Dismissed

Shambhu Prasad Singh v. State of U.P. and 24 Others

Allahabad HC7 Oct 2020CRLP/4862/2020

Case brief

AI extract

What is this about?

Petitioner challenged multiple FIRs alleging ulterior motives to seek CBI investigation or SIT formation. Court dismissed petition finding no national/international ramifications, no evidence of harassment, and no prima facie case for extraordinary agency intervention.

What did the court decide?

Petition for transfer of investigation to CBI or formation of SIT is dismissed.

Shambhu Prasad Singh Vs State of U.P. and 24… — Criminal Trial and Appeal | Allahabad HC (2020)

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Court No. - 43

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Case :- CRIMINAL MISC. WRIT PETITION No. - 4862 of 2020

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Petitioner :- Shambhu Prasad Singh Respondent :- State Of U.P. And 24 Others Counsel for Petitioner :- Shashank Singh,Gopal Swarup Chaturvedi(Senior Adv.) Counsel for Respondent :- G.A.

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Hon'ble Pankaj Naqvi,J. Hon'ble Vivek Agarwal,J.

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Amendment Application filed today is taken on record.

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Heard Ms. Vijeta Singh, learned counsel for the petitioner and learned A.G.A. for State.

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Petitioner has filed this petition seeking a writ, order or direction in the nature of mandamus commanding the respondents to transfer the investigation to some independent agency, such as CBI or for formation of a Special Investigation Team so to conduct proper and impartial investigation in the cases registered against the petitioner.

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Petitioner's contention is that earlier petitioner was working as a political attache to the respondent no.13 who is a Member of Parliament from Ghaziabad constituency and also Minister of State in the Union Cabinet.

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It is submitted that on 26.04.2019 F.I.R. was registered against the petitioner registering Case Crime no.0886/2019 under Section 420, 467 and 468 I.P.C., P.S.,Kavi Nagar District Ghaziabad.

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Petitioner’s contention is that after this first F.I.R. lodged on 26.04.2019 another F.I.R. was lodged on 11.05.2019 registering Case Crime No.1018 of 2019 under Sections 420 and 406 I.P.C. at P.S. Kavi Nagar, District Ghaziabad.

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Thereafter respondent no.17 lodged another F.I.R. on 21.5.2019 at Kavi Nagar, District Ghaziabad registering Case Crime No.1095 of 2019 under Section 406 I.P.C., again another

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F.I.R. was lodged on 07.06.2019 at P.S. Sahani Gate, District Ghaziabad regarding incident dated 15.04.2019 registering Case Crime No.908 of 2019 under the provisions of Sections 420, 406, 467, 468, 471, 384, 411 I.P.C. Thereafter respondent no.19 lodged F.I.R. on 12.06.2019 at P.S. Kavi Nagar, District Ghaziabad against one Veer Kapoor and respondent no.22 Satendra Tomar as Case Crime No.1260 of 2019 under Sections 506, 504, 323 and 452 I.P.C.

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It is an admitted position that in these cases either the accused were granted bail (anticipatory/regular) or Court was pleased to direct that petitioner shall not be arrested till submission of the police report under Section 173 (2) Cr.P.C.

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It is submitted that another F.I.R. was lodged on 24.06.2019 at P.S. Kavi Nagar, District Ghaziabad against Veer Kapoor registering Case Crime No.1346 of 2019 under Sections 420, 467, 468 and 471 I.P.C. in which Veer Kapoor was granted anticipatory bail by the Court of Additional District and Sessions Judge, Ghaziabad on 21.08.2019. Another F.I.R. was lodged on 12.07.2019 registering Case Crime No.1465 of 2019 under Section 420, 467, 468 and 471 I.P.C. against the petitioner and Veer Kapoor. Petitioner was granted regular bail by the Court of Additional Sessions Judge, Ghaziabad. Thereafter, respondent no.20 lodged an F.I.R. at P.S. Murad Nagar, District Ghaziabad registering Case Crime No.0574 of 2019 under Sections 420 and 467 I.P.C. In this case petitioner was granted regular bail by the Court of additional Sessions Judge, Court No.2, Ghaziabad.

