Rakesh Kumar Singh vs State Of U.P. Thru. Prin. Secy. Home Cr. And Inv.

1. Heard Sri Bal Keshwar Srivastava, learned counsel for the petitioner and Sri Anurag Verma, learned Additional Government Advocate for the State- respondents.

2. By way of present petition filed under Section 226 of the Constitution of India, the petitioner is seeking issuance of direction to opposite party No.3 for quashing the letter dated 1083120/25-27-6099/77/2025 dated

09.09.2025 passed by opposite party No.3 and quashing of First Information Report being lodged against the petitioner, in Crime No. 0186/2025 under Section 409 of Indian Penal Code at Police Station Siddhartha Nagar, District Siddhartha Nagar.

3. Notice for opposite parties No. 1 to 5 has been accepted by learned AGA.

4. As per petition, opposite party No.5 Sri Satish Kumar, Executive Engineer was directed by opposite party No.4- Joint Secretary, Department of Irrigation, to lodge an FIR against the petitioner for diversion of the fund allocated to the sanctioned project to other projects during his posting/working period i.e. from 13.04.2017 till 05.02.2024 at Siddhartha Nagar. In violation of terms and condition and direction of government order as well financial hand book, the petitioner has been 2 CRLP No. 9291 of 2025 alleged to have diverted the specific fund of total amount of Rs.1567.33/- lacs to other projects and therefore has committed the offence of Section 409 I.P.C.

5. At the very outset, learned counsel for the petitioner has submitted that no offence under Section 409 I.P.C. has been made out against the petitioner, as alleged. Admittedly, opposite parties No. 4 & 5 have not alleged any embezzlement of fund, or dishonest misappropriation, or using fund for his own purpose, rather the allegations have been levelled with regard to diversion of the fund merely. It has been further argued that the petitioner had made the payment under the specific direction and compliance of Government Letter dated 21.05.2015, whereby it was indicated that work of flood control & maintenance for the flood year 2014-2025 was to be done from the official head available with the department. Copy of Government Order No.312/01-10-2015-14(15)/2009 dated 21.05.2015 is annexed as Annexure-2. Therefore, entire payment was made from the specific head to another head under the direction and in compliance of the Government Order. Further, it has been argued that opposite parties No. 4 & 5 have not complied the mandate of Government Order No. 13/2/2012Ka-1-2012 dated 24.05.2012, whereby it has been specifically directed that in case any kind of irregularity is found on the part of any public servant, in that eventually it is indispensable to hold the departmental enquiry/proceeding against the public servant and if, it is found that any offence has been made out, only in that case the First Information Report against the public servant can be lodged. Copy of the Government Order has been appended with the writ petition. In support of the pleadings and arguments, petitioner has also appended the copies of arbitral award papers No. 63 to 94 and relying on the said documents emphasized that the payment was further made in compliance of the award passed by the arbitrator against the payment pending.

6. As per learned counsel no enquiry as such has been conducted in the letter and spirit of the Government orders mentioned above, therefore, lodging of FIR itself is not only against the natural justice but also is against the violation of the government order. It has been further argued that FIR has been lodged after inordinate delay of almost 7 years, of 3 CRLP No. 9291 of 2025 which no explanation has been offered by the respondents. On the basis of above arguments, quashing of letter and FIR herein above prayed for.

7. Per contra, learned Additional Government Advocate for the State assailed the argument advanced by the learned counsel for the petitioner and emphasized on the definition of "criminal breach of trust" under Section 316 of B.N.S., which specifies that if any fund used or diverted for the purpose other than that for which it was allocated, then such act will attract the breach of trust. As per learned AGA, nothing is on record which demonstrates that petitioner had made the payment for the flood year of 2014-2015 in flood maintenance and control project, rather the payment was made for the flood year 2012-2013, that so in violation of letter dated 21.05.2015 and provisions of financial hand book, as well. It has been further emphasized by learned AGA that copy of the arbitral award as appended by the petitioner, also transpires that arbitrator has passed award regarding the maintenance and control work done in pursuance of the contract of year 2013-2014, therefore wrongful act of the petitioner cannot be justified.

