashank Shekhar Singh, Sri Neeraj
Tripathi (Addl. Advocate General)

A. Constitution of India,1950-Article
226-challenge
to-cancellation
of
candidate admission in Ph.D. Program
in AMU-the candidate raised slogan
against
Vice-Chancellor
and
the
Registrar at Republic Day Celebrationan expression of dishonour of the
national
festival-person
seeking
admission in University must be up to
mark as an educated person-gross
indiscipline and misdeeds detrimental
to
the
public
at
large-anti-social
activity and attitude should not be
compromised at the cost of national
interest-conclusion
drawn
by
the
controller of examination is justified
for not allowing admission to the
applicant.(Para 1 to 14)

The writ is dismissed. ( E-5)

(Delivered by Arvind Kumar Mishra-I, J.)

1. Computer Section is directed to
correctly describe name of the petitioner
as Ahmad Mujtaba Faraz in place of
Ahmad Majaba Faras in the array of the
parties.

2. Heard Sri Anoop Trivedi, learned
Senior Counsel assisted by Nitin Chandra
Mishra, learned counsel for the petitioner,
Sri Neeraj Tripathi, learned Additional
Advocate
General
(through
video
conferencing) assisted by Sri Shashank
Shekhar Singh, learned counsel for the
Aligarh Muslim University.

3. By way of the instant petition, the
petitioner has sought following relief (s):

1. Issuance of writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
26.11.2020 (annexure no.1) passed by
respondent
no.3
with
direction
to
respondent no.3 to call the petitioner for
presentation cum interview in Ph. D.
Programme in Human Rights as well as
Women's Studies.

2. Further direction was sought
to be issued to respondent nos.2 and 3 to
consider candidature of the petitioner for
Ph. D. in subjects of Human Rights as well
as Women's Studies.

3. Issue any writ order or
direction, which the Court may deem fit
and proper in the facts and circumstances
of the case.