Dr. S.P. Ram vs Central Bureau Of Investigation ...
2013 Latest Caselaw 4961 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No.23
 
				ALLAHABAD HIGH COURT
 
Reserved 
 

 
Criminal Misc. Application U/S 482 Cr.P.C. No.13808 of 2013
 

 

 
Dr. S.P. Ram ......................................................... ........Applicant
 

 
				Vs. 
 

 
Central Bureau of Investigation and others............ Opposite Parties.
 

 
			Connected with
 

 
Criminal Misc. Application U/S 482 Cr.P.C. No.15862 of 2013
 

 

 
Saurabh Jain ........................................................................ Applicant
 

 
				Vs. 
 

 
Central Bureau of Investigation and another ............ Opposite Parties.
 

 
				AND
 

 
Criminal Misc. Application U/S 482 Cr.P.C. No.19435 of 2013
 

 

 
M.M. Tripathi ................................................................ Applicant
 

 
				Vs. 
 

 
Central Bureau of Investigation and others............ Opposite Parties.
 

 

 
Mohd. Tahir,J.

The above noted applications under Section 482 Cr.P.C. have been filed for quashing the impugned orders of the Special Judge, Anti Corruption Court, CBI, Ghaziabad (U.P.) passed by him in two cases relating to Sections 120B r/w 420/467/468/471/409 IPC and 13((2) r/w(1)(d) of Prevention of Corruption Act, 1988 ( P.C. Act). The application U/S 482 Cr.P.C. No.13808 of 2013 has been filed by the applicant-Dr. S.P. Ram for quashing the order dated 17.4.2013 passed by the Special Judge in Special Case No.3 of 2012 relating to FIR No.RC 2(A)/2012-CBI/SC II, P.S. CBI/SC II New Delhi. The application U/S 482 No.15862 of 2013 has been filed by Saurabh Jain for quashing the order dated 16.5.2013 and the application U/S 482 Cr.P. C. No.19435 of 2013 has been filed by M.M. Tripathi for quashing the order dated 16.5.2013. Both these orders were passed by Special Judge in Case No.4 of 2013 relating to P.S. CBI-EOU IV New Delhi. By the impugned orders, the learned lower court rejected the applications moved by them for summoning the non charge-sheeted persons.

2. The above Criminal Applications under Section 482 Cr.P.C. are connected with each others and common question of law and facts are involved in these applications. So they are being decided by a common judgment.

3. The factual matrix of this case, in brief, is as such that in PIL No.3611 (MB) of 2011 Sachidanand Vs. State of Uttar Pradesh relating to implementation of Scheme of National Rural Health Mission an order dated 15.11.2011 was passed by the Division Bench of Lucknow Bench of this Hon'ble Court directing the Central Bureau of Investigation to make preliminary enquiry in the matter of execution and implementation of National Rural Health Mission (NRHM) Scheme and utilization of funds at various levels during such implementation in the entire State of Uttar Pradesh. The CBI was further directed to register the regular case in respect of persons against whom prima facie cognizable offence is made out and to proceed in accordance with law after making a preliminary enquiry. In pursuance of the aforesaid directions of the Court, five separate preliminary enquiries were registered on 19.11.2011 and on the basis of the enquiries, the CBI registered a regular case No.RC 2(A)/2012 - CBI/SC II against Dr. S.P. Ram and others, under Section 13 (2) R/W 13(1) (d) of P.C. Act and u/s 120-B, r/w 420, 409 IPC in P.S. CBI, SC-II, New Delhi and another case no. RC 220-2012-E-0003/CBI EOU-IV/ New Delhi was also registered under the aforesaid offences. After investigation, charge sheets were filed against the accused persons including the accused who are the applicants here in this proceeding under Section 482 Cr.P.C. The court of Special Judge, Anti-Corruption, (CBI), Ghaziabad took cognizance of the aforesaid offences and passed the order regarding the issuance of process against the charge sheeted accused persons.

