Allahabad High Court - Lucknow Bench Judgement

Allahabad High Court - Lucknow Bench Judgement

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JUDGEMENT HEADLINE : Acts Of Omission And Commission;...to Observe Both Procedural And Substantive Fairness While Dealing With An Officer...No Individual Is Above The Law.
JUDGEMENT TITLE : Amitabh Thakur Vs. State Of U.P. Thru. Prin.Secy.,Vigilance Deptt. & Anr. On 09/30/2015 By Allahabad High Court - Lucknow Bench
CASE NO : MISC. BENCH NO. 9020 OF 2015
CORAM : Hon'ble Dhananjaya Yeshwant Chandrachud,Chief Justice And Hon'ble Shri Narayan Shukla,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Chief Justice's Court AFR

Case :- MISC. BENCH No. - 9020 Of 2015

Petitioner :- Amitabh Thakur, IPS
Respondent :- State Of U.P. Thru. Prin.Secy.,Vigilance Deptt. & Anr.
Counsel For Petitioner :- Amitabh Thakur (Inperson)
Counsel For Respondent :- C.S.C.

AND

Case :- MISC. BENCH No. - 9042 Of 2015

Petitioner :- Amitabh Thakur, IPS And Another
Respondent :- State Of U.P.Thru Prin.Secy.Home Deptt.U.P.Lucknow & Ors.
Counsel For Petitioner :- Amitabh Thakur [Inperson]
Counsel For Respondent :- C.S.C.

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Shri Narayan Shukla,J.

(Per : Dr D Y Chandrachud, CJ)

