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

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

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The Allahabad High Court refused to quash an FIR lodged against Babu Singh Kushwaha, who was a cabinet minister in the BSP government, in the memorial scam of Rs 1400 crore.

The Lucknow Division Bench of Justices Saroj Yadav and Ramesh Sinha passed this order on August  27, while hearing a writ petition filed by Kushwaha, praying to issue a writ of certiorari to quash the FIR registered under Sections 409, 120-B IPC and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act at Police Station Gomti Nagar, District Lucknow with a further prayer to issue a writ in the nature of mandamus, directing the respondents not to arrest the petitioner in pursuance of the FIR.

It has been argued by the Counsel for the petitioner that for the past seven years, the investigating agency could not find any evidence against the petitioner.

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

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

Khushwaha said co-accused Panna Lal Yadav had earlier challenged the FIR before the Court by way of a Writ Petition, in which the interim order had been granted in his favour on July 31, 2020, hence the petitioner is also entitled for the same relief.

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

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The Additional Government Advocate for the State opposed the prayer for quashing of FIR and also staying the arrest of the petitioner and argued that from the perusal of the FIR, prima facie, it cannot be said that no cognisable offence is made out, hence, no ground exists for quashing the F.I.R. or staying the arrest of the petitioner.

So far as the claim of the petitioner for giving the benefit of interim orders as has been granted by a Co-ordinate Bench of the Court on March 6, 2020 and July 31, 2020 passed in writ petition, respectively, it has been argued by the AGA that the writ petition is being argued finally by the parties, therefore, the interim orders passed by a Coordinate Bench of the Court cannot be granted to the petitioner.

Before proceeding further on merit of the case, we deem it appropriate to first adjudicate the submission of the counsel for petitioner that the petitioner is entitled to get the benefit of the interim orders dated March 6, 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 held, “It is settled law that the interim orders/directions are issued on the basis of prima facie finding and makes temporary arrangements to preserve status quo to ensure that the matter does not either become infructuous or a fait accompli before final hearing and this view has again been reiterated by the Supreme Court in the case of State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha.

“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 offences.

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 offence or make out a case against the accused, the FIR or the charge-sheet may be quashed in exercise of powers under Article 226 or inherent powers under Section 482 of CrPC,” it added.

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The Court found that in the case, it transpires from the FIR that it has been lodged on the basis of an inquiry report of Lok Ayukta in regard to corruption and irregularities committed during the period 2007 to 2011 for 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 the petitioner is the holder of mining lease in District Mirzapur, therefore, prima facie, 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 enquiry into the last details of the case. It is also not advisable to judge whether the case shall ultimately end in 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 offence is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence 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, offences at this stage and there appears to be sufficient ground for investigation in the case.

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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, but 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 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.

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