4. The case of the applicants, in brief, is this that the opposite parties are the witnesses of the charge-sheets and their statements recorded under Section 161 Cr.P.C. disclose prima facie evidence against themselves which show their complicity in the offences the cognizance of which has already been taken by the Court of Special Judge, Anti-Corruption Court, CBI, Ghaziabad but they were not arraigned as accused by the CBI in the charge-sheets. The CBI has adopted a policy of pick and choose and on the same evidence out of them, some persons have been made accused and some persons have been made witnesses arbitrarily. In this regard, the applicants namely Dr. S.P. Ram, Saurabh Jain and M.M. Tripathi moved applications u/d 204 Cr.P.C. in the Court of Special Judge, Anti Corruption, CBI for summoning the opposite parties as additional accused in the case but their applications were wrongly rejected.

5. On the other hand, the case of the opposite parties, in short, is this that the investigation is still pending in this case and if the Investigating Officer finds sufficient legally admissible evidence against the opposite parties in that case, they may be charge sheeted. It is the prerogative of the Investigating Agency to make any person accused or witness which depends upon the evidence collected/cropped up during investigation. The accused has no right to make any other person as accused and to claim the joint trial of that person alongwith him. As per counter affidavit of Rajeev Banswal filed in the application under Section 482 Cr.P.C. No.13808 of 2013 about 21 witnesses have been examined by the Investigating Agency in the trial court. The applications for summoning the private opposite parties were malafidely moved by the accused applicants to create the delay in the decision of this case which is going on on day-today basis in the CBI Court in pursuance of some order of the Allahabad High Court passed in some other case. The CBI Court after perusing the material collected during the course of investigation, has summoned the accused applicants and did not find sufficient ground to summon the private opposite parties. So the applications of the applicants were rightly rejected by the CBI Court.

6. I have heard the learned counsel for both the parties and perused the record.

7. Learned counsel for the applicants has submitted that the view of the Court below that by virtue of Section 362 Cr.P.C., it cannot review summoning order, is wholly illegal because the Court may summon any additional accused on any next date also after taking cognizance of the offence. In support of his contention, learned counsel for the applicant has cited the ruling of the Hon'ble Supreme Court rendered in the case of M/s SWIL Ltd. Vs. State of Delhi AIR-2001 SC-2747. It is true that the Magistrate may summon any person after taking cognizance of the offence under Section 190 Cr.P.C. if his complicity in the crime in question is prima facie proved from the material collected during the course of investigation, such person can be summon as an accused by the Magistrate at the stage of taking cognizance of the offence and after taking the cognizance of the offence but before the start of the trial. The trial of the accused starts after framing the charge. Hence, before framing of the charge, any person who appears to be offenders to the Magistrate but has not been charge-sheeted by the Investigating Officer, may be summoned by the Magistrate u/s 190 Cr.P.C. So in view of the aforesaid ruling of the Hon'ble Supreme Court, the finding of the learned lower court that after passing summoning order, the Court becomes functus officio and it cannot summon additional accused by virtue of the bar created by Section 362 Cr.P.C., is wrong. In the instant case, the summoning order passed by the court below in regard to the charge-sheeted accused cannot be said a final order as regards the opposite parties who were not summoned. Had they been summoned by the court below, in that case, the summoning order as regards them would have been the final order. The accused persons who were summoned by the court below, did not challenge their summoning order in their application before the court below. Therefore, in this case, Section 362 Cr.P.C. is not applicable and an additional accused may be summoned by the court at the time of taking cognizance of the offence and thereafter but before the start of the trial. This is the preposition of law which has been propounded by the Hon'ble Apex Court in the aforesaid ruling. The aforesaid ruling relates to the power of the Magistrate in regard to the taking congnizane of offence and issuance of the process against the charge sheeted accused persons as well as against the non charge-sheeted person. This analogy is equally applicable in the case cognizable by by the Special Judge empowered by Section 5 of the P.C. Act which says that a Special Judge may take congnizance of the offences without the accused being committed to him for trial. Such type of cases have been exempted from the operation of Section 193 Cr.P.C. which relates to the powers of the Sessions Court regarding the cognizance of offence. This is the preposition of law and in this regard, there can be no other opinion but it does not mean that in the present case, the Special Judge, CBI Court was bound to issue the process to the opposite parties who were examined as witness by the Investigating Officer because it is the judicial discretion of the Special Judge to summon any person as an additional accused if some legally admissible sufficient evidence is found against him and that person can be prosecuted without sanction by the Competent Authority. So firstly, it is to be seen as to what is the evidence against the persons sought to be summoned.

