Dr. Atul Krishna Bhatnagar vs C.B.I. & Others
2015 Latest Caselaw 3771 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on 8.10.2015
 
Judgment Delivered on 3.11.2015
 

 
Case :- APPLICATION U/S 482 No. - 34131 of 2012
 

 
Applicant :- Dr. Atul Krishna Bhatnagar
 
Opposite Party :- C.B.I. & Others
 
Counsel for Applicant :- Samit Gopal,Anil Tiwari
 
Counsel for Opposite Party :- Govt. Advocate,A.K. Singh,N.I. Jafri,P.P.S.Rathore,S.K. Singh,S.P.Singh Parmar,V.P.Srivastava
 

 
Hon'ble Om Prakash-VII,J.

1. The present application has been filed by the applicant with the prayer to quash the impugned summoning order dated 13.12.2010 passed by the Special Judicial Magistrate (C.B.I.), Ghaziabad in Criminal Case No. 4143 of 2010 (CBI vs. Dr. Atul Krishna Bhatnagar and others) under Sections 120-B read with Section 302 IPC, Police Station New Delhi -C.B.I./S.C.B.-II/2008, New Delhi relating to Case Crime No. RC.1(S)/2008/SCB-II/ Delhi. Further prayer has also been made to quash the proceedings of the aforesaid Criminal Case.

2. At the out-set, it is mentioned here that against the impugned order dated 13.12.2010 the applicant had preferred Criminal Revision No. 25 of 2011 before this Court, which, by the order dated 27.9.2012 was converted into the application u/s 482 Cr.P.C..

3. It appears that a First Information Report (in short 'FIR') was lodged on 15.6.2006 at police station Sadar Bazar, Meerut on the information of opposite party no. 3 Tushin Bishnoi against three unknown persons and the applicant of the present case with the allegation that his brother-in-law Nirmal Sharma son of late Ram Kishan Sharma, resident of 195, Police Street, Meerut Cantt was doing pairvi of the cases relating to Subharti Medical College. Shri Atul Kumar Bhatnagar had grudge with Hari Om Anand and often forbade Nirmal Sharma to favour Hari Om Anand. Before two days at about 11.30 a.m., Atul Krishna, General Manager, Subharti Trust alongwith his two companions had gone to the house of the informant. They called out Nirmal Sharma and gave threat to him, in the presence of the informant and his sister, that if Nirmal favours Hari Om Anand, he will face dire consequences. On 14.6.2006 at 21.15 p.m. near House No. 107/2, Thaper Nagar, Meerut deceased Nirmal Sharma was done to death.

4. In compliance of the orders dated 8.2.2007 and 31.10.2007 passed by this Court in Writ Petition No. 7865 (MB) of 2006, investigation of the matter was transferred on 23.10.2008 from Police Station Sadar Bazar, Meerut to the C.B.I., which was registered as case crime no. RC.1/(S) 2008/SCB-II/Delhi under Section 120-B read with Section 302 IPC. The C.B.I., after investigation in the matter submitted charge-sheet before the concerned Magistrate against the present applicant and other accused persons. The concerned Magistrate, registering the case, vide order dated 13.12.2010 took the cognizance in the mater and issued summon against the applicant fixing 14.12.2010. Aggrieved with the said order, the applicant has approached this Court through the present application.

5. Affidavits in the matter have been exchanged between the parties.

6. Heard Shri G.S. Chaturvedi, learned Senior Counsel assisted by Shri Samit Gopal, learned counsel for the applicant and Shri N.I. Jafri, learned counsel appearing for the C.B.I. and perused the entire record.

7. Learned Senior Counsel appearing for the applicant submitted that it is a case of no evidence. The Investigating Officer has submitted charge-sheet on the basis of inadmissible evidence. To attract the offence under Section 120-B IPC, there must be some connecting evidence showing the complicity of the applicant in the matter. At this stage, Shri Chaturvedi, learned Senior Counsel referred to the statement of witnesses recorded by the C.B.I during course of investigation and also the confessional statement recorded in the matter. It was further submitted that the deceased was working with the Institutions run by the applicant. He was expelled from the institution. Many persons were having enmity with the deceased, therefore, it was a blind murder. The applicant was roped in this case only on the basis of suspicion. There is every chance that some other persons would have committed the present offence. The applicant has no concern with the murder of the deceased. It was next submitted that perusal of the evidence recorded by the C.B.I. shows that essential ingredients to constitute the offence under Section 120-B IPC are lacking. The applicant never met with the other co-accused persons. Call details collected by the C.B.I. to connect the applicant with the present offence is also not sufficient to connect him with the present offence. Details of talk said to have been made on the mobile / telephone was also not made clear by the prosecution. The extra-judicial confession or confessions said to have been made in the matter also does not link the applicant with the present offence. Motive alleged by the prosecution to commit the present offence is also not sufficient against the applicant. Cognizance and the summoning order both are bad in the eye of law against the accused applicant. The concerned Magistrate did not apply his judicial mind while passing the impugned order. There is also no evidence to show the threat said to have been given by the accused applicant to the deceased. Circumstantial evidence is also not sufficient to connect the accused applicant with the murder of the deceased. In support of his aforesaid submissions, learned Senior Counsel has placed reliance on the following decisions:

(1) State (NCT of Delhi vs. Navjot Sandhu alias Afsan Guru, 2005 SCC (Cri.) 1715.

(2) Suresh Budharmal Kalani @ Pappu Kalani vs. State of Maharashtra, AIR 1998 SC 3258.

(3) Ashok Chaturvedi vs. Shitul H. Chanchani, (1998) 7 SCC 698.

(4) M/s Pepsi Foods Ltd. vs. Spl. Judicial Magistrate, 1998(36) ACC 20.

(5) P.K. Narayanan vs. State of Kerala, (1995) 1 SCC 142.

(6) State of U.P. Through Central Bureau of Investigation vs. Dr. Sanjay Singh and another, 1994 Supp (2) SCC 707.

(7) A.K. Subbaiah and others vs. State of Karnataka and others, (1987) 4 SCC 557.

(8) State of Karnataka vs. L. Muniswamy and others, AIR 1977 SC 1489.

(9) Hari Charan Kurmi and Jogia Hajam vs. State of Bihar, AIR 1964 SC 1184.

(10) R.P. Kapur vs. The State of Punjab, AIR 1960 SC 866.

8. On the other hand, learned counsel appearing for the CBI has submitted that there is sufficient evidence to connect the accused applicant with the present offence. Circumstantial evidence also clearly shows the complicity of the accused applicant in the present matter. Deceased was employed in the institution of the applicant and due to some dispute arose between them, he was removed from the employment. The deceased was about to make press conference to disclose the wrongs done by the applicant. Deceased had also made complaints against the applicant to the Income Tax Department about the irregularities committed by the applicant. On the complaint so made by the deceased, the Income Tax Department imposed penalty upon the applicant. Serious threat for dire consequences were given by the applicant to the deceased. Other accused persons were in contact of the applicant and one of them was working in the Subharti institution itself. The statement of witnesses recorded by the CBI during course of investigation clearly shows the complicity of the accused applicant with the present matter. Confession / extra-judicial confession recorded in the matter are also sufficient to connect the accused applicant with the present offence. It is further submitted that essential ingredients to constitute the offence under Section 120-B IPC are available in the evidence collected during investigation. The conduct of the applicant and the circumstances prior to or after the incident clearly shows the involvement of the accused applicant with the present matter. The confession of co-accused can be read against the accused applicant taking recourse of the provisions of Section 30 of the Evidence Act. Motive against the accused applicant is sufficient to commit the present offence. Since deceased was fully aware about the wrongs / illegal acts done by the applicant, he, with the help of other co-accused, got eliminated the deceased. It was further submitted that at this stage, the Magistrate dealing with the matter is required to see only prima-facie case. There is no requirement of law to analyze the evidence at par with trial, therefore, the Magistrate concerned has rightly passed the impugned order against the accused applicant. There is direct evidence that wife of the one of the accused had made call to the applicant just after the incident, which also shows complicity of the accused applicant with the present matter. A conspiracy was hatched by the accused applicant with other accused to commit the murder of the deceased. It was further submitted that circumstances show the meeting of mind of all accused persons before actual commission of the offence. Since conspiracy hatched by the applicant was exclusively mental process amongst the accused persons, therefore, the concerned Magistrate has rightly placed reliance on the conclusion of the Investigating Officer. There is no illegality or infirmity in the impugned order warranting interference by this Court. In support of his aforesaid submissions, learned counsel appearing for the CBI has placed reliance on the following decisions:

(1) Sonu Gupta vs. Deepak Gupta and others, (2015) 2 SCC (Cri.) 265.