8. Assailing the argument of delayed FIR, it has been further stated by learned AGA that the subjected offence has been committed by the petitioner against the State and therefore delay is not going to hamper the impugned FIR. Further, neither the prosecution can be defeated on the ground of delay nor it should be treated as an instrument handed over to the accused to short circuit the prosecution and brings about it sudden death.

9. Learned Additional Government Advocate has placed reliance on paragraph 43 of the judgement in re: State of Tamilnadu vs. R. Soundirarasu and others (2023) 6 SCC 768; which reproduced herein under: "43. In CBI v. Thommandru Hannah Vijayalakshmi, this Court, after an exhaustive review of its various other decisions, more particularly the decision in K. Veeraswami v. Union of India, held that since the accused public servant does not have a right to be afforded a chance to explain the alleged disproportionate assets to the investigating officer 4 CRLP No. 9291 of 2025 before the filing of a charge sheet, a similar right cannot be granted to the accused before the filing of an FIR by making a preliminary inquiry mandatory."

10. On applying the parameters as laid down by the Hon'ble Supreme Court in the aforesaid judgement to the peculiar facts of the case and arguments, it may be stated that that the petitioner is a public servant holding the post of Executive Engineer, Irrigation Department at the time of occurrence and has been alleged to have diverted the budget sanctioned under the head No. 4711 to another head No.2711 and 2245, without prior permission and contravention of financial hand book, therefore, has caused irregularity.

11. The matter involves public money and investigation is continued.

12. The Hon'ble Supreme Court in the case of Niharika Infrastructure Private Limited vs. State of Maharashtra : 2021 (19) SCC 401 has categorically held that it is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on.

13. Considering the aforesaid facts and circumstances of the case, no case for interference is made out.

14. Accordingly, the writ petition is dismissed. October 13, 2025 Reena/- (Mrs. Babita Rani,J.) (Abdul Moin,J.) REENA KANNAUJIYA High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Bal Keshwar Srivastava, learned counsel for the petitioner and Sri Anurag Verma, learned Additional Government Advocate for the State- respondents.

2. By way of present petition filed under Section 226 of the Constitution of India, the petitioner is seeking issuance of direction to opposite party No.3 for quashing the letter dated 1083120/25-27-6099/77/2025 dated

09.09.2025 passed by opposite party No.3 and quashing of First Information Report being lodged against the petitioner, in Crime No. 0186/2025 under Section 409 of Indian Penal Code at Police Station Siddhartha Nagar, District Siddhartha Nagar.

3. Notice for opposite parties No. 1 to 5 has been accepted by learned AGA.

4. As per petition, opposite party No.5 Sri Satish Kumar, Executive Engineer was directed by opposite party No.4- Joint Secretary, Department of Irrigation, to lodge an FIR against the petitioner for diversion of the fund allocated to the sanctioned project to other projects during his posting/working period i.e. from 13.04.2017 till 05.02.2024 at Siddhartha Nagar. In violation of terms and condition and direction of government order as well financial hand book, the petitioner has been 2 CRLP No. 9291 of 2025 alleged to have diverted the specific fund of total amount of Rs.1567.33/- lacs to other projects and therefore has committed the offence of Section 409 I.P.C.