8. Learned counsel for the applicants vehemently argued that the private opposite parties gave incriminatory statements to the Investigating Officer which shows their complicity in the crime in question. So there is sufficient evidence against them for their prosecution and the court below has committed an error in not summoning these persons. So the impugned orders suffers with illegality. I find no force in this contention because the statements of the private opposite parties were given by them as witnesses to the Investigating Officer during the course of investigation. So their statements are hit by Section 162(1) Cr.P.C. which runs as follows:-

" Section 162(1) Cr.P.C.- No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it: nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872): and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination."

9. Thus, by virtue of Section 162(1) Cr.P.C., the statements of the witnesses recorded under Section 161 Cr.P.C. are absolutely banned for any purpose except one allowed by the Proviso to Section 162(I) Cr.P.C. viz contradiction of the prosecution witness by (i) the accused or (ii) by the prosecution themselves with the permission of the Court i.e. after declaring him adverse. The intention of the legislature in framing Section 162 Cr.P.C. may be to encourage free disclosure of information and protect the person making the statement. So the statements of the witnesses recorded by the Investigating Officer cannot be used for corroboration and the same cannot be said to be substantive piece of evidence. Now the question arises as to what would happen if the witness whose statement has been recorded by the Investigating Officer, later on becomes the accused. The solution of this question is found in the ruling of Privy Council given in the case of Pakala Narayana Swami Vs. Emperor, AIR 1939 Privy Council 47 (From Patna). In this ruling, the Privy Council had observed as follows:-

It is inadmissible to consider the advantages or disadvantages of applying the plain meaning of the words in S.162 whether in the interests of the prosecution or the accused. The words "any person" in their ordinary meaning would include any person though he may thereafter be accused. Investigation into crime often includes the examination of a number of persons none of whom or all of whom may be suspected at the time. The first words of the Section prohibiting the statement, if recorded, from being signed, must apply to all the statements made at the time and must therefore apply to a statement made by a person possibly not then even suspected but eventually accused.

10. So according to the ruling of Privy Council, if the opposite parties sought to be summoned by the applicants as an accused, are made accused in this case, in that situation, their statements recorded under Section 161 Cr.P.C. by the Investigating Officer would lose its evidentiary value and the same would not be used as substantive or corroborative evidence against the them. To me, the words "No statement" occurring in the beginning in Section 162 (1) Cr.P.C. includes incriminatory statement also. If the opposite parties are made additional accused, there will be no evidence against them by virtue of Section 162 (I) Cr.P.C. and the aforesaid ruling of the Privy Council. It is also worth- mentioning that Section 162 (I) Cr.P.C. of the old Cr.P.C. 1898 has not been amended in the new Cr.P.C. of 1973. So the ruling of the Privy Council is squarely applicable even today.

11. Now, I come up to the question of Sanction for prosecution of public servant as some of the opposite parties are public servant in this case. So the question arises as to whether they can be prosecuted without sanction by the Competent Authority. Section 19 (1) of P.C. Act deals with this question which reads as under:-

" 19 Previous sanction necessary for prosecution- (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction-

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government.

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government.

