Yadav Singh vs State Of U.P. And 2 Others
2018 Latest Caselaw 2465 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 1
 

 
Case :- APPLICATION U/S 482 No. - 31498 of 2018
 
Applicant :- Yadav Singh
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Vinay Saran
 
Counsel for Opposite Party :- G.A.,Gyan Prakash
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

Delivered by Hon'ble Ramesh Sinha, J.

1. Heard Sri Vinay Saran, learned counsel appearing on behalf of the applicant and Sri Gyan Prakash, learned counsel for the CBI.

2. By means of the present application under Section 482 Cr.P.C., the applicant has sought quashing of the order dated 25.6.2018 passed by the In-charge Special Judge, PC Act, C.B.I. Ghaziabad, in Session Trial No. 08 of 2017, CBI vs. Yadav Singh & Others, arising out of Crime No. RC-DST/2015/A/0003/CBI/STF/DLI, under Sections 109 r/w 120-B IPC alongwith Section 13(2) read with Section 13(1) (e) of Prevention of Corruption Act, 1988 (to be preferred from here onwards in short as 'PC Act'), of Police Station- CBI/STF/New Delhi, whereby the application under Section 503 Kha dated 6.11.2017 seeking pardon by accused Mohan Lal Rathi has been allowed.

3. The fact of the case are that in pursuance of F.I.R. dated 30.7.2015 number being RC/DST/2015/A/0003/CBI/STF/DLI, Police Station- STF/CBI/New Delhi against accused-applicant Yadav Singh and 4 others, investigation was made and charge-sheet was submitted against the present accused along with 11 others including present accused Mohan Lal Rathi, who has been granted pardon by the learned trial court vide impugned order dated 25.6.2018.

