Full Judgment Text
1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3581 OF 2015
[Arising out of Special Leave Petition
(Civil) No.13697 of 2012]
RANG NATH MISHRA ...APPELLANT
VERSUS
STATE OF UTTAR PRADESH
& ORS. ...RESPONDENTS
JUDGMENT
RANJAN GOGOI, J.
JUDGMENT
1. Leave granted.
2. The challenge in this appeal is to
th
the order dated 11 November, 2011 passed
by the High Court of Judicature at
Allahabad in Writ-C No.62471 of 2011 by
which the writ petition filed by the
appellant has been dismissed.
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3. The challenge in the writ
petition, inter alia , was against the
th
report dated 4 October, 2011 of the
Lokayukta, U.P. containing the following
recommendations:
“(1) The Charged Public Servant,
Minister of Secondary
Education, Shri Ranga Nath
Mishra, as the sources of
income of the properties
earned by him from 2007
onwards are not known,
therefore, for prosecution
under section 13(1)(e) of
the Prevention of
Corruption Act, 1988,
criminal investigation be
got done by an independent
agency like C.B.C.I.D. or
Uttar Pradesh Vigilance
Commission, and his
prosecution be considered
to be initiated.
JUDGMENT
(2) On the basis of the illegal
possession of the Gram
Sabha land of Gat No.666
Mi/O.106 Hect. in Village
Aurai, Bhadohi, District
Sant Ravi Das Nagar, the
proceedings be initiated
against the charged Public
Servant Shri Ranga Nath
Mishra, under Section 122
of the Abolition of
Zamindari Act, and the
concerned Dy. District
Collector should register
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the case and the aforesaid
land of the Gram Sabha be
ordered to be released from
his possession.
(3) During the aforesaid
criminal proceedings and
release of the land from
his possession, for taking
independent action as per
the Investigation Unit and
as per the rules of the
competent authority, the
Charged Public Servant,
Minister of Secondary
Education, be removed from
the portfolio of the
Minister so that the
aforesaid legal proceedings
could be carried out
independently.
(4) The Criminal Investigation
be done through such an
agency which can also
investigate into the
investments of such
properties made in the
State and outside the
State.
JUDGMENT
(5) The compliance report in
respect of the aforesaid
recommendations be made
available within a month.”
4. As the aforesaid recommendations
of the Lokayukta, U.P. have been
implemented and necessary action in terms
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thereof has been taken, the relief prayed
for in this appeal has been truncated to a
declaration that the aforesaid report
th
dated 4 October, 2011 of the Lokayukta,
U.P. is contrary to the mandatory
procedure prescribed under the U.P.
Lokayukta & Up-Lokayuktas Act, 1975 (for
the sake of convenience hereinafter
referred to as “the Act”) and that the
said report suffers from vice of non-
application of mind.
5. The brief facts antecedent to the
th
report dated 4 October, 2011 of the
Lokayukta, U.P. may now be conveniently
JUDGMENT
taken note of at the outset.
It appears that the respondent
No.4 in the present appeal, Swami Nath
Misra, had submitted an undated complaint
to the Hon'ble President of India, Prime
Minister of India, Governor of U.P.,
Lucknow and Chairman, Central Board of
Direct Taxes, Income Tax Department, New
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Delhi demanding an enquiry in to the
alleged acquisition of huge assets by the
appellant who was then serving as a
Cabinet Minister in the State of Uttar
Pradesh. The said complaint was
th
reiterated by a reminder dated 27 August,
2010 which was, inter alia , addressed to
the Lokayukta, U.P. A communication dated
th
18 October, 2010 was addressed to the
appellant by the Secretary of the
Lokayukta, U.P. intimating him that the
Lokayukta, U.P. has decided to hold a
preliminary enquiry into the complaint, a
copy of which was forwarded to the
th
appellant. The said letter dated 18
JUDGMENT
October, 2010 was followed by another
th
letter dated 18 November, 2010. It
nd
appears that the 2 communication
th
(reminder) dated 27 August, 2010 sent by
the complainant, inter alia , to the
Lokayukta, U.P. was not accompanied by an
affidavit of the complainant which
nd
apparently was filed later i.e. on 22
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December, 2010. This was done apparently
when the appellant had demanded that a
copy of such affidavit be made available
th
to him. Thereafter, a letter dated 14
February, 2011 was sent by the office of
the Lokayukta, U.P. to the appellant
intimating him that the complaint filed
against the appellant has been accepted
for investigation. The appellant raised an
th
objection dated 10 April, 2011 with
regard to the maintainability of the
complaint on the ground of its improper
presentation and also on the ground that
the complaint was not supported by an
affidavit of the complainant, as required.