The Petitioner To The First Writ Petition Is A Member Of The Indian Police Service1 Presently Under Suspension. Together With His Spouse, Who Is A Social Activist, He Is A Petitioner In The Second Writ Petition2. In The First Writ Petition3, A Disclosure Has Been Sought Of The "exact Allegations" Against The Petitioner In A First Information Report4, Lodged Against The Petitioner Under Section 13(1)(e) Read With Section 13(2) Of The Prevention Of Corruption Act, 19885 At Gomti Nagar Police Station, Lucknow. The Petitioner Seeks A Disclosure Of (i) The Secret And/or Open Enquiry Report Conducted By The State Vigilance Establishment On The Basis Of Which The FIR Was Registered; (ii) A Copy Of The Report Of The Lokayukta Which Has Been Mentioned In The FIR And Of A Letter Of The District Magistrate; And (iii) Investigation Of The FIR In A Transparent And Unbiased Manner So As To Enable The Petitioner To Satisfactorily Account For His Assets.
During The Pendency Of The First Writ Petition, The Second Petition Was Filed In Which The Petitioners Seek A Mandamus Of This Court For The Appointment Of A Judicial Enquiry Committee Headed By A Sitting Or Retired Judge Of The Supreme Court Or Of This Court To Enquire Into The Entire Set Of Events, Facts And Incidents Narrated In The Writ Petition. Broadly Speaking, The Allegations Of The Petitioners Are That The State Has Embarked Upon A Consistent Course Of Conduct With A View To Harass A Member Of The IPS - Shri Amitabh Thakur - As A Reprisal For The Proceedings Which Have Been Instituted By His Spouse Who Is An Advocate And Social Activist On Important Issues Of Governance In The State. The First Of Those Proceedings Is Stated To Be A Public Interest Litigation6 In Which There Was A Prayer For An Inquiry By The Central Bureau Of Investigation7 Into The Work And Conduct Of An Official Alleged To Have Close Political Affiliations With Corridors Of Power In The State. The Second, It Is Alleged, Is A Complaint8 Which Was Filed By Smt Nutan Thakur Before The Lokayukta Of The State On 26 December 2014 Making Allegations Against Illegal Mining Operations And Procurement Of Huge Wealth By The Mining Minister Of The State, Shri Gayatri Prajapati. The Second Writ Petition Which Has Been Filed For Seeking An Order For A Judicial Inquiry By This Court Sets Out In Detail A Multiplicity Of Proceedings Instituted Allegedly By Or At The Behest Of The State Against Shri Amitabh Thakur.
Broadly Speaking, The Writ Petitions Advert To Four Sets Of Facts. For Ease Of Exposition During The Course Of The Hearing, The Learned Senior Counsel Appearing On Behalf Of The State Has Tendered A Status Summary Of The Proceedings. Since The Status Of Those Proceedings Is Not In Dispute, We Are Briefly Adverting To Them Hereinbelow:
1. (A). Smt Nutan Thakur Lodged An FIR On 20 June 2015 Against Various Persons Under Sections 467, 468, 471, 420, 203 And 120B Of The Penal Code Alleging That One Smt Pushpa Devi Was Making A False Allegation Of Rape Against Her Husband. Among The Persons Named Were Shri Ashok Pandey, Member Of The State Women's Commission, Smt Zarina Usmani, Chairman, State Women's Commission, Shri Gayatri Prajapati, Minister Of Mining, Smt Pushpa Devi And Her Husband And Three Other Persons, Smt Poonam, Shri Dharmendra Kumar And Shri Mahendra Kumar. The Final Report Has Not Been Submitted By The Police In The Aforesaid Case Before The Court Of The Judicial Magistrate. On 21 September 2015, Smt Nutan Thakur Moved An Application Together With A Prayer That The Police Report Be Filed Before The Court Of Chief Judicial Magistrate. The Case Has Now Been Fixed For 1 October 2015.
(B). Case Crime No. 484 Of 2015 Was Registered On 11 July 2015 At Police Station Gomti Nagar, Lucknow Under Sections 376, 504, 506 And 420 Of The Penal Code Read With Section 3(2)(5) Of The SC/ST Act On The Basis Of An Allegation Made By A Complainant By The Name Of Smt Pushpa Devi Against The Petitioner, Shri Amitabh Thakur. The Investigation Is Under Progress And Is Yet To Be Completed.
2. Shri Amitabh Thakur Has Alleged That On 10 July 2015, He Received A Telephonic Call From Shri Mulayam Singh Yadav And During The Course Of Conversation He Was Threatened For Having Been Taken Up A Complaint Against The Mining Minister. According To The Allegation, Shri Thakur Was Informed That A Fate Much Worse Than What Had Happened In Jasrana, Where He Was Criminally Assaulted By An MLA Belonging To The Samajwadi Party In 2004 When He Was Posted As Superintendent Of Police, Firozabad Would Come Upon Him. On 11 July 2015, Shri Thakur Presented An Application At Hazratganj Police Station For The Registration Of An FIR In Respect Of This Alleged Threat. After The SHO At Hazratganj Refused To Register The FIR, He Presented An Application Under Section 154(3) CrPC Before The Senior Superintendent Of Police, Lucknow On 23 July 2015 Which Was Refused. Eventually, A Complaint Was Filed Before The Chief Judicial Magistrate, Lucknow. On 14 September 2015, The Chief Judicial Magistrate, Lucknow Directed The Police Authorities To Register An FIR Against Shri Mulayam Singh Yadav. According To The Petitioner, No Action Has Been Taken By The Police Authorities Despite A Direction Of The Chief Judicial Magistrate.