(2) Smt. Khushnuma and others vs. State of U.P. And another, 2015 (90) ACC 793.

(3) R. Venkaat Krishnan vs. C.B.I., (2010) 1 SCC (Cri.) 164.

(4) P. Vijayan vs. State of Kerala and another, (2010) 1 SCC (Cri.) 1488.

9. I have considered the submissions made by the learned counsel for the parties and gone through the entire record as well as the case laws cited by the learned counsel for the parties.

10. As mentioned above, initially the impugned order was challenged by way of criminal revision but later on it was converted into application u/s 482 Cr.P.C.. Since hearing in the matter has been done at length, I do not find any necessity to discuss the maintainability of the application u/s 482 Cr.P.C. against the impugned order and the Court is proceeding to decide the matter on merits.

11. Before adverting to the facts and evidence of this case as also the submissions made by the learned counsel for the parties, it will be appropriate to refer settled legal position regarding power of the Magistrate/ Court at the stage of taking cognizance and summoning the accused and also the strength and the standard of the evidence required for constitution of the offence under Section 120-B IPC.

12. It is settled legal position that at the stage of taking cognizance and summoning the accused, the Magistrate/ Court dealing with the matter is required to apply judicial mind only with a view to take cognizance of the offence to find-out as to whether prima-facie case has been made out to summon the accused person. The Court dealing with the matter is not required to analyze the material at this stage to find-out as to whether the matter will lead to conviction or not. Sufficiency of materials for the purpose of conviction is not required. It is also settled that even when there are materials raising strong suspicion against the accused, the Court will be justified in taking cognizance and summoning the accused. The Court / Magistrate is not required to analyze the evidence as is done after recording the evidence in trial.

13. So far as the ingredients to constitute the offence under Section 120-B IPC is concerned, there must be some agreement between the accused persons to break the law through an illegal act or an act which is not illegal but by illegal means. Such act under the IPC is designated as 'criminal conspiracy'. It is also settled legal principle that hatching of a criminal conspiracy being a mental process amongst the accused, generally direct evidence to link the accused with the conspiracy would not be available. Section 10 of the Evidence Act makes the facts relevant which are sufficient to prove the conspiracy hatched by the culprits. It is a matter of common experience, in a conspiracy the accused are alert, conscious and would take all necessary care to see to it that the conspiracy could not be proved. Hence, direct evidence is seldom to prove criminal conspiracy. Whenever a conspirator commits any offence or act or omission prohibited by law, all the conspirators become liable for the act/ omission, which is their joint liability.

14. Elements / essence of conspiracy have been stated to be : (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement or by any effectual means. Thus, the essence of the criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. The legislature does not require any overt act need be done in furtherance of the conspiracy by all the conspirator. To constitute offence under Section 120-B IPC prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done an illegal act. The agreement may be proved by necessary implications. In the case of conspiracy, there cannot be direct evidence and it would not be always possible to give affirmative evidence about the date of the criminal conspiracy, about the person who took part in the formation of the conspiracy, about the object which the objectors set before themselves as object of the conspiracy and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference. Privacy and secrecy are more characteristics of a conspiracy than a loud discussion in an elevated place open to public.