JUDGMENT
No specific order was passed on the said
objection raised by the appellant.
Instead, correspondences were exchanged by
and between the office of the Lokayukta,
U.P. and the appellant seeking and
submitting the replies of the appellant
and the documents in support of the stand
taken by the appellant in the said
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th
replies. Eventually, the report dated 4
October, 2011 was submitted, the contents
of which have already been noted. It is
the legality and the legitimacy of the
said report rendered in the aforesaid
circumstances that was challenged before
the High Court resulting in the decision
th
dated 11 November, 2011 which has been
impugned in the present appeal before us.
6. The facts and events that have
occurred after submission of the report
th
dated 4 October, 2011 of the Lokayukta,
U.P. may now be taken note of.
On the basis of the said report of
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the Lokayukta, U.P. the then Chief
Minister of the State of Uttar Pradesh had
dropped the appellant from the Council of
th
Ministers on the very next day i.e. 5
October, 2011. Thereafter, an Open
Vigilance Enquiry against the appellant
was ordered and on the basis of the report
of the said enquiry a decision was taken
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that a criminal case under the Prevention
of Corruption Act, 1988 be instituted
against the appellant by the Vigilance
Department of the State. Accordingly, a
FIR was filed against the appellant which
was duly investigated and charge-sheet
th
dated 30 July, 2013 was filed in the
court of competent jurisdiction.
Cognizance of the offences alleged was
th
taken and subsequently on 19 August, 2013
charges have been framed against the
appellant in the Court of the learned
Special Judge (Prevention of Corruption
Act), Varanasi under Sections 13(1)(e) and
13(2) of the Prevention of Corruption Act,
JUDGMENT
1988. The appellant is presently facing
trial in the said case.
7. Insofar as the recommendations of
the Lokayukta, U.P. with regard to the
Gram Sabha land allegedly in the
possession of the appellant is concerned,
the enquiries held had exonerated the
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appellant.
8. We have heard Dr. Rajeev Dhawan,
learned Senior Counsel appearing for the
appellant and Mr. Ravi Prakash Mehrotra,
learned counsel for the State of Uttar
Pradesh. We have also considered the
written arguments submitted for and on
behalf of the parties.
9. The challenge made by the
appellant primarily revolves around the
maintainability of the complaint filed by
th
the 4 respondent and the legality and
legitimacy of the procedure adopted by the
Lokayukta, U.P. in making the
JUDGMENT
recommendations set out in the report
th
dated 4 October, 2011.
10. To appreciate the arguments
advanced by the rival parties it will be
necessary to take note of the relevant
provisions of the Act which are extracted
below:
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“7. Matters which may be
investigated by Lokayukta or Up-
Lokayukta.- (1) Subject to the
provisions of this Act and on a
complaint involving a grievance
or an allegation being made in
that behalf the Lokayukta may
investigate any action which is
taken by, or with the general or
specific approval of -
(i) a Minister or a Secretary;
and
(ii) any public servant referred
to in sub-clause (ii) or sub-
clause (iv) of clause (j) of
section 2; or
(iii) any other public servant
being a public servant of a
class or sub-class of public
servants notified by the State
Government in consultation with
the Lokayukta, in this behalf.
(2)Subject to the provisions of
this Act and on a complaint
involving a grievance or an
allegation being made in that
behalf, an Up-Lokayukta may
investigate any action which is
taken by or with the general or
specific approval of any public
servant not being a Minister,
Secretary or other public
servant referred to in sub-
section (1).
JUDGMENT
(3) Notwithstanding anything
contained in sub-section (2),
the Lokayukta may, for reasons
to be recorded in writing,
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investigate any action which may
be investigated by an Up-
Lokayukta under that sub-
section.
