Courts Update Allahabad High Court refuses to quash FIR against former...

Allahabad High Court refuses to quash FIR against former BSP minister in Rs 1400-crore memorial scam

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Allahabad Sept 1(ILNS): The Lucknow Bench of the Allahabad High Court on August  27, refused to quash the FIR lodged against Babu Singh Kushwaha, who was a cabinet minister in the BSP government, in the memorial scam of fourteen hundred crores.

The Division Bench comprising of Justice Saroj Yadav and Justice Ramesh Sinha passed this order while hearing a Petition filed by Babu Singh Kushwaha.

The writ petition has been filed by the petitioner Babu Singh Kushwaha with a prayer to issue a writ of certiorari to quash the FIR bearing Case under Sections 409, 120-B I.P.C. and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, registered at Police Station Gomti Nagar, District Lucknow. He further prayed to issue a writ in the nature of mandamus directing the respondents to not to arrest him in the case in pursuance of the FIR.

It has been argued by Counsel for the Petitioner that for the last seven years the investigating agency could not find any evidence against his client.

Counsel for the Petitioner submitted that the allegation made in the FIR with regard to the construction of monuments was controlled by the Ministry of Public Works Department and Petitioner had no concern with the said work as allocation of said Ministry had never been given to him.

He further submitted that petitioner was not the beneficiary as no financial transaction was ever made at his end or through any of his officials posted in his Ministry. The petitioner had no direct or indirect connection with the Public Works Department.

He also submitted that co-accused Panna Lal Yadav had earlier challenged the FIR before the Court by way of filing a Writ Petition in which interim order had been granted in his favor through an order dated July 31, 2020, hence the petitioner is also entitled to the same relief.

He further argued that the FIR has been lodged against him just for harassment with oblique motive. The entire allegations leveled against the petitioner are absolutely false, frivolous, and baseless, hence, the said FIR is liable to be quashed.

Additional Government Advocate for the State opposed the prayer of the Petitioner for quashing the FIR and also staying his arrest, and argued that from the perusal of the FIR, prima facie, it cannot be said that no cognizable offense is made out, hence, no ground exists for quashing the FIR or staying the arrest of the Petitioner.

The AGA argued that as far as the claim made by the petitioner that benefit of interim orders has been granted to the co accused by a Co-ordinate Bench by orders issued on March 06, 2020, and July 31, 2020 respectively, as the writ petition is being argued finally by the parties, therefore, aforesaid interim orders passed by a Coordinate Bench cannot be granted to the petitioner.

The Court noted that, Before proceeding further on the merit of the case, we deem it appropriate to first adjudicate the submission of the counsel for the petitioner that the petitioner is entitled to get the benefit of the interim orders dated March 06, 2020, and July 31, 2020.

It transpires from the interim order dated March 06, 2020, that the same is not a speaking order, whereas interim order dated July 31, 2020, has been passed by giving parity of the interim order dated March 06, 2020, and that too also not a speaking order.

The Court observed that it is settled law that the interim orders/directions are issued on the basis of prima facie finding and makes temporary arrangements to preserve the status quo to ensure that the matter does not either become infructuous or a fait accompli before the final hearing and this view has again been reiterated by the Supreme Court in several cases, the court held.

The legal position on the issue of quashing of FIR or criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. The Courts should not ordinarily interfere with the investigations of cognizable offenses.

However, where the allegations made in the FIR or the complaint even if taken at their face value and accepted in their entirety do not prima facie constitute any offense or make out a case against the accused, the FIR or the charge-sheet may be quashed in exercise of powers under Article 226 of inherent powers under Section 482 of the Cr.P.C.

The Court found that in the case, it transpires from the F.I.R. that it has been lodged on the basis of an inquiry report of Lokayukta in regard to corruption and irregularities committed during the period 2007 to 2011 for the supply of sandstone. It also transpires that there is embezzlement of Government exchequer of Rs.14,10,50,63,200/- and in the said loss of Government exchequer, besides former ministers, officer(s) of the State, Firms related to construction work and persons are responsible as with their connivance, the said amount has been embezzled.

The Court said that the Petitioner is the holder of mining lease in District Mirzapur, therefore, it cannot be said that the petitioner is not involved in the case as it is a categorical averment in the F.I.R. that in the embezzlement of Government exchequer, apart from former ministers, Government officials and officer of Nirman Agency, the firm related to construction work and persons are also responsible as the said embezzlement have been made with their connivance.

The Court further said that it is well settled that the Court has to eschew itself from embarking upon a roving inquiry into the last details of the case. It is also not advisable to judge whether the case shall ultimately end in the submission of a charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offense is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of an investigation into the alleged offense is an independent area of operation and does not call for interference in the same except in rarest of rare cases.

“Keeping in view the aforesaid law and considering the submissions raised by Counsel for the Petitioner, we are of the considered view that the submissions advanced by the Counsel for the petitioner call for determination on questions of fact which may be adequately discerned either through proper investigation or which may be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial Court in case a charge sheet is submitted in this case. The perusal of the record makes out, prima facie, offenses at this stage and there appears to be sufficient ground for investigation in the case.

Considering the allegations made in the FIR and material brought on record, it cannot be said that no prima facie case is made out against the petitioner, rather there appears to be sufficient ground for investigation in the matter. Accordingly, we do not find any justification to quash the F.I.R.”, the Court observed.

At this stage, Counsel for the Petitioner submitted that though the FIR has been lodged in the year 2014, till date the investigation of the case has not been concluded by the investigating officer, hence he prays that the investigation of the FIR may be concluded expediently.

“Considering the aforesaid facts and circumstances of the case, we direct the Investigating Officer to conclude the investigation of the present case and file a police report before the court concerned, in accordance with the law, expeditiously preferably within a period of four weeks from the date of production of a certified copy of the order”, the Court ordered and disposed of the Petition./ILNS/AP/SNG

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