4. The said order had been assailed by the applicant stating that during the course of investigation, the Investigating Officer with mala fide intent in collusion with the co-accused Mohan Lal Rathi allegedly produced him before the Metropolitan Magistrate Patiala House Court, New Delhi, on 29.11.2016 and got his statement recorded under Section 164 Cr.P.C. in order to help him escape criminal liability and to make him an 'Approver'. The existence of the said statement recorded under Section 164 Cr.P.C. was vehemently challenged by the applicant, as the copy of the same had not been provided to him. Further it is mentioned that the investigation went on and charge-sheet was filed in the matter on 26.9.2017 against the applicant and others including respondent no.3 (co-accused), whereon the cognizance was taken by the Special Judge on 13.10.2017. Further it is mentioned that after managing the prosecuting agency, the respondent no.3 filed an application under Section 306 Cr.P.C. (503-Kha) before the trial court on 6.11.2017 seeking grant of pardon and for becoming an 'Approver' and also for recording his statement under Section 164 Cr.P.C., to which no objection was filed by the C.B.I.. Subsequently, an application dated 12.12.2017 was filed by respondent no.3 to convert his previous application filed under Section 306 Cr.P.C. into an application under Section 307 Cr.P.C., which was rightly dismissed by the trial court on 12.12.2017, which was challenged in Criminal Misc. Application no. 42914 of 2017 by moving an application under Section 482 Cr.P.C. by respondent no. 3 and that was dismissed on 22.12.2017. Thereafter respondent no.3 challenged the dismissal order dated 22.12.2017 by filing SLP (Crl.) No. 808 of 2018 but he could not succeed even there as the Hon'ble Apex Court directed him to appear before the trial court. Meanwhile, the N.B.W. had already been issued against the respondent no.3 by the trial court to secure his attendance. Thereafter on 20.2.2018, the trial court dismissed an application of respondent no.3 under Section 306/307 Cr.P.C. and took him into judicial custody vide order dated 20.2.2018. The said order was challenged by respondent no.3 in Criminal Misc. Application No. 7585 of 2017 under Section 482 Cr.P.C. in which vide order dated 14.5.2018, the matter was remanded to the trial court to decide the matter afresh on merits after giving opportunity of hearing to the accused. Pursuant to the said order of this court, the certified copy of which was filed before court below on 16.5.2018, a written submission/objection was filed on behalf of the applicant on 29.5.2018 as it was categorical direction of the High Court to decide the matter afresh after giving opportunity of hearing to the accused-petitioner, and to his utter dismay, the learned trial Judge not only denied him the opportunity of hearing but also held after hearing the counsel for the respondent no.3 and the prosecuting agencies that the applicant had no locus standi to be heard and refused to consider his submissions and in mechanical manner allowed the application of the respondent no.3 dated 6.11.2017 (503-Kha) under section 306 Cr.P.C. and application dated 12.12.2017 (511-Kha), granting him pardon and further declared him an 'Approver' vide order dated 25.6.2018. The impugned order violates the basic principle of audi-alteram-partem has no opportunity was provided to the applicant for hearing. He has further mentioned that prior to passing the impugned order, the trial court had already recorded statement of the respondent no. 3 under Section 306 (1) Cr.P.C. without proceeding opportunity of hearing to the applicant to cross examine him. The impugned order is also bad in law because it lacks the compliance of the direction of this court which said that the trial court must record its satisfaction regarding full and truthful discloser by respondent no.3 in case of tendering pardon to him, but no such satisfaction has been recorded in the impugned order nor has any finding been recorded about the utility of the evidence of respondent no.3 as an 'Approver'. Further it is mentioned that the trial court had failed to appreciate that the application of respondent no. 3 under section 307 Cr.P.C. was not maintainable as he had already been arrayed as the co-accused in the charge-sheet upon which the cognizance had already been taken on 13.10.2017 alongwith the applicant, much before his filing of application under Section 307 Cr.P.C. Further it is mentioned that the learned trial court failed to appreciate that the co-accused (respondent no.3) can only maintain his application under Section 306 Cr.P.C. and after his preliminary examination under Section 306(4)(b) Cr.P.C., he could be produced as a prosecution witness subject to further examination during the trial because the phrase 'any person' under Section 307 Cr.P.C. does not include co-accused. Further it is mentioned that the learned trial court failed to take into consideration the policy of state and also failed to take into consideration the culpability of respondent no.3 in the instant offence. The impugned order was in the teeth of the law laid down in CBI Vs. Ashok Kumar Aggarwal, (2014) 14 SCC 295. Further it is mentioned that the learned trial court failed to appreciate the fact that the prosecuting agency had gathered sufficient material evidence along with a list of 448 witnesses, which was sufficient to prove the case. The application for becoming an 'Approver' ought to have been preferred under section 5 (2) of the P.C. Act. The prosecuting agency also with a mala fide intention did not oppose grant of pardon, which conduct is inductive of mala fide on its part and lastly it has been mentioned that the 'In-charge Special Judge' who had limited powers for a time period till only the joining of a permanent judge, was not competent to decide the matter on merits and thus he overstepped his jurisdiction and regarding this reliance has been placed upon the judgment V. Vijaya Sai Reddy Vs. Central Bureau of Investigation, 2012 (2) ALT (Cri) 1 and also upon S. N. Dubey and Anr. Vs. Devi Kant Jha, AIR 1971 Pat 15.

5. During the arguments, learned counsel for the applicant has confined his arguments to the point that when this Court had directed the trial court vide order dated 14.5.2018, while remanding the matter, to decide the same afresh after giving opportunity of hearing to the accused, the said direction has been violated as the trial court has not given opportunity of hearing to the accused-applicant, and hence the impugned order is bad in law and should be set aside.

6. Learned counsel for the CBI has vehemently defended the impugned order, stating that the said order does not suffer from any lacuna as the same has been passed in accordance with law and in compliance with this Court's order and the direction of this Court that the opportunity be given to the accused as the same was ment to give opportunity of hearing to respondent no.3 (co-accused). Further in this regard, he has placed reliance upon T. K. Bhattacharya Vs. C. B. I. and Anr. 2015 LawSuit(P&H) 2910, where in Para 9 following has been held.

9.Besides, in view of judgment in Senthamarai's case (supra), it appears that co-accused has no locus-standi to question grant of pardon to an approver. Truth or falsity of statement of the accused seeking pardon is to be decided by court alone. It has been held that issue regarding pardon is a matter entirely between court and the person to whom it is granted. Only obligation on the prosecution is to examine such a person as a witness during trial. Pardon proceedings being neither an inquiry nor a trial, no opportunity of hearing needs to be afforded to co-accused at this stage. As trial proceeds, co-accused would get ample opportunity to cross-examine the approver and to show that his evidence was untrustworthy. Even the stage at which power under Section 306 Cr.P.C is exercised by the court, cannot be questioned by co-accused (para 17 of the judgment in Senthamarai's case (supra).