(4) Where two or more Up-
Lokayuktas are appointed under
this Act, the Lokayukta may, by
general or special order, assign
to each of them, matters which
may be investigated by them
under this Act:
Provided that no investigation
made by an Up-Lokayukta under
this Act, and no action taken or
thing done by him in respect of
such investigation shall be open
to question on the ground only
that such investigation related
to a matter which is not
assigned to him by such order.
8. Matters not subject to
investigation.- (1) Except as
hereinafter provided, the
Lokayukta or an Up-Lokayukta
shall not conduct any
investigation under this Act-
JUDGMENT
(a) except on a complaint made
under and in accordance with
section 9; or
(b) in the case of a complaint
involving a grievance in respect
of any action,-
(i) if such action relates to
any matter specified in the
Third Schedule; or
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(ii) if the complainant has or
had any remedy by way of
proceeding before any Tribunal
or Court of law:
Provided that nothing in sub-
clause (ii) shall prevent the
Lokayukta or an Up-Lokayukta
from conducting an investigation
if he is satisfied that such
person could not or cannot, for
sufficient cause, have recourse
to a remedy referred to in that
sub-clause.
(2) The Lokayukta or an Up-
Lokayukta shall not investigate
any action,-
(a) in respect of which a formal
and public inquiry has been
ordered under the Public
Servants (Inquiries) Act, 1850
(Central Act 37 of 1850), by the
Government of India or by the
State Government; or
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(b) in respect of a matter which
has been referred for inquiry
under the Commissions of Inquiry
Act, 1952 (Central Act 60 of
1952), by the Government of
India or by the State
Government.
(3) The Lokayukta or an Up-
Lokayukta shall not investigate
any complaint which is excluded
from his jurisdiction by virtue
of a notification issued under
section 19.
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(4) The Lokayukta or an Up-
Lokayukta shall not
investigate,-
(a) any complaint involving a
grievance, if the complaint is
made after the expiry of twelve
months from the date on which
the action complained against
becomes known to the
complainant;
(b) any complaint involving an
allegation, if the complaint is
made after the expiry of five
years from the date on which the
action complained against is
alleged to have taken place:
Provided that the Lokayukta or
an Up-Lokayukta may entertain a
complaint referred to in clause
(a), if the complainant
satisfies him that he had
sufficient cause for not making
the complaint within the period
specified in that clause.
JUDGMENT
(5) In the case of any complaint
involving a grievance, nothing
in this Act shall be construed
as empowering the Lokayukta or
an Up-Lokayukta to question any
administrative action involving
the exercise of a discretion
except where he is satisfied
that the elements involved in
the exercise of the discretion
are absent to such an extent
that the discretion cannot be
regarded as having been properly
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exercised.
(6) The Lokayukta or an Up-
Lokayukta shall not investigate
any complaint involving a
grievance against a public
servant referred to in sub-
clause (iv) or sub-clause (v) of
clause (j) of section 2.
9. Provisions relating to
complaints-
(1) Subject to the provisions of
this Act, a complaint may be
made under this Act to the
Lokayukta or an Up-Lokayukta-
(a) in the case of a grievance,
by the person aggrieved;
(b) in the case of an
allegation, by any person other
than a sitting public servant:
Provided that, where the person
aggrieved is dead or is for any
reason unable to act for
himself, the complaint may be
made by any person who in law
represents his estate or, as the
case may be, by any person who
is authorized by him in this
behalf.
JUDGMENT
Provided further that in the
case of a grievance involving a
complaint referred to in sub-
clause (ii) of clause (d) of
section 2, the complaint may be
made also by an organization
recognized in that behalf by the
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State Government.
(2) Every complaint shall be
accompanied by the complainant's
own affidavit in support thereof
and also affidavits of all
persons from whom he claims to
have received information of
facts relating to the
accusation, verified before a
notary together with all
documents in his possession or
power pertaining to the
accusation and a sum of Two
thousand rupees shall be paid as
security along with the
complaint, in respect to
complaint involving allegatio,
filed under the Uttar Pradesh
Lokayukta and Up-Lokayuktas
(Complaint) Rules, 1977.
(3) Every complaint and
affidavit under this section as
well as any schedule or annexure
thereto shall be verified in the
manner laid down in the Code of
Civil Procedure, 1908, for the
verification of pleadings and
affidavits respectively.
JUDGMENT
(4) Not less than three copies
of the complaint as well as of
each of its annexures shall be
submitted by the complainant.