15. In the present matter, the applicant Dr. Atul Krishna Bhatnagar runs a trust and institutions at Meerut i.e. Subharti Medical College etc.. The deceased Nirmal Sharma was working in the institutions run by the applicant. At one point of time, a dispute arose between one Hari Om Anand, who was also a shareholder/ partner with the applicant, and the applicant regarding share in the income of the institution. It is evident from the record that Hari Om Anand was expelled/ removed from the trust by the applicant. Not only this, the deceased and other persons, who were favouring Hari Om Anand, were also expelled from the institution. It is also evident from the record that after their expelling / ouster, deceased and Harim Om Anand had made several complaints to the authorities including the Income Tax department regarding irregularities / illegalities done by the applicant. On the complaint, the Income Tax Department had imposed fine upon the institution and also directed for recovery of the said fine. As mentioned above, the First Information Report in the matter was lodged by one Tushin Bishnoi, who was the relative of the deceased. In the statement recorded under Section 161 Cr.P.C. by the C.B.I., this witness has stated that he was not present on the spot at the time of the incident but he has supported the events happened / taken place between the applicant and the deceased prior to the incident. It is also evident from the statement recorded under Section 161 Cr.P.C. of one Suresh Pal that co-accused Kuldeep and Tajveer both were helping the applicant in sale and purchase of the land for the institutions and also were engaged in the admission process of the students. In the statement of this witness, it has also come that Tejveer had made statement before the press regarding commission of the murder of the deceased on instigation of the applicant. This witness has helped in obtaining bail of Kuldeep. He has also stated that his daughter Sunita, who was later on murdered, at that time had come to his house with a bag containing Rs. 65,000/- lakhs. One Shyam Prada, the wife of the deceased has stated that two days before the incident, on the instigation of the applicant some unknown persons had given threat to the deceased. It has also come in the evidence that at one point of time before the incident, the applicant tried to take back the deceased in the employment and when deceased denied, he was given threat to kill. Statement of Sanjay Gautam recorded under Section 161 Cr.P.C. also reveals that there was some financial dispute between Dr. Atul Krishna Bhatnagar and Hari Om Anand regarding Subharti Trust. Statement of Sanjay Gautam further reveals that co-accused Kuldeep was having good links / relations with the applicant and spent most of time in the Subharti premises. Hari Om Anand has also stated the malpractices done on the part of Subharti Trust. He admitted that deceased after his removal was working with him and complaint had also been made against the Trust by this witness as well as by the deceased. Disclosure statement of the co-accused Kusum Veer, annexed with supplementary affidavit, also disclosed that co-accused Kuldeep and his other companions committed the murder of the deceased Nirmal Sharma on the conspiracy hatched by the applicant. It has also come in the evidence collected by the CBI during investigation that just after the incident, calls were made from mobile no.9927020708 to the contact number of the applicant. Confessional statement of the co-accused Kusum Veer was also recorded in the matter by the C.B.I. Court in which there is direct evidence about the involvement of other co-accused and also the indirect involvement of the present applicant. One Tejveer, father of one of the co-accused Kuldeep, was got admitted in the Subharti Hospital before few days of the incident. Co-accused Kusum Veer and other co-accused had met with Tej Veer in the hospital where the planning for murder of the deceased was nurtured / finalized. In the statement of Samprada Sharma it has also come that applicant wanted to eliminate the deceased because deceased was fully aware about the misdeed / irregularities / wrongs committed by the applicant in the Trust. Before 8-10 days of the incident, the deceased had expressed to this witness about the happening of such type of incident.

16. Keeping in view the above facts and applying the settled legal principles, as mentioned above, to the facts and circumstances of the present case and comparing it with the observations recorded by the concerned Magistrate while passing the impugned order, this Court is of the view that the Magistrate has not committed any error in taking the cognizance in the matter and summoning the present applicant. The concerned Court/ Magistrate dealing with the matter at the stage of cognizance and summoning has taken into consideration all relevant factors required under law. Since the present matter has come-up before this Court in the form of application under Section 482 Cr.P.C., this Court had occasion to analyze the evidence collected by the C.B.I. and also the view formed by the concerned Magistrate / Court in the impugned order. There is sufficient evidence collected by the Investigating Officer to make a prima-facie view about the commission of the offence under Section 120-B IPC by the applicant. Essential ingredients to constitute the offence of hatching conspiracy by the applicant are available on record. Conduct of the accused applicant and the circumstantial evidence collected by the Investigating Officer during course of investigation are also sufficient to infer that applicant hatched conspiracy with other accused persons to accomplish the object. It is not a case that prosecution has placed reliance on few bites here and there but the evidence relied upon by the prosecution and the concerned Magistrate are adequate for connecting the accused applicant with the offence of criminal conspiracy. The cumulative effect of the available circumstances are in determining character to show the guilt of the accused applicant. Relation of the accused applicant with co-accused persons and their conduct before and after the commission of the offence is also sufficient to presume the existence of meeting of mind to hatch the conspiracy between the applicant and other co-accused persons to eliminate the deceased from the way of the applicant.

17. In view of the aforesaid discussions, I am of the opinion that the Magistrate did not err in taking cognizance and summoning the applicant. There is no illegality, infirmity, impropriety or perversity in the impugned order dated 13.12.2010 passed by the Special Judicial Magistrate (C.B.I.), Ghaziabad. The application being devoid of merits is liable to be dismissed and the interim order is liable to be vacated.

18. The application is accordingly dismissed. The interim order stands vacated.

19. It is made clear that the observations made in this order are only for deciding the controversy involved in the present matter at this stage.

20. Office is directed to send copy of this order to the concerned Court below forthwith.

Order Date :- 03.11.2015

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