7. The learned counsel for the applicant has relied upon Central Bureau of Investigation vs Ashok Kumar Aggarwal and Another, (2014) 3 Supreme Court Cases 222, in which an appeal was preferred against the impugned judgment and order dated 20.08.2007 passed by High Court of Delhi at New Delhi in Ashok Kumar Aggarwal vs CBI, by which it set aside the order of the Special Judge dated 07.09.2001 granting pardon to Respondent No.2, Shri Abhishek Verma under sections 306 of the Code of criminal Procedure, 1973 and making him an approver in the case wherein Respondent No.1, Ashok Kumar Aggarwal was also an accused and remanded the same to decide the application afresh. The Apex court dismissed the appeal as it lacked merit. The facts of the case were that the case was registered by the appellant, CBI on 29/01/1999 on a written complaint of one Abhijit Chakraborty, Additional Director, Enforcement Directorate, Ministry of Finance, Government of India wherein it was alleged that Delhi Zonal Office of the Enforcement Directorate (in short "ED") conducted research at the office of one Subhash Chandra Barjatya on 01.01.1998. Respondent No.1 was the Deputy Director in charge of Delhi Zone at the relevant time. During the searches, the officers of ED seized a fax message from one of the shops of Shri Barjatya, purportedly sent from Swiss Bank Corp, Zurich, Switzerland which reflected a debit of the US $150, 000 from the account of Royalle Foundation, Zurich, Switzerland in favour of one S. K. Kapoor, holder of account no. 022-9-068080, Hong Kong & Shanghai Banking Corp, as per advice of customer i.e. Royalle Foundation. Shri Barjatya filed a complaint dated 04.01.1998 with the Director, ED alleging that the fax message from Swiss Bank Corp was a forged document and had been planted in his premises during the course of research undertaken on 01.01.1998 in order to frame him. The complainant and his employee had been illegally detained on the said night and were threatened and manhandled. The ED conducted the enquiry and Shri Barjatya was arrested on 28.01.1998. In March 1998, Shri Barjatya submitted a letter to ED allegedly procured by one Shri M. Kapoor, Chartered Accountant of Shri Barjatya from Eric Huggenberger, Attorney of Swiss Bank Corp, Switzerland, which was later and authenticated by the Bank and the Indian Embassy in Berne, confirming that the aforesaid fax message was a forged document and was never issued by Swiss Bank Corp, Zurich, Switzerland. In view of above facts, a view was taken that a criminal conspiracy had been hatched by the officers of the Delhi Zonal Office to create a forged document and to use it as a genuine document to create false evidence and implicated Shri Barjatya. Respondent No.2 was arrested in November 1999 and his statement was recorded under section 161 Cr.P.C. before CBI disclosing that he played an active role in forging the said fax on the instructions of Respondent No.1. On 02.12.1999 confessional statement of Respondent No.2 was recorded in the court of the Metropolitan Magistrate under section 164 Cr. P.C., wherein he reiterated his statement as made before CBI. During this period, Respondent No.1 remained absconding and could be apprehended only on 23.12.1999. Respondent No.2 filed an application under section 306 Cr. P.C. for grant of pardon and becoming an Approver, on 18.07.2000. The court entertained the said application and issued notices on 03.08.2000. When the said application came up for hearing on 01.09.2000, the presiding officer was on leave. Thus, the matter was adjourned for 21.09.2000. CBI filed a reply to the said application on 01.09.2010 stating that it had no objection if Respondent no.2 was tendered pardon and made an approver. However, as the investigation was not complete, the application could not be decided. Respondent No.1 filed an application on 30.10.2000 praying that he should be given an opportunity to be heard before Respondent no.2 was tendered pardon and made an approver. When the matter came up on 03.11.2000 before the court, Respondent no.2 himself made an application that the investigation was still pending and therefore hearing of an application seeking pardon be deferred and which was accordingly ordered. The learned Special Judge issued a letter rogatory dated 29.01.2001 to the competent judicial authority in Switzerland seeking certain information in respect of the transactions revealed by the said fax purported to be a forged and fabricated document. Respondent No.2 filed an application dated 02.05.2001 for revival of the earlier application seeking pardon and making him an approver, though the reply to the letter rogatory was still awaited. However, CBI filed its reply dated 03.05.2001 and submitted that the reply to the letter rogatory would be only corroborative in nature and would