(5) A complaint which does not
comply with any of the foregoing
provisions shall not be
entertained.
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(6) Notwithstanding anything,
contained in sub-sections (1) to
(5), or in any other enactment,
any letter written to the
Lokayukta or Up-Lokayukta by a
person in police custody, or in
gaol or in any asylum or other
place for insane persons, shall
be forwarded to the addressee
unopened and without delay by
the police officer or other
persons in charge of such gaol,
asylum, or other place, and the
Lokayukta or Up-Lokayukta, as
the case may be, may entertain
it and treat it as a complaint,
but no action in respect of such
complaint shall be taken unless
it is accompanied or
subsequently supported by an
affidavit under sub-section (2).
10. Procedure in respect of
investigations.-(1) Whether the
Lokayukta or an Up-Lokayukta
proposes (after making such
preliminary inquiry, if any, as
he deems fit) to conduct any
investigation under this Act,
he-
JUDGMENT
(a) shall forward a copy of the
complaint to the public servant
concerned and the competent
authority concerned;
(b) shall afford to the public
servant concerned an opportunity
to offer his comments on such
complaints; and
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(c) may make such orders as to
the safe custody of documents
relevant to the investigation,
as he deems fit.
(2) Every such investigation
shall be conducted in private,
and in particular, the identity
of the complainant and of the
public servant affected by the
investigation shall not be
disclosed to the public or the
press whether before, during or
after the investigation:
Provided that, the Lokayukta or
an Up-Lokayukta may conduct any
investigation relating to a
matter of definite public
importance in public, if he, for
reasons to be recorded in
writing, thinks fit to do so.
(3) Save as aforesaid, the
procedure for conducting any
such investigation shall be such
as the Lokayukta or, as the case
may be, the Up-Lokayukta
considers appropriate in the
circumstances of the case.
JUDGMENT
(4) The Lokayukta or an Up-
Lokayukta may, in his
discretion, refuse to
investigate or cease to
investigate any complaint
involving a grievance or, an
allegation, if in his opinion-
(a) the complaint is frivolous
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or vexatious, or is not made in
good faith; or
(b) there are no sufficient
grounds for investigating or, as
the case may be, for continuing
the investigation; or
(c) other remedies are available
to the complainant and in the
circumstances of the case it
would be more proper for the
complainant to avail of such
remedies.
(5) In any case where the
Lokayukta or an Up-Lokayukta
decides not to entertain a
complaint or to discontinue any
investigation in respect of a
complaint or to discontinue any
investigation in respect of a
complaint, he shall record his
reasons therefor and communicate
the same to the complainant and
the public servant concerned.
JUDGMENT
(6) The conduct of an
investigation under this Act in
respect of any action shall not
affect such action, or any power
or duty of any public servant to
take further action with respect
to any matter subject to the
investigation.
THE THIRD SCHEDULE
[ See SECTION 8 (1) (b) (i) ]
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(a) Action taken for the purpose
of investigating crime or
protecting the security of the
Sate.
(b) Action taken in the exercise
of powers in relation to
determining whether a matter
shall go to, or shall continue
to be prosecuted in a court or
not.
(c) Action taken in matters
which arise out of the terms of
a contract governing purely
commercial relations of the
administration of the Government
or of the local authority or
other corporation, company or
society, as the case may be,
with customers or suppliers
except where the complainant
alleges harassment or gross
delay in meeting contractual
obligations.
(d) Action taken in respect of
appointments other than an
appointment referred to in
clause (ii) of clause (d) of
section 2, removals, pay,
discipline, superannuation or
other matters relating to
conditions of service of public
servants but not including
action relating to claims, for
pension, gratuity, provident
fund or to any claims which
arise on retirement, removal or
termination of service.
JUDGMENT
(e) Grant of honours and
awards.”
