- (1.) SINCE both these writ petitions have been filed for quashing of the First Information Report registered at Case Crime No. 86 of 2006, under Sections 218, 419, 420, 120-B I. P. C. and 12/13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988, P. S. Kotwali, District Agra, therefore, they are decided by this common order.
(2.) ACCORDING to the allegations of First Information Report a vigilance enquiry was conducted against officials of A. D. A. and Nagar Nigam, Agra, for permitting unauthorized constructions by builders. The report was submitted after a detailed enquiry and it was found that officials had committed various offences punishable under Prevention of Corruption Act and under Section 120-B I. P. C. The vigilance enquiry proposed prosecution of those officials who were found involved but against petitioners only minor punishment under Rule 3 of Government Servants Conduct Rules, 1956, was recommended. The report was accepted by the State Government but the recommendations of vigilance enquiry report regarding minor punishment against the petitioners under Rule 3 of Government Servants Conduct Rules was not accepted and the State Government also directed for registration of case and investigation against them. In pursuance of the order passed by the Government impugned report was registered. We have heard Sri B. D. Madhyan, Senior Advocate, for the petitioners and learned A. G. A. and also perused the written submission. The Counsel for the petitioners submitted that State Government was not justified in lodging the report against the petitioners on the basis of the vigilance enquiry because the said enquiry had recommended only minor punishment. The allegations against the petitioners were that they did not seal the premises or did not pass the order for demolition and they had acted with negligence. It is further submitted that the conduct of the petitioner's cannot be covered under the provisions of Prevention of Corruption Act. In support of his submissions Sri Madhyan had placed reliance on the observations of the Apex Court in the case of Raghuvansh Lal Bans v. State of U. P. , reported in AIR 1957 SC 486, wherein it was observed that in order to sustain the conviction under Section 218, it is not sufficient that entries are incorrect, but it is essential that the entry should have been made with the intention mentioned in that section. Where direct evidence proving the necessary criminal intention is lacking in the case and the circumstantial evidence is too meager to support any safe conclusion as to the intention with which the accused made the entry complained of, it must be held that the prosecution has failed to prove the necessary criminal intention. In the case of Union of India v. J. Ahmad, reported in AIR 1979 SC 1022, the Apex Court had laid down that the lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would not themselves constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. In the case of Devendra Kumar Singla v. Baldeo Kishan Singla, reported in 2004 (1) JIC 849 (SC) : AIR 2004 SC 3084, the Apex Court had considered the ingredients of the offence of cheating. Another decision relied upon by the Counsel for the petitioner is in the case of Hira Lal Hari Lal Bhagwati v. CBI, reported in (2003) 5 SCC 257, where the Apex Court had held that to bring home the charge of conspiracy within the ambit of Section 120-B of the Indian Penal Code, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is difficult to establish conspiracy by direct evidence. In the case of G. Sagar Suri & Anr. v. State of U. P. & Ors. , (2002) 2 SCC 636, the Apex Court had held that merely because the accused persons had already filed an application in the Court of Additional Judicial Magistrate for their discharge, it cannot be urged that the High Court cannot exercise its jurisdiction under Section 482 of the Code. Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceedings quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial. In the case of Devendra Pal Singh v. State of NCT of Delhi & Anr. , reported in 2003 (2) JIC 873 (SC) : (2002) 5 SCC 234, the Apex Court had considered in detail the ingredients of offence of conspiracy under Section 120-B I. P. C. The law is well-settled regarding interference by the High Court with an investigation of a case. In the case of State of Haryana v. Bhajan Lal, reported in 1990 (2) JIC 997 (SC) : 1992 SCC (Crl) 426, the Apex Court gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice, making it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised : (SCC pp. 378-79, para 102) "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 concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly a tended 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. "
(3.) THE Apex Court added a note of caution to the effect that the power of quashing a criminal proceeding should be exercised "very sparingly and with circumspection and that too in the rarest of rare cases. " In our opinion the case of the petitioners is not covered in any of the above categories. A perusal of the impugned First Information Report clearly discloses the commission of cognizable offences. The case of the appellant is not that the report is lodged on account of mala fide.;