3. (A). Shri Amitabh Thakur Was Placed Under Suspension On 13 July 2015 And Was Also Served With A Charge Sheet Containing Fifteen Charges. A Proceeding, Being O.A. No. 332 Of 2015, Has Been Instituted Before The Central Administrative Tribunal9, Lucknow Challenging The Appointment Of An Enquiry Officer. The Tribunal Has Declined To Grant Interim Relief On 30 July 2015 While Directing The Completion Of Pleadings.
(B). A Writ Petition10 Filed By Shri Amitabh Thakur Before This Court Against The Interim Order Of The Tribunal Dated 30 July 2015 Was Dismissed On 17 August 2015 By This Court.
(C). Shri Amitabh Thakur Has Filed O.A. No. 332/0367/2015 Before The Tribunal For Challenging One Of The Charges Levelled Against Him. The Proceeding Is Pending And Is To Be Listed On 16 November 2015.
4. (A) The Lokayukta Conducted An Investigation Against Shri Amitabh Thakur In Which A Report Was Submitted To The State Government On 24 August 2015. A Writ Petition11 Was Filed By Shri Amitabh Thakur In This Court In Respect Of The Investigation Which Was Being Made By The Lokayukta. The Writ Petition Has Been Dismissed As Infructuous.
(B) Shri Amitabh Thakur Filed A Writ Petition12 Before This Court For Summoning The Report Of The Lokayukta And For Setting Aside The Report Together With Other Allied Reliefs. On 31 August 2015, The Division Bench Called For The Filing Of Counter Affidavits In The Petition And Directed That The Proceedings Be Listed Thereafter.
(C) (i) On 9 December 2014, The State Vigilance Committee Chaired By The Chief Secretary Accepted The Recommendation Of The Home Department For A Vigilance Enquiry Against Shri Amitabh Thakur In Respect Of Disproportionate Assets. (The Case Of The State Is That The Proposal For Initiating A Vigilance Enquiry Relates Back To January 2012 When It Was Initiated By The Director General Of Police Following Which In April 2012, The Home Department, After Calling For An Explanation From Shri Thakur, Recommended A Vigilance Enquiry).
(ii) On 9 March 2015, A Confidential Enquiry For The Scrutiny Of The Assets Of Shri Thakur Was Directed Upon Which A Report Was Submitted On 22 July 2015. Following The Recommendations Therein, An Open Vigilance Enquiry Commenced On 9 July 2015 On Which A Report Was Submitted On 4 September 2015 To The State Government Recommending That An FIR Be Lodged Under Section 13(1) Of The Act.
(iii) On 16 September 2015, An FIR Has Been Lodged And Case Crime No. 746 Of 2015 Has Been Registered With The Police Station At Gomti Nagar, Lucknow Under Section 13(2) Read With Section 13(1)(e) Of The Act. The Investigation Is Under Progress.
There Are Two Broad Aspects Of The Matter. The First Aspect Relates To The Non-disclosure Of Information And Particulars To The Petitioner In Regard To The Allegation Of Disproportionate Assets. Shri Thakur Has Submitted That The Least That The Principles Of Fairness Would Require Is That He Should Be Apprised Of The Nature Of The Allegations Against Him And More Particularly Of The Assets Which Are Alleged To Be Disproportionate To His Known Sources Of Income.
During The Course Of The Hearing, It Appeared To The Court That There Was Prima Facie Substance In The Submission That Any Action Which Is Being Pursued Against The Petitioner, Who Is A Senior Member Of The IPS, Must Conform To Basic Norms Of Procedural Fairness So As To Enable Him To Adequately Defend Himself. This Disclosure Undoubtedly Has To Be Consistent With The Stage Of The Proceedings. The Court Is Conscious Of The Fact That It Would Not Be Appropriate And Proper At This Stage To Interdict The Course Of The Criminal Investigation.
The Learned Senior Counsel Appearing On Behalf Of The State Requested The Court To Allow Him An Adjournment To Seek Instructions On The Material Which Can Be Disclosed To The Petitioner At This Stage Having Due Regard To The Interest Of Fairness And To Enable Him To Fully Pursue His Rights And Remedies In Accordance With Law. Accordingly, During The Course Of The Hearing, The Following Material Has Been Supplied To The Petitioner:
(i) A List Of The Immovable Assets Compiled By The Vigilance Department On The Basis Of Which The FIR Has Been Lodged In The Case Of Disproportionate Assets;
(ii) A Copy Of The Report, Following The Investigation, Submitted By The Lokayukta; And
(iii) A Copy Of The First Information Report.
These Disclosures Would At The Present Stage Sufficiently Meet The Grievance Of The Petitioner In The First Writ Petition.
During The Course Of The Hearing Learned Senior Counsel Appearing On Behalf Of The State Has Apprised The Court Of His Instructions That If An FIR Has Yet Not Been Registered In Compliance With The Direction Issued By The Chief Judicial Magistrate, Lucknow On 14 September 2015, The FIR Shall Be Registered Forthwith.
The Next Aspect Of The Matter Relates To The Prayer For A Direction By The Court To Nominate A Former Judge Either Of The Supreme Court Or Of This Court For Conducting An Enquiry Into The Events, Facts And Incidents Which Have Been Narrated In The Writ Petition.