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11. Dr. Rajeev Dhawan, learned Senior
Counsel appearing for the appellant has
very strenuously urged that the
investigation/enquiry undertaken by the
Lokayukta, U.P. in the present case being
in respect of a matter covered by the
Third Schedule is barred under the
provisions of Section 8(1)(b)(i) of the
Act read with the Third Schedule. It is
further argued that there was no complaint
to the Lokayukta, U.P. as mandatorily
required under Section 9 and assuming that
th
the reminder dated 27 August, 2010 can be
treated as a complaint it was not
JUDGMENT
supported by an affidavit of the
complainant. Dr. Dhawan has further argued
that under Rule 5 of the Uttar Pradesh
Lokayukta and Up-Lokayukta Complaint
Rules, 1977 (hereinafter referred to as
“the Rules”) framed under the Act, a
complainant can be granted an opportunity
to make up the deficiencies in the
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complaint within a fixed period. The
provisions of the said Rules, however,
cannot override the requirement of filing
an affidavit which is mandated by Section
9(2) of the Act. Alternatively, it is
urged that even if the said deficiency
i.e. absence of the affidavit of the
complainant can be cured what had happened
in the present case is that the said
affidavit of the complainant was filed on
nd
22 December, 2010 whereas notice of
preliminary enquiry was issued to the
th
appellant on 18 October, 2010. Dr.
Dhawan has further argued that in the
present case no preliminary enquiry was
JUDGMENT
held inasmuch as no decision on such
preliminary enquiry was communicated to
the appellant as required under the Act.
Furthermore, it is urged that the
Lokayukta, U.P. in the present case had
acted in undue haste inasmuch as though
th
the appellant on 29 September, 2011 had
prayed for 15 days' time to furnish the
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requisite documents, the report was
th
published on 4 October, 2011 without
reference to and due consideration of the
request made by the appellant. Lastly, it
is urged that there was no investigation
in the case as mandated by the Act and no
opportunity of personal hearing was
afforded to the appellant.
12. Controverting the aforesaid
submissions made on behalf of the
appellant, Shri Ravi Prakash Mehrotra,
learned counsel for the State of Uttar
Pradesh has urged that the objections
raised by the appellant before this Court
JUDGMENT
are mere reiterations of what has been
urged before the High Court. All such
pleas were adequately considered by the
th
High Court in the impugned order dated 11
November, 2011 and there is no basis to
reopen the said findings and conclusions
of the High Court. Pointing out the
provisions of Section 10(3) of the Act,
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Shri Mehrotra has urged that the procedure
for conducting a proceeding under the Act
would be as may be considered appropriate
by the Lokayukta in the facts of any given
case. Shri Mehrotra has further urged
that in the present case on receipt of the
report of the Lokayukta necessary action
has been taken and presently a criminal
trial is pending against the appellant.
There will, therefore, be no basis for
this Court to interdict the report of the
Lokayukta.
13. We have considered the submissions
made on behalf of the parties.
JUDGMENT
th
14. It is correct that on 18 October,
2010 when the appellant was intimated by
the office of the Lokayukta that a
decision has been taken to hold a
preliminary enquiry into the complaint
filed by the respondent No.4 and a copy of
the complaint along with the enclosures
thereto were forwarded to the appellant,
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the complaint filed was not supported by
an affidavit of the complainant –
respondent No.4. The said fact was pointed
out by the appellant in his letter dated
th
20 December, 2010 addressed to the
Secretary, Lokayukta, U.P. Thereafter, it
appears that the complainant had filed an
nd
affidavit on 22 December, 2010 in support
of the complaint. The said affidavit was
taken on record and thereafter a letter
th
dated 14 February, 2011 was sent by the
Under Secretary of the Lokayukta, U.P.
informing the appellant that the complaint
th
filed by the 4 respondent has been
accepted for investigation. Though not
JUDGMENT
expressly mentioned the
reception/acceptance of the affidavit of
the complainant filed belatedly was
permissible in view of the provisions of
Rule 5 of the Rules. Thereafter, the
appellant raised his objections regarding
the maintainability of the complaint and
the affidavit filed. Instead of passing a
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specific order on the aforesaid issue of
maintainability raised by the appellant it
appears that communications were addressed
by the office of the Lokayukta, U.P. to
the appellant asking for submission of
replies and documents which communications
were duly responded to by the appellant
th th
from time to time i.e. 5 July, 2011, 5
th
August, 2011 and 24 August, 2011. The
said facts would indicate that the
preliminary objection raised by the
appellant did not find favour of the
Lokayukta. The same was not expressly
recorded but clearly evident from the
steps taken in continuance of the
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proceeding which was not objected to by
the appellant.