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Respondent no.21 lodged F.I.R. on 06.08.2019 at P.S. Masuri District Ghaziabad registering Case Crime No.0543 of 2019 under Sections 467, 406 and 420 I.P.C. In this case also petitioner was granted regular bail by the Court of Additional Sessions Judge, Court No.2, Ghaziabad vide order dated 29.08.2019.

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Respondent no.22 lodged another F.I.R. dated 30.08.2019 at P.S. Sihani Gate, District Ghaziabad against the petitioner, Veer Kapoor, Santosh and respondent no.24 registering Case Crime No.1346 of 2019 under Sections 471, 468, 467 and 420 I.P.C. in which petitioner was granted anticipatory bail by the Court of Additional Sessions Judge, Court No.1, Ghaziabad.

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It is petitioner’s contention that another F.I.R. was lodged by respondent no.23 on 11.09.2019 at P.S. Kavi Nagar, District Ghaziabad against the petitioner, Veer Kapoor, Santosh registering Case Crime No.1843 of 2019 under Sections 420, 467, 468, 471, 323, 504 and 506 I.P.C. in which petitioner was granted anticipatory bail by the Court of Additional Sessions Judge, Court No.1, Ghaziabad on 11.12.2019.

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Respondent no.10 had also lodged a F.I.R. dated 21.09.2019 at P.S. Kavi Nagar, District Ghaziabad against the petitioner and Veer Kapoor registering Case Crime No.1904 of 2019 under the provisions of Sections 2 and 3 Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

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Respondent no.24 lodged another F.I.R. dated 28.09.2019 against the daughter of the petitioner which was registered as Case Crime No.1928 of 2019 under Section 386 I.P.C. read with Section 66-D of the Information Technology Act. Daughter of the petitioner was granted bail in the aforesaid case.

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Respondent no.22 lodged F.I.R. dated 19.10.2019 at P.S. Kavi Nagar, District Ghaziabad regarding an undated incident against the wife and daughter of the petitioner and one Rahul which was registering as Case Crime No.2007 of 2019 under Sections 420 and 386 I.P.C. The daughter of the petitioner was granted bail from the district court, Ghaziabad.

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Respondent no.25 lodged F.I.R. dated 10.02.2020 at P.S. Kavi Nagar, District Ghaziabad against the petitioner registering as Case Crime No.0313 of 2019 under the provisions of Sections 471, 468, 467 and 420 I.P.C. Admittedly, petitioner

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was granted anticipatory bail by the Additional Sessions Judge, Court No.2, Ghaziabad.

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Petitioner’s contention is that respondents have formed of syndicate and targeting the petitioner with a view to harass him physically, mentally and economically. It is submitted that respondents have no regard and fear of law. Similarly, it is complained that petitioner’s vehicle was in custody of respondent no.24 which was subject matter of F.I.R. dated 07.06.2019 (annxure-8) in which custody of the vehicle was handed over by the Court concerned in favour of respondent no.24.

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It is submitted by Ms. Vijeta Singh, learned counsel for petitioner that since petitioner’s relationship with respondent no.13 has turned bitter over certain political differences, he is being targeted by team of members mostly by Tyagi brothers so to harass the petitioner and his relatives/associates inasmuch as petitioner had addressed a press conference to highlight the corruption charges against the respondent no.13 and since then these slew of F.I.Rs has been lodged against him.

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Learned counsel for petitioner submits that in fact learned court below has made an observation to the effect that payment of more than Rs.20,000/- in cash is not permissible as is allegedly reflected from the order dated 23.10.2019 passed by Additional Sessions Judge, Court No.1, Ghaziabad in anticipatory bail application no.505 of 2019 and 530 of 2019, therefore it is apparent that charges of accepting illegal gratification running in several lakhs in cash are not made out.

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It is submitted that investigation is faulty and despite such observation by learned Additional Sessions Judge, Ghaziabad no action has been taken against informants. In this back drop it is submitted that petitioner’s have no faith on the police authorities/officers of the district Ghaziabad as it is the constituency of the respondent no.13, who is also a sitting

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Member of Parliament of Ghaziabad. In the aforesaid back ground it is submitted that since petitioner has undergone bypass surgery and has a long medical history, therefore, he is not in a position to undertake so much of stress and thus prays for handing over the investigation to CBI or to a Special Investigation Team (SIT).

