The Lucknow Bench of the Allahabad High Court has dismissed a petition seeking quashing of the FIR registered against Kanpur University Vice Chancellor Professor Vinay Pathak in a corruption case and seeking a stay on his arrest.
The Division Bench of Justice Rajesh Singh Chauhan and Justice Vivek Kumar Singh passed this order while hearing a Petition filed by Vinay Pathak.
By means of the petition, the petitioner has prayed following main reliefs:-
“(i) to issue a writ, order, or direction in the nature of Certiorari quashing the impugned first information report, registered against the Petitioner by Respondent no 5, as FIR/ Case under section 342, 386, 504 and 506 IPC, and 7 of Prevention of Corruption Act, 1988 at Police Station- Indira Nagar, District- Lucknow on 29.10.2022, contained in Annexure no 1 to the writ petition;
(ii) to issue a writ, order, or direction in the nature of Mandamus, commanding the Respondents not to proceed, prosecute, or arrest the Petitioner on the basis of the impugned FIR registered against the Petitioner by Respondent no 5 as FIR/ Case under section 342, 386, 504 and 506 IPC, and 7 of Prevention of Corruption Act, 1988 at Police Station- Indira Nagar, District- Lucknow on 29.10.2022, contained in Annexure no 1 to the writ petition; in the alternative at least without complying with the mandatory statutory provision as contained under Section 17-A of the Prevention of Corruption Act or till the submission of charge-sheet, whichever is later”.
The Court observed that the main contention to assail the FIR are two fold. Firstly, no specific allegation against the petitioner has been levelled to constitute, prima facie, offence under Section 386 IPC. Even otherwise, no offence as alleged in the FIR is, prima facie, made out against the petitioner.
If the allegation regarding extortion of money is taken on its face value, as per the allegation of the FIR, in that case too, at the best offence under Section 384 IPC may be attracted, however, the petitioner is denying the aforesaid allegation, but in that case, the punishment under those sections would be below seven years and the investigation may be conducted as per the directions and guidelines of the Apex Court in re; Arnesh Kumar v State of Bihar, (2014) 8 SCC 273, by giving prior notice under Section 41-A CrPC.
Secondly, no FIR against the petitioner can be lodged in view of the bar of Section 17-A of the Prevention of Corruption Act, 1988.
L.P. Misra Counsel for the petitioner submitted that since the FIR has been lodged under Section 7 of P.C Act besides other sections of IPC, therefore, compliance of Section 17-A of P.C Act would be mandatory.
Counsel further submitted that unless and until the previous approval from competent authority is received to make investigation against the petitioner in view of Section 17-A of P.C Act, the police authorities may be restrained to conduct investigation against the petitioner pursuant to the impugned FIR and the operation and implementation of the FIR may be stayed so far as the petitioner is concerned.
L.P Misra also submitted that for the alleged incident of the month of February, 2022, thereafter of the month of April, 2022, the FIR has been lodged on 29.10.2022.
In the said FIR, no specific date of incident has been indicated for the allegation relating to the month of February, 2022.
Further, the allegations so levelled in the FIR are highly improbable in as much as when the complainant was allegedly instructed to deposit a sum of Rs 63 lakh in one International Business Firm account at Alwar, Rajasthan, as to why he had deposited a sum of more than Rs 74 lakh approx.
Misra has also vehemently submitted that during investigation the investigating agency has added Sections 409, 420, 467, 468, 471 & 120-B of IPC, besides earlier Sections 342, 386, 504, 506 IPC and Section 7 of the P.C Act to subvert the procedure established by the law, however, ingredients of all aforesaid sections do not attract in the FIR, therefore, the FIR may be quashed both on merits as well as the same is violative of Section 17-A of the P.C Act.
I.B Singh, Senior Advocate, appearing for opposite party no 5 has submitted that the allegations so levelled against the petitioner in the FIR disclose commission of cognizable offence, therefore, the FIR in question may not be quashed. Since the FIR may not be quashed, therefore, no interim protection can be granted to the petitioner. Further, there is a statutory prescription under Section 438 CrPC to file anticipatory bail application, therefore, extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India may not be invoked.
Therefore, on the basis of aforesaid judgment, I.B Singh has submitted that the argument of Misra regarding 17-A of the P.C Act Act may not be applicable in the case.
Jaideep Narain Mathur, Senior Advocate, appearing on behalf of the State-respondents has submitted that bare perusal of the allegations of the FIR clearly reveals that the petitioner has committed offence under Sections 342, 386, 504 & 506 IPC as well as Section 7 of the P.C Act.
Mathur has further submitted that the instant FIR consists of three incidents. First incident is relating to the month of February, 2022 when the petitioner compelled the informant to provide 15% commission for the payments of work done by his Company, thereby providing the mobile number of the co-accused Ajay Mishra. The informant under compelling circumstances paid 15% commission to the petitioner through co-accused Ajay Mishra.
Second incident is relating to the month of April, 2022 when the informant has been forced to pay 15% commission of his remaining payment and he paid such commission through cash and through e banking in the account of one International Business Firm at Alwar, Rajasthan.
Third incident is dated 01.09.2022 when the complainant/ informant paid commission to the tune of Rs15,55,000/- to the petitioner through co-accused Ajay Mishra regarding his another payment for the work done by his Company. The informant has indicated not only the dates of such payments but also indicated the amount which is Rs 1,41,00,000/- in all the aforesaid incidents.
Mathur has also submitted that when advance commission was demanded from the informant and he could not pay the same, the work assigned to his Company has been stopped by the petitioner and given to the Company of co-accused Ajay Mishra, as has been clearly indicated in the FIR.
‘Prima facie, the allegations of the FIR and material and evidences, which are said to have been gathered during investigation as per prosecution, constitute the cognizable offences, therefore, such FIR may not be quashed, hence no interim order can be granted in a petition under Article 226 of the Constitution of India.
At the same time, it is also undisputed that provision of Section 438 CrPC is in existence in the State of U.P, so if the allegation of the counsel for the petitioner is considered to the effect that the impugned FIR has been lodged without having any cogent and relevant material with the prosecution to tarnish the reputation of the petitioner, who is discharging the functions of Vice Chancellor of one University and has been Vice Chancellor of various Universities since 2009, the appropriate remedy would be to file an appropriate application for anticipatory bail under Section 438 CrPC instead of filing writ petition under Article 226 of the Constitution of India inasmuch as the alternative statutory remedy may not ordinarily be circumvented unless there is any exceptional circumstances to interfere in such FIR.
Therefore, in view of the above, considering the dictum of the Apex Court in re; M/s Neeharika Infrastructure Pvt Ltd (supra), we are not inclined to quash the impugned FIR; so, we cannot pass any interim order in the case.
So far as arguments of Misra regarding conducting preliminary inquiry prior to lodging the FIR in view of the dictum of the Apex Court in re; Lalita Kumari (supra) is concerned, we are of the considered opinion that in para 120.5, the Apex Court has clearly opined that the preliminary inquiry would only be required only to ascertain whether the information reveals any cognizable offence’, the Court observed while dismissing the petition.