15. On receipt of the documents
submitted by the appellant on the various
dates mentioned above, the office of the
th
Lokayukta, U.P. by letter dated 20
September, 2011 asked for further
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documents from the appellant i.e.
consolidated audited balance sheet of last
three years of Keshav Prasad Indravati
Devi Smriti Seva Samiti, Modern Girls
Inter College, Abhaypur, Keshav Prasad
Indravati Devi Balika Inter College
Sahsepur, the Registration Certificate of
Income Tax made in Form 12-A in respect of
Keshav Prasad Indravati Devi Smriti Seva
Samiti and copies of Income Tax Return
filed in Form 7 in last three years in
respect of Keshav Prasad Indravati Devi
Smriti Seva Samiti. The appellant by
th
letter dated 29 September, 2011 asked for
th
15 days' time. Instead on 4 October,
JUDGMENT
2011 the report of the Lokayukta, U.P. was
submitted.
16. Though the first complaint
(undated) submitted by the respondent No.4
was not addressed to the Lokayukta, U.P.,
th
the reminder dated 27 August, 2010 was
addressed, inter alia, to the Lokayukta,
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U.P. If that is so, there is no reason
why the same cannot be understood to be a
complaint to the Lokayukta, U.P. for
further action on the basis thereof. If
reception/acceptance of a subsequent
affidavit of the complainant in support of
a complaint filed earlier is contemplated
by Rule 5 of the Rules, we do not see why
any fault can be found in the action of
the Lokayukta, U.P. in accepting the
nd
affidavit dated 22 December, 2010
submitted by the complainant. Though the
th
notice dated 18 October, 2010 for
preliminary enquiry was issued at an
earlier stage, it is by the communication
JUDGMENT
th
dated 14 February, 2011, (after receipt
nd
of the affidavit dated 22 December, 2010)
that the appellant was informed that the
complaint of the respondent No.4 has been
accepted for investigation under Section
10(1)(a) of the Act. If, in the light of
the aforesaid facts, the Lokayukta, U.P.
had decided to proceed further in the
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matter and had issued communications to
the appellant asking for his reply and
documents in defence which were adequately
responded to by the appellant on several
dates, as noticed earlier, we do not see
how the appellant can be understood to be
justified in raising the issue of defect
of procedure before the High Court and
before this Court. The capitulation of the
relevant dates and events leave no room
for doubt that all requirements under the
Act have been complied with in the instant
case.
17. While it is correct that the
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report of the Lokayukta was submitted
without affording any opportunity of
personal hearing to the appellant and the
request for time for submission of the
th
documents made by the appellant on 29
September, 2011 was refused by the
Lokayukta, the said facts cannot
constitute good and sufficient basis for
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this Court to find fault with the conduct
of the proceedings by the Lokayukta, U.P.
in view of the provisions of Section 10(3)
of the Act which, as already noticed,
leaves to the Lokayukta the discretion to
adopt such procedure as may be considered
appropriate in the given facts of the
case. No prejudice also has been caused
to the appellant who had taken part in the
proceedings at every stage. The refusal
to grant further time to the appellant, an
issue over which some grievance has been
raised, is a matter of discretion vested
in the Lokayukta and any decision thereon
either way cannot be a legitimate basis
JUDGMENT
for interference.
18. Before parting, the issue with
regard to the jurisdiction of the
Lokayukta to proceed in the instant matter
in view of the provisions of the Third
Schedule to the Act must be answered.
What the Third Schedule to the Act
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contemplates is that the Lokayukta in the
course of an investigation under the Act
will not investigate a crime or determine
the question as to whether the matter
“shall go to, or shall continue to be
prosecuted in a court or not”. In the
present case, the recommendations of the
Lokayukta were merely for an investigation
as to whether a case for prosecution of
the appellant is made out or not.
Accordingly, the matter was investigated
and presently is under trial in a court of
competent jurisdiction. All the said
subsequent facts as noted in details at
the very outset make it clear that even if
JUDGMENT
the contentions of the appellant with
regard to the Third Schedule to the Act
are to be accepted, (we make it clear that
we do not accept the same), the question
that would arise has become wholly
academic.
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19. In the light of the above, we find
no merit in this appeal. It is
accordingly dismissed, however, without
any order as to costs.
....................,J.
(RANJAN GOGOI)
....................,J.
(N.V. RAMANA)
NEW DELHI
APRIL 10, 2015
JUDGMENT
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