Mukesh Srivastava vs C.B.I., S.T.F.
2015 Latest Caselaw 1112 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									AFR
 
Court No. - 42
 

 
Case :- APPLICATION U/S 482 No. - 17361 of 2015
 

 
Applicant :- Mukesh Srivastava
 
Opposite Party :- C.B.I., S.T.F.
 
Counsel for Applicant :- Mohd. Yasir Abbasi,Mohammad Khalid
 
Counsel for Opposite Party :- N.I. Jafri
 

 

 
Hon'ble Amreshwar Pratap Sahi,J.

Sri Pankaj Srivastava, learned counsel for the applicant has put in appearance on behalf of the applicant today and has filed his Vakalatnama to which learned counsel Mohd. Khalid has no objection who has filed this 482 application. Consequently, I have heard Sri Srivastava on behalf of the applicant and Sri N.I. Jafari for the C.B.I.

The application runs in 77 paragraphs and in 75 paragraphs of the application justification has been sought to be made for interference and quashing of the proceedings on the ground that there is no evidence as against the applicant nor any material so as to charge sheet the applicant and prosecute him in the case in Special Case no.22 of 2014 relating to the NRHM Scam. The application for discharge has been rejected by the trial court.

Learned counsel for the applicant contends that the applicant before this court is stated to be the Controller of a firm M/s Medicin Time and in that capacity has allegedly aided and abetted the commission of the offences in which the suppliers and the other government officials were involved. He submits that in the entire evidence collected there is no material so as to involve the applicant, and in the aforesaid background the application for discharge which has been dismissed by the trial court is founded on erroneous considerations which is also evident from the fact that the trial court itself has found the investigation to be incomplete and has issued directions for further investigation.

Sri Jafri, learned counsel for the C.B.I. contends that the charge sheet and the material on record has been considered and the explanation which is now sought to be given by the applicant for non-availability of any evidence against him is clearly within the realm of appreciation which is yet to be done during trial. The evidence which has been collected at this stage cannot be disbelieved in its entirety so as to discharge the applicant and therefore the trial court was justified in passing the impugned order.

I have considered the submissions so raised at the bar and there is yet another point referred to in paragraph 73 of the application, namely, that the trial court and the Speical Judge who was proceeding and has passed the impugned order had no jurisdiction to proceed with the case in view of the notification dated 29.5.2014. He, therefore, submits that even otherwise the order is without jurisdiction.

Coming to the first point raised I have gone through the charge sheet as well as the order whereby the discharge application filed by the applicant has been rejected and from a perusal thereof it is evident that the indication of the involvement of the applicant is available on record which is always subject to any further evidence or trial. The directions for further investigation by the trial court does not in any way dilute the evidence at this stage so as to discharge the applicant. Similar issues were raised in the case of Devendra Mohan Vs. C.B.I. 2013 (4) ADJ Page 620 where such contentions have been rejected in detail relating to the same NRHM scam.

Apart from this the contentions raised in the application are in the shape of a defence and at this stage of cognizance and framing of charges the proceedings cannot be quashed by looking into any such material which is sought to be pleaded as a defence in the case. The said view is supported by the latest decision of the Apex Court in the case of Sonu Gupta Vs. Deepak Gupta & others, 2015 (3) SCC Page 424. The order dated 5.5.2015 passed by the trial judge declining discharge has mentioned in detail the evidence, the role of the applicant and complete reasons for refusal to discharge. On a perusal of the same and having considered it from all angles, I see no good ground or reason to differ from the same.

In the circumstances, the first point does not hold water.

So far as the second issue relating to the jurisdiction of the Special Judge to proceed in the matter is concerned, this Court in Application 482 No.6623 of 2015 M/s HCL Infosystem Ltd. vide judgment dated 1.5.2015 has dealt with the issue of jurisdiction of the same special court where the applicant is being tried and has held that the jurisdiction was available with the said learned Special Judge to proceed in the matter. The issue has been answered in detail.