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Learned counsel for petitioner places reliance on the judgment of Apex Court in case of Shailendra Singh vs. State of Rajasthan saying that under similar facts and circumstances case was handed over to the CBI. Reliance is also placed on the judgment of Inder Mohan Goswami & Another vs State Of Uttaranchal & Others as reported in AIR 2008 SC 251 wherein it has been held that the court must ensure that criminal prosecution is not utilised as an instrument of harassment or for seeking private vendetta for the ulterior motives.

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Learned Public Prosecutor in his turn submits that petitioner has filed this petition referring to several F.I.Rs in some of which either petitioner is not a party or the F.I.R. has been lodged against somebody else.

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23. It is also submitted that different F.I.Rs have been lodged by different persons and there is no direct connection between these F.I.Rs so to demonstrate that there a direct nexus between complainants and the respondent no.13.

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In this back drop, it is submitted that no case for quashing of the F.I.R. or for transferring the case to CBI or Special Investigation Team is made out. Petition is devoid of any material, deserves to be and be dismissed as such.

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After hearing arguments of learned counsel for the parties and going through the records, it is apparent that Case Crime No.0886 of 2019, F.I.R. was lodged on 26.04.2019 by one Surjeet Singh, P.S. to the Minister of State (Respondent no.13) alleging that complaints were received by the Minister of State against the petitioner that he was trying to make illegal money

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by misusing the name of the Minister of State and was indulging in notorious activities along with other persons inasmuch as the accused/ petitioner had earlier worked with one Shri Sikdar as APS in the Ministry of Telecommunication. He created a network of people to help in illegal activities. It is also alleged that petitioner purchased properties in Mumbai and Goa through illegal means. In September, 2018 one of his family members was found impersonating as staff of the MOS when matter was reported at Tughlak Road Police Station, New Delhi. It is also mentioned in the report that petitioner is duping people by impersonation and cheating the staff of the Minister with the intention to make capital using illegal means, even after his removal.

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Another F.I.R. has been lodged by Rohit Tyagi, son of Shri Anil Tyagi registering F.I.R. in Case Crime No.1018 of 2018 under Sections 420 and 406 I.P.C. mentioning therein that petitioner had taken bribe from the complainant in the name of getting his car attached to the office of MOS, duped the complainant, kept the copy and had obtained his signatures on blank papers. Complainant had sought return of his vehicle bearing no. UP-14/CU-6818.

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Third F.I.R. has been lodged registering Case Crime No.1095 of 2019 by Sivanshu Tyagi son of Late Jai Prakash Tyagi in regard to Tata Zest vehicle No.UP-14/CN-0128.

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F.I.R. registering Case Crime No.908 of 2019 has been registered by Ajai Tyagi sons of Bhudev Tyagi alleging that petitioner had taken a sum of Rs.3.00 lakhs in the name of General V.K. Singh by misusing his letter head.

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Case Crime No.1260 of 2019 has been registered at the instance of one Rahul Singh son of Gavendra Singh and in this F.I.R. petitioner is not an accused person. This F.I.R. is against Pallav Singh and Veer Kapoor.

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30. F.I.R. registering Case Crime No.1346 of 2019 is in regard to forging signatures of the mother of complainant. Accused in this case is Virendra Kapoor and not the petitioner.

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F.I.R. registering Case Crime No.1465 of 2019 is also on the same subject regarding forging signature of the mother of the complainant is against one Veer Kapoor and the present petitioner.

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32. F.I.R. registering Case Crime No.0574 of 2019 has been lodged by Vipin Tomer son of Satyendra Tomar resident of Ghaziabad alleging that petitioner had obtained a sum of Rs.2.00 lakhs from the complainant in the name of appointing him as Chairman U.P. Chapter of Federation of Association of Small Industries of India (FASII).

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33. F.I.R. registering Case Crime No.0543 of 2019 has been lodged by one Vasu son of Sanjay Gautam against the petitioner alleging that petitioner had obtained a sum of Rs.4.00 lakhs in the name of making him Chairman of U.P. Chapter of Federation of Association of Small Industries of India.

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Another F.I.R. registering Case Crime No.1346 of 2019 has been lodged by Satyendra Tomar son of Pramod Tomar alleging that petitioner had in collusion with one Pallav Singh and Veer Kapoor duped him of a sum of Rs.5.00 lakhs in the name of giving him post in an organization on the strength of his position as a personal attache to the Minister of State.