(c)in the case of any other person, of the authority competent to remove him from his office"

In this regard the lower court has rightly referred the decision of the Hon'ble Supreme Court rendered in the case of Dilawar Singh Vs. Parvinder Singh @ Iqbal Singh and anr., AIR 2006 Supreme Court 389 (1). The Hon'ble Supreme Court has held in this case as follows:-

A Special Judge while tying an offence under the Prevention of Corruption Act,1988, cannot summon another person and proceed against him in the purported exercise of power under S. 319 Cr.P.C. if no sanction has been granted by the appropriate authority for prosecution of such a person as the existence of a sanction is sine qua non for taking cognizance of the offence qua that person. The plea that Court takes cognizance of any offence and not of an offender holds good when a Magistrate takes congnizance of an ofence under S. 190 Cr.P.CV. The Prevention of Corruption Act is a special statute and as the preamble shows this Act has been enacted to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. Here, the principle expressed in the maxim generalia specialibus non derogant would apply which means that if a special provision has been made on a certain matter, that matter is excluded from the general provisions. Therefore, the provisions of S. 19 of the Act will have an overriding effect over the general provisions contained in S. 190 or 319 Cr.P.C.

12. Thus, in view of the above ruling of the Hon'ble Apex Court, those opposite parties who are the public servants cannot be summoned at any stage for the offences mentioned in Section 19(1) of the P.C. Act without the previous sanction for prosecution by the Competent Authority.

13. Learned counsel for the applicants has submitted that Section 12 of the Act is not included in Section 19 of the Act. So, the Protection of Section 19 does not extend to an offence punishable under Section 12 of the Act. In support of his contention, he has cited the ruling of the Hon'ble Supreme Court rendered in the case of State through C.B.I. Vs. Parmeshwaran Subramani AIR 2010 SC 584. I find no force in this contention also because in the instant case, the public servant who are sought to be summoned were acting under the direction of their controlling authority. So at this stage, it cannot be said that they had abetted the accused-applicants for committing the offences punishable under Section Section 7 or 11 of the Act and moreover there is no legally admissible evidence against them at this stage as I have herein-before mentioned in the judgment. The ruling cited by the counsel for the applicants is distinguishable on facts and circumstances of the matter because in the case relating to the ruling, the public servant was arrested red handed by the police while offering and delivering the bribe but in the instant case, there is no evidence that any public servant or any other person sought to be summoned, was arrested red handed while offering or delivering any bribe.

14. Learned counsel for the applicants has further submitted that the prosecution of a public servant is not barred under other laws. In support of his contention, he has cited the decision of the Hon'ble Supreme Court in Bholu Ram Vs. State of Punjab and another AIR 2008 SC (Suppl) 550. In my opinion, this ruling also is of no help to the applicants because this ruling relates to the offences punishable under Sections 409, 420, 467, 468 and 471 IPC which are triable Magistrate and the case relating to the ruling was pending before the Magistrate concerned but the present case is pending in the court of Special Judge under P.C. Act. In the case relating to the ruling, the offences by their very nature were not regarded as having been committed by a public servant while acting or purporting to act in the discharge of official duty. So no sanction was required to prosecute him for those offences. In the case covered under P.C. Act in respect of a public servant, the sanction is of automatic nature and thus factual aspects are of little or no consequence. On the other hand in the case related to Section 197 of the Code of Criminal Procedure, the substratum of basic feature of the case have to be considered to find out whether the alleged Act has nexus with the discharge of official duty. The position is not so in Section 19 of the P.C. Act.

15. The next submission of the learned counsel for the applicants is this that the Protection of Section 19(1) of the P.C. Act cannot be extended for the criminal act performed by him like cheating under Section 420 IPC and criminal conspiracy under Section 120-B IPC. In this regard, he has referred Section 28 of the P.C. Act which reads as under:-

S. 28 Act to be in addition to any other law:- The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this Act, be instituted against him.

There can be no dispute as regards the provisions of law but the said Provision of Section 28 of the Prevention of Corruption Act are of no help to the applicants because the special judge by virtue of Sub-Section (I) of Section 4 of the P.C. Act cannot take cognizance of the offences other than the offences specified in Sub-section (I) of Section 3 of the Act. So the Special Judge cannot take cognizance of the offences of the IPC simpliciter without the offences of Sub-section 1 of Section 3 of the P.C. Act. Sub-section 3 of Section 4 of the Act says that when trying any case, a Special Judge may also try any offence other than an offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial. So for trying the offence of any other Act, there must be a case of P.C. Act against the person sought to be tried by a Special Judge. Therefore, the Special Judge cannot take cognizance of the offences not covered by Section 3 (I) of the P.C. Act directly without the accused being committed to him.