At The Outset, It Must Be Noted That The Petitioner (Shri Amitabh Thakur) While Appearing In Person Has Fairly Stated Before This Court That None Of The Issues Pertaining To The Legality Of The Proceedings Initiated By Or Against Him Are Challenged In The Writ Petition. In Other Words, The Petitioner Has Clarified That He Does Not Seek A Decision On The Merits Of The Various Proceedings Both Criminal And In Relation To The Conditions Of Service Initiated By Or Against Him.
In Our View, A Direction By This Court For The Formation Of A Judicial Enquiry Committee Into The Alleged Acts Of Omission And Commission On The Part Of The State Government May Be Premature At This Stage When The Basis Of Seeking Such Relief In The Present Proceedings Namely, The Legality Of The Action Initiated Is A Subject Matter Of Independent Proceedings. The Criminal Case Bearing Case Crime No. 484 Of 2015 Which Was Registered On 11 July 2015 Under Sections 376, 504, 506 And 420 Of The Penal Code Read With Section 3(2)(5) Of The SC/ST Act Is Still Under Investigation. Similarly The Proceeding Arising Out Of The FIR Which Was Lodged By Smt Nutan Thakur On 20 June 2015 Is The Subject Matter Of An Application Before The Chief Judicial Magistrate, Lucknow In Which It Has Been Prayed That A Police Report Be Filed Before The Court. In The Service Matter Pertaining To The Initiation Of Disciplinary Proceedings, The Tribunal Is Seized Of An Original Application Challenging The Appointment Of An Enquiry Officer As Well As Another Proceeding In Which One Of The Charges Has Been Impugned. The Enquiry Report By The Lokayukta Is Also The Subject Matter Of A Writ Petition Which Is Pending Before This Court In Which The Report Of The Lokayukta Has Been Challenged. In The Criminal Case Of Disproportionate Assets, The FIR Which Was Lodged On 16 September 2015 Is Under Investigation. The Petitioner Has Efficacious Remedies Open To Him In Respect Of Each Of These Proceedings Separately, In Context Of Which He Has Fairly Stated Before The Court That He Does Not Raise The Merits Of Those Issues Here. Any Direction By The Court For Allowing The Relief Which Has Been Sought In The Present Proceedings Would Require At Least A Prima Facie Evaluation Of The Legality Of The Action Which Has Been Pursued. Moreover, A Non Statutory Inquiry Of The Nature Sought Would Have No Jurisdiction Or Control Over The Powers That Are Exerciseable By The Competent Criminal Courts Which Are Seized Of The Proceedings Emanating From The Criminal Investigation.
Thus, Even On The Assumption That Such Kind Of Relief Would Be Permissible For The Court To Entertain Under Article 226 - An Issue Which Is Itself Not Free From Difficulty, We Are Of The View That Such Relief Cannot Be Entertained At This Stage. Nor For That Matter, Would A Judicial Inquiry Without A Statutory Authorization Subserve The Interest Of Justice Or The Need To Protect The Petitioner Against What He Perceives A Harassment By The State. The Petitioner Is At Liberty To Take Recourse To The Remedies Available In Law Against The Action Which Has Been Initiated.
While We Are Therefore Not Inclined To Grant The Relief As Claimed At This Stage For The Appointment Of A Judicial Inquiry Under Article 226, We Would Wish To Impress Upon The State The Need To Observe Both Procedural And Substantive Fairness While Dealing With An Officer Who Has Held A Responsible Position As A Member Of The IPS. Undoubtedly, The Law Must Take Its Own Course. No Individual Is Above The Law. That Includes Both The Officer Of The State Whose Conduct Is Under Scrutiny And The State Whose Actions Are Amenable To Judicial Review. The State Is Amenable To The Scrutiny Of Its Actions By The Court. The Court Would Not Be Powerless To Intervene If Material Comes Before The Court To Indicate Unfair Treatment Of An Officer Of The Central Services. At The Present Stage, We Clarify That We Are Not Making Any Observation Or Findings Since The Proceedings Which Have Been Initiated Are At A Preliminary Stage Where The Petitioner Is Still To Avail Of His Rights And Remedies In Accordance With Law.
The Petitioners Have Moved These Proceedings In Anguish, Seeking The Protection Of The Court To Ensure Fair Treatment, Apprehending That The Multiplicity Of Proceedings To Which They Have Been Subject Is A Reprisal For Having Raised Issues Of Governance In The Public Realm. As We Have Said Earlier, The Law Must Run Its Course. No One Is Above The Law. But Democracy And Dissent Are Not Incompatible Partners. One Survives Because Of The Other. Nothing Should Be Done To Create An Apprehension That The Might Of The State Is Being Utilized To Stifle Criticism And Silence Voices Of Dissent. The Rule Of Law Protects The Right Of The Citizen To Raise Questions Even If They Are A Source Of Discomfort.
We Expect That Norms Of Fairness And Proper Procedure Be Observed In The Present Case And Rest The Issue There. The Disposal Of These Proceedings Will Not Prevent The Petitioner From Moving This Court Afresh At The Appropriate Stage For Protection Of His Fundamental And Legal Rights, Should It Become Necessary To Do So.
Both The Writ Petitions Shall, Accordingly, Stand Disposed Of. There Shall Be No Order As To Costs.

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