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Case Crime No.1843 of 2019 has been registered at the instance of Imran son of Nai Muddin Salmani alleging that petitioner had obtained a sum of Rs.2.00 lakhs in the name of getting him a post in the organization mentioned in the F.I.R.

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Case Crime No.1904 of 2019 has been registered against the petitioner and Veer Kapoor registering cases against them under the provisions of Sections 2 and 3 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

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Case Crime No.1928 of 2019 has been registered by Pallav Kumar Singh son of late Akshay Kumar Singh against Arushi daughter of petitioner on the ground that S.P. Singh is the maternal uncle of complainant and his daughter is coercing him to pay amounts in the form of extortion and is trying to blackmail him.

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F.I.R. registering Case Crime No.2007 of 2019 is against wife, daughter of the petitioner and another person namely Rahul alleging that a sum of Rs.10.00 lakhs was being sought in extortion when petitioner was in jail.

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Case Crime No.313 of 2020 has been registered at the instance of M.L. Sethi, against the petitioner alleging that the documents which have been produced by petitioner to obtain bail in Case Crime no.886 of 2019 are totally forged and fabricated. It is alleged that petitioner obtained bail on the basis of forged and fabricated documents, therefore, a prayer has been made to register a case against the petitioner.

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Though the petitioner has mentioned in the petition that he has undergone bypass surgery but there are no documents to support the contention of the petitioner that he has in fact undergone bypass surgery.

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Reference to the order of learned Additional Sessions Judge, that amount of Rs.20,000/- and above cannot be paid as per the provisions of the Income Tax Act, 1961, is also not made out as these provisioins are for transactions having legal sanctity and not for alleged transactions involving acceptance of illegal gratification.

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In case of Inder Mohan Goswamy (supra) though the Supreme Court has held that while exercising the inherent powers, the court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused, but it is also mentioned that inherent power should not be exercised to stifle a legitimate prosecution. Court should

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restrain from giving a prima facie decision in a case where entire facts are incomplete and hazy. More so when the evidence has not been collected and produced before the court and the issues involved are of such magnitude, they cannot be seen in their true prospective without sufficient material.

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Thus take home of the judgment from Supreme Court in case of Inder Mohan Goswamy (supra) is that while courts are duty bound to see that criminal prosecution is not used as a means of harassment but at the same time it has to also be cautious that the inherent powers be not exercised to stifle a legitimate prosecution. Where prosecution is not ex-facie , mala fide, the word of caution is that without evidence being collected, court should act with caution.

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Petitioner’s reliance on the judgment of Shailendra Singh vs. State of Rajasthan depicting to be the judgment of Apex Court in paragrah 55 of the petition is a miss representation inasmuch as this is a judgment of Rajasthan High Court passed in S.B. Criminal Misc. Petition No.5124 of 2014 decided on 15.01.2015 by the Jaipur Bench of the High Court of Judicature for Rajasthan. Before adverting to the ratio of the judgment, it is necessary to put a word advice that lawyers approaching the court making such glaring miss representation in the petition as has been made in the present case amounts to groping in dark. It is apparent that no citation has been mentioned in paragraph 55 or elsewhere in the petitioner in regard to the judgement rendered in case of Shailendra Singh vs. State of Rajasthan and such practice in the hands of the person who has drafted the petition, who has settled the petition, if any, and the counsel who is representing the parties clearly demonstrates that parties are miss-representing the facts and law so to gain un due milage which is not a healthy practice for the growth of the institution of justice of which both lawyers and judges are party and therefore, such practice is condemnable and parties should preserve the sanctity of the

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system failing which courts be constrained to not to trust the pleadings and impose heavy cost.

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On merits, the facts of the case of Shailendra Singh vs. State of Rajasthan are that F.I.R. bearing no.229 of 2014 was registered with P.S. Iawa, District Kota. A huge quantity of Bajri was recovered and given on supurdagi to petitioner and others. A F.I.R. was lodged and police named the petitioner and others.

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Learned public prosecutor was asked to call the Investigating Officer to find out the basis for naming the petitioner and others as accused immediately on recording of F.I.R. more so when, it was registered without naming anyone.