After the said judgment was delivered the State Government has come up with a fresh notification dated 15.5.2015. The contents whereof are extracted hereinunder:-

UTTAR PRADESH SHASAN

GRIH (POLICE) SECTION-9

In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication of the following English translation of notification no.U.O-20/VI-P-9-15-167G/09-Nyaya-2, dated May 15, 2015

NOTIFICATION

Miscellaneous

No.U.O-20/VI-P-9-15-167G/09-Nyaya-2,

Lucknow: Dated: May 15, 2015

In exercise of the powers under sub section (1) of section 3 and sub-section (2) of section 4 of Prevention of Corruption Act, 1988 (Act no.49 of 1988) read with section 21 of the General Clauses Act, 1897 (Act no.X of 1897) and in continuation of the Government notification issued in this behalf the Governor is pleased to appoint from the date of his taking over charge the Additional District Judges mentioned in Column-2 of the Schedule below, as Special Judge for the areas mentioned in column-4 for trial of such offences, as specified in sub-section (1) of section 3 of the said Act of 1988 in which hereinafter charge sheets are filed in his court by Special Police Establishment of the Government of India and to direct that such other cases arising within the said areas, in which charge sheets have already been filed before any other Special Judge appointed under the said Act of 1988 and also such other cases arising within the said area relating to said Special Police Establishment which are pending before such as Special Judge, shall also be tried and disposed off by him and his court shall be designated as specified in Column-3 of the said Schedule with headquarters at Ghaziabad.

The Governor is further pleased to empower the officer as mentioned at Sr. No-1 of Schedule-1 holding the Special Court, Anti Corruption, CBI, Ghaziabad for sisposing off all NRHM pending cases, as well as cases which may be filed in future for the entire State of Uttar Pradesh, with immediate effect and in future, upon relinquishing the charge by the incumbent of the said special court, his successor in office will try and dispose off all NRHM pending cases, as well as which may be filed in future for the entire State of Uttar Pradesh.

SCHEDULE-1

Sl. No.

Name of the Judicial Officers Recommended as Special Judge

Designation of Court

Districts falling in the Jurisdiction of Courts of Col. No.2

Sushri Ghandlkota Sree Devi, Special Judge, Anti Corruption, CBI, Ghaziabad

Special Court Anti Corruption, C.B.I., Ghaziabad

Gautam Budh Nagar, Aligarh, Rampur and mainpuri and for disposing off all NRHM pending cases, as well as cases which may be filled in future for the entire State of Uttar Pradesh.

Sri Ashok Kumar-VII, Special Judge Anti Corruption, CBI, Court No.-1, Ghaziabad

Special Court, C.B.I., Court No.-1, Ghaziabad

Ghaziabad, Moradabad, Bijnor and Hathras.

Sri Navneet Kumar, Special Judge Anti Corruption, CBI, Court No.-3, Ghaziabad

Special Court, C.B.I., Court No.-3, Ghaziabad

Agra, Muzaffarnagar, Baghpat, Meerut and Firozabad.

By order

Neena Sharma

Secretary

A perusal of the said notification would leave no room for doubt that the jurisdiction with the successor in office now continues and there is no want of jurisdiction in so far as the concerned court is concerned to proceed in the matter.

However, another development has taken place namely that against the judgment in the case of M/s HCL Infosystem Ltd. (supra), one of the aggrieved persons assailed the said judgment before the Apex Court and the Apex Court in Special Leave Petition No.4338 of 2015 has passed the following order on 6.7.2015 :-

ITEM NO.37 COURT NO.2 SECTION II

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s).4338/2015

(Arising out of impugned final judgment and order dated 01/05/2015 in APP No.6623/2015 passed by the High Court Of Judicature at Allahabad)

M/s HCL INFOSYSTEM LTD Petitioner

VERSUS

CENTRAL BUREAU OF INVESTIGATION Respondent

(with appln. (s) for exemption from filing C/C of the impugned judgment and exemption from filing O.T. and interim relief and office report)

Date : 06/07/2015 This petition was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE T.S. THAKUR

HON'BLE MR. JUSTICE V. GOPALA GOWDA

HON'BLE MRS. JUSTICE R. BHANUMATHI

For Petitioner (s) Mr. Kapil Sibbal, Sr. Adv.