5. At the very outset, learned counsel for the petitioner has submitted that no offence under Section 409 I.P.C. has been made out against the petitioner, as alleged. Admittedly, opposite parties No. 4 & 5 have not alleged any embezzlement of fund, or dishonest misappropriation, or using fund for his own purpose, rather the allegations have been levelled with regard to diversion of the fund merely. It has been further argued that the petitioner had made the payment under the specific direction and compliance of Government Letter dated 21.05.2015, whereby it was indicated that work of flood control & maintenance for the flood year 2014-2025 was to be done from the official head available with the department. Copy of Government Order No.312/01-10-2015-14(15)/2009 dated 21.05.2015 is annexed as Annexure-2. Therefore, entire payment was made from the specific head to another head under the direction and in compliance of the Government Order. Further, it has been argued that opposite parties No. 4 & 5 have not complied the mandate of Government Order No. 13/2/2012Ka-1-2012 dated 24.05.2012, whereby it has been specifically directed that in case any kind of irregularity is found on the part of any public servant, in that eventually it is indispensable to hold the departmental enquiry/proceeding against the public servant and if, it is found that any offence has been made out, only in that case the First Information Report against the public servant can be lodged. Copy of the Government Order has been appended with the writ petition. In support of the pleadings and arguments, petitioner has also appended the copies of arbitral award papers No. 63 to 94 and relying on the said documents emphasized that the payment was further made in compliance of the award passed by the arbitrator against the payment pending.

6. As per learned counsel no enquiry as such has been conducted in the letter and spirit of the Government orders mentioned above, therefore, lodging of FIR itself is not only against the natural justice but also is against the violation of the government order. It has been further argued that FIR has been lodged after inordinate delay of almost 7 years, of 3 CRLP No. 9291 of 2025 which no explanation has been offered by the respondents. On the basis of above arguments, quashing of letter and FIR herein above prayed for.

7. Per contra, learned Additional Government Advocate for the State assailed the argument advanced by the learned counsel for the petitioner and emphasized on the definition of "criminal breach of trust" under Section 316 of B.N.S., which specifies that if any fund used or diverted for the purpose other than that for which it was allocated, then such act will attract the breach of trust. As per learned AGA, nothing is on record which demonstrates that petitioner had made the payment for the flood year of 2014-2015 in flood maintenance and control project, rather the payment was made for the flood year 2012-2013, that so in violation of letter dated 21.05.2015 and provisions of financial hand book, as well. It has been further emphasized by learned AGA that copy of the arbitral award as appended by the petitioner, also transpires that arbitrator has passed award regarding the maintenance and control work done in pursuance of the contract of year 2013-2014, therefore wrongful act of the petitioner cannot be justified.

8. Assailing the argument of delayed FIR, it has been further stated by learned AGA that the subjected offence has been committed by the petitioner against the State and therefore delay is not going to hamper the impugned FIR. Further, neither the prosecution can be defeated on the ground of delay nor it should be treated as an instrument handed over to the accused to short circuit the prosecution and brings about it sudden death.

9. Learned Additional Government Advocate has placed reliance on paragraph 43 of the judgement in re: State of Tamilnadu vs. R. Soundirarasu and others (2023) 6 SCC 768; which reproduced herein under: "43. In CBI v. Thommandru Hannah Vijayalakshmi, this Court, after an exhaustive review of its various other decisions, more particularly the decision in K. Veeraswami v. Union of India, held that since the accused public servant does not have a right to be afforded a chance to explain the alleged disproportionate assets to the investigating officer 4 CRLP No. 9291 of 2025 before the filing of a charge sheet, a similar right cannot be granted to the accused before the filing of an FIR by making a preliminary inquiry mandatory."

10. On applying the parameters as laid down by the Hon'ble Supreme Court in the aforesaid judgement to the peculiar facts of the case and arguments, it may be stated that that the petitioner is a public servant holding the post of Executive Engineer, Irrigation Department at the time of occurrence and has been alleged to have diverted the budget sanctioned under the head No. 4711 to another head No.2711 and 2245, without prior permission and contravention of financial hand book, therefore, has caused irregularity.

11. The matter involves public money and investigation is continued.

12. The Hon'ble Supreme Court in the case of Niharika Infrastructure Private Limited vs. State of Maharashtra : 2021 (19) SCC 401 has categorically held that it is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on.

13. Considering the aforesaid facts and circumstances of the case, no case for interference is made out.

14. Accordingly, the writ petition is dismissed. October 13, 2025 Reena/- (Mrs. Babita Rani,J.) (Abdul Moin,J.) REENA KANNAUJIYA High Court of Judicature at Allahabad, Lucknow Bench