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It is mentioned in the order that while lodging the F.I.R., request was made by the officer of Government Department not to name the accused having political background and support, and thus F.I.R. was lodged by him without naming any one, though names were disclosed otherwise.

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In this back drop, and on the consent of the learned public prosecutor who had given his no objection to transfer of the case to CBI for investigation case was transferred to CBI. Facts of that case are different from the present case.

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In view of such facts the judgment in case of Shailendra Singh is distinguishable from the facts and circumstances of the present case.

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Supreme Court in case of State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others as reported in (2010) 3 SCC 226 has held that the direction of High Court under Article 226 or Supreme Court under Article 32 directing CBI to investigate a cognizable offence in a State without the consent of the State Government, is permissible, if it is issued in exercise of power of judicial review to protect and ensure fundamental rights in general and Article 21 in particular. But this extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes

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necessary to provide credibility to and instill confidence in investigations or where the incident may have national or international ramification or where such an order may be necessary for doing complete justice and enforcing the fundamental rights, on being satisfied that the material discloses a prima facie case calling for investigation by CBI.

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In the present case though petitioner has impleaded two former and one present S.S.P., Ghaziabad so also Inspector of Crime Branch, S.H.O. of Police Station Kavi Nagar, Ghaziabad, Sub Inspectors of P.S. Kavi Nagar and Murad Nagar, Sihani Gate as party besides all the complainant but there is no averment in the petition or any document on record to demonstrate that petitioner ever approached any of the officials with a request that he is being harassed or to allege any mala fide in the investigation. There is no iota of allegation in the writ petition making any allegation of bias, arbitrariness or mala fide on the part of the State authorities. There is no documentary evidence to substantiate such assumption, if any, and therefore, merely because petitioner is subjected to several cases which are personal/individual in nature and which have neither any national or international ramification nor any facet of violation of fundamental rights has been brought on record, then it is also true and as has been held by the Supreme Court that extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations where the incident may have national or international ramifications or where such order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigation.

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In case of Secretary, Minor Irrigation and Rural Engineering Services, U.P. and others Vs. Sahngoo Ram

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Arya and another as reported in (2002) 5 SCC 521 Supreme Court has held that an order directing an enquiry by CBI should be passed only when the High Court, after considering the material on record, comes to conclusion that material does disclose a prima facie case calling for investigation by CBI or any other similar agency.

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In the present case since the material brought on record does not disclose a case having national or international ramification or having impact on the fundamental rights of the petitioner, the caution which has been observed in case of State of West Bengal (supra) that CBI cannot be flooded with large number of cases so to put its credibility on stake, this Court is of the opinion that no case for CBI enquiry is made out.

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As far as other prayer for Constitution of special investigation team is concerned, State of U.P. vide Government order dated 16.06.2007 has constituted Special Investigation Team (S.I.T.) so as to create a multi-disciplinary investigating agency which can effectively enquire and investigate cases relating to influential persons and public servants who misuse their high position or connection and indulge in commission of irregularities of serious nature and economic offences. This notification throws light on the utility of the S.I.T. as a multidisciplinary investigating agency.

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Multi-disciplinary approach, is required when nature of the crime is such which requires experts from diverse fields like forensic medicine, ballistic experts, finger printing experts etc. so to integrate various facets of a crime in a combined framework so to prevent the investigation going hey-way. In the present case, prima facie, neither there is any element of multi-disciplinary approach required in investigation nor there is any prima facie material that respondent no.13 is a party to the alleged crime for which cases have been registered against the petitioner and some other persons. Matters are still under investigation. Petitioner is on bail in most of the cases, as admitted by him, therefore, his life & liberty is not at stake so

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to make out a direct and clinching case of violation of Article 21 of the Constitution of India.

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In view of such facts, even formation of S.I.T. cannot be directed. Thus petitioner has failed to make out any case for interference either on the basis of material available on record or in the light of the law on the subject as has been espoused by the Supreme Court or different High Courts. Thus petition being devoid of merit, deserves to be dismissed and is dismissed.

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Order Date :- 7.10.2020 VS/S.K.S.

Shambhu Prasad Singh v. State of U.P. and 24 Others

Case brief

What is this about?

What did the court decide?

Shambhu Prasad Singh v. State of U.P. and 24 Others

Case brief

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