Mr. P.V. Dinesh, Adv.

Ms. Sindhu TY.P., Adv.

Mr. Bineesh K., Adv.

Mr. Rajendra Beniwal, Adv.

For respondent (s)

UPON hearing the counsel the Court mad the following

ORDER

Mr. Kapil Sibal, learned senior counsel petitioner refers to the decision of this Court dated 05.02.2014 in State through CBI, New Delhi Vs. Jitender Kumar Singh (2014 (11) SCC 724.

Issue notice.

Proceedings before the Trial Court shall remain stayed pending further orders from this Court.

(Shashi Sareen)					(Veena Khe)
 
Court Master					Court Master
 

 
Signature not verified
 
Digitally signed by 
 
Shashi Sareen
 
Date: 2015.07.07
 
10:52:05 IST Reason:
 

 

 

A perusal of the aforesaid order indicates that notices have been issued in view of the issue involved in that case as per the judgment of the Apex Court in the case of State through CBI, New Delhi Vs. Jitendra Kumar Singh, 2014 (11) SCC Page 724.

It is correct that the interim order is operating in so far as that case is concerned only, but the issue raised therein also includes the issue of jurisdiction, the point which has been raised in the present petition as well. It is correct that interim orders are not binding precedents and so far as this case is concerned, the issue has already been answered by the High Court in the case of M/s HCL Infosys Ltd. but in the present case the issue relating to the proceedings of the trial in view of the judgment in the case of State through C.B.I. Vs. Jitendra Kumar Singh (supra) is not involved. In such a situation it cannot be said at this stage conclusively as urged by the learned counsel for the applicant that the judgment in the case of M/s HCL Infosys (supra) would not apply. The operation of the judgment has not been stayed by the Supreme Court. Apart from this the fresh notification which has been issued on 15.5.2015 also does not allow this Court now to stay any further proceeding in the matter and the same does not find mention in the order of the Supreme Court.

Accordingly, in the event any party is aggrieved, it is open to the said party to approach the Apex Court for any such clarification including the CBI about the same.

What is to be noted at this stage is that in the matter of NRHM Scam which is being tried in the Special Court at Ghaziabad there are a total number of 82 cases pending with 332 accused persons. The data dated 8.7.2015 which has been supplied by the learned Special Judge to this Court through the learned District Judge, Ghaziabad on the administrative side demonstrates that 47 matters are pending on the issue of charges, 6 matters are pending in relation to evidence, 8 matters have been stayed, 2 matters are pending framing of charges, 14 matters are pending with regard to taking of cognizance and 5 matters relating to submission of final police report. Apart from this there are 72 accused who are still behind bars whereas 220 accused have been granted bail. 33 proceedings are pending before the Apex Court where various interim orders have been passed. 3 accused are reported to be absconding.

In the aforesaid circumstances when the matter is of the year 2010 and more than 5 years have passed by and the status of the proceeding is aforesaid, it will otherwise be not in the interest of justice to now interfere with the proceedings with the trial court as it would delay matters further.

Apart from this the court also notices the absence of the counsel for the C.B.I. and of the respondents in the matter relating to M/s HCL Infosys (supra) in which the interim orders have been passed by the Apex Court quoted hereinabove. This aspect should be taken notice of by the Director of the C.B.I. in order to attend to such cases at all levels which does not appear to have been done and at least bring all relevant facts to the notice of the court, particularly the fresh notification dated 15.5.2015 quoted above.

In the aforesaid background and the circumstances indicated above, this is not a case where the issue of jurisdiction can be entertained by this Court at this stage and, therefore, the application lacks merit and is hereby rejected.

Order Date :- 10.7.2015

Anand Sri./-