16. Learned counsel for the applicant has vehemently argued that learned lower court has wrongly placed reliance on the judgment of a Three Judge-bench of the Hon'ble Supreme Court in the case of Ranjit Singh Vs. State of Punjab 1998 SCC (Cr) 1554 in rejecting the applications of the applicants. In Ranjit Singh's case, a Three Judge-bench of the Hon'ble Apex Court has held that the Sessions Court has no power to summon any additional person as accused who has not been arraigned as accused and sent up for trial by the police before recording the evidence under Section 319 Cr.P.C. and this decision has been over ruled by a Constitution Bench of 5 judges of the Hon'ble Supreme Court in a case of Dharam Pal & others Vs. State of Haryna & another in Criminal Appeal No.148/2003. It is true that learned lower court wrongly placed reliance on Ranjit Singh's case because that case was related to the power of the Sessions Court in summoning the additional accused in the case which comes before it on committal by the Magistrate. The present case is not the case which has come before the Special Judge on committal under Section 209 Cr.P.C. by the Magistrate. The decision of the Constitution Bench of the Hon'ble Apex Court in Dharampal's case is of no help to the applicants because Dharampal's case is not the case under the P.C. Act. It is a case of Section 307 and 323 r/w Section 34 IPC. In this case only the power of the Sessions Court in regard to the taking of cognizance of the offences of a person not charge-sheeted as accused by the police, has been discussed and it has been held that the decision in the case of Kishun Singh Vs. State of Bihar { (1993) 2 SCC 161 }and not the decision of Ranjit Singh Vs. State of Punjab { (1998) 7 SCC 149} laid down the law correctly in respect of the powers of the Sessions Court after committal of the case to it by the Magistrate under Section 209 Cr.P.C. In Kishun Singh's case, it has been held that the Sessions Court has jurisdiction on committal of the case to him to take cognizance of the offences of the person not named as offenders but whose complicity in the case is evident from the material available on record and even without recording the evidence, the Sessions Court may summon those persons shown in the column 2 of the police report to stand trial alongwith those already named therein. So Dharam Pal's case is also not relevant in the instant case because in the instant case the person sought to be summoned are not named in the FIR nor they have been shown as suspected person nor their names find place in column no.2 of the charge-sheet and there is also no sufficient legally admissible evidence against them at this stage nor the present case has come before the Special Judge on committal by the Magistrate.

17. It is also noticeable that no accused can claim that he should be tried jointly alongwith his co-accused. In this regard, the ruling of the Hon'ble Supreme Court given in the case of A.R. Antulay Vs. R.S. Nayak and another, AIR 1988 Supreme Court 1531 may be referred to In this ruling it has been held as follows:-

An accused person cannot assert any right to a joint trial with his co-accused. Normally it is the right of the prosecution to decide whom it prosecutes. It can decline to array a person as a co-accused and, instead, examine him as a witness for the prosecution. What weight is to be attached to that evidence, as it may smack of the testimony of a guilty partner in crime, is a different matter. Prosecution can enter Nolle prosequi against any accused person. It can seek to withdraw a charge against an accused person.

18. It is also worth mentioning that in the present case, the investigation is open and is still in progress. In case sufficient legally admissible evidence is found against the persons sought to be summoned, in that case they may be charge-sheeted by the CBI and they can be separately tried and if they are examined as witnesses in the court, in that case, the accused applicants will have opportunity to cross-examine them. So, there is no likelihood of any injustice being done to the accused applicants if the impugned orders are allowed to stand. Therefore, the impugned orders call for no interference by this Court in exercise of powers conferred under Section 482 Cr.P.C. jurisdiction.

19. In the result, the prayer for quashing the orders impugned is refused and all the three applications under Section 482 Cr.P.C. are dismissed.

Dt. 07.08.2013.

KKG