not have any effect in deciding the application filed by Respondent no.2. Respondent no.1 moved an application on 03.05.2001 claiming that he had a right to oppose the application filed by Respondent no.2 seeking pardon. However, the said application was rejected by the learned Special Judge on the same day. The said order dated 03.05.2000, rejecting the application of Respondent no.1 claiming the right to oppose the application filed by Respondent no.2 was affirmed by the High Court vide order dated 10.07.2001 and by the Supreme Court vide order dated 08.10.2001. The reply to the letter rogatory dated 18.07.2001 was received by CBI on 30.07.2001 and the said reply was placed before the court. The CBI requested the court that it should be permitted to retain the same for further investigation which was allowed. The learned Special Judge allowed the application of Respondent no.2 seeking pardon and made him an approver vide order dated 07.09.2001. Aggrieved, Respondent no.1 filed a writ petition challenging the said order dated 07.09.2001, which were subsequently converted into a petition under section 482 Cr.P.C. i.e. Criminal Misc. (Main) No. 3741 of 2001. During the pendency thereof, charge-sheet was filed on 28.06.2002 and the learned Special Judge took cognizance of the case vide order dated 08.07.2002. The Special Judge proceeded further and framed the charges vide order dated 17.12.2005. In the meantime, prosecution obtained sanction for prosecution of Respondent no.1, and the same was challenged by Respondent no.1 by preferring writ petition no. 1401 of 2005. The High Court dealt with the petition under section 482 Cr.P.C. vide impugned judgment and order dated 20.08.2007 and quashed the order dated 07.09.2001. The matter was remitted to the learned Special Judge to decide the application afresh in the light of the charge- sheet and the relevant material available with CBI. In this background of the matter, it was held that so far as the entertainment of the case at the behest of Respondent no.1 by the High Court was concerned, he did not have a legal right to raise any grievance, however, the revisional powers under section 397 read with section 401 Cr.P.C. could be exercised by the court suo motu, particularly to examine the correctness, legality or propriety of any finding, sentence or order and as to the regularity of any proceeding of the inferior court. These two sections in Cr. P.C. do not create any right in the favour of the litigant but only empower/enable the High Court to see that justice is done in accordance with the recognised principles of criminal jurisprudence. The grounds of interference may be, where the facts admittedly do not disclose any offence or where the material effects of the party are not considered or where judicial discretion is exercised arbitrarily or perversely. Indisputably, Respondent no.1 did agitate the issue regarding application filed by Respondent no.2 seeking pardon and had lost before the High Court as well as before the Supreme Court, however, these facts had not been properly placed by the appellant before the High Court. While passing the impugned judgment and considering the fact that the material required to be considered had not even been placed before the court concerned while disposing of application for grant of pardon and the manner in which the application had been dealt with as Respondent no.2 and the present appellant had been playing hide and seek with court and in spite of the fact that the court had asked the appellant to disclose the criminal cases pending against Respondent no.2, no information was furnished to the court, in the facts and circumstances of the case, substantial justice should not be defeated on mere technicalities. There was no cogent reason to interfere with impugned judgment and order. Further it was held that the order of pardon under section 306 Cr. P.C. could not be passed mechanically and the court is required to apply its mind while exercising the powers. The grant of pardon by a court under section 306 Cr.P.C. on being asked by the accused and duly supported by the State is a judicial act and while performing the said act, the Magistrate is bound to consider the consequences of grant of pardon taking into consideration the policy of the State and to certain extent compare the culpability of the person seeking pardon qua the other co-accused. Further, the court while exercising such power should not assess the probative value of the possible evidence of the person seeking permission to become an Approver in anticipation and wholly in the abstract.

8. It is apparent from the perusal of the above case law that even in this case it was held by the Hon'ble Apex court that Respondent no.1 did not have a legal right to raise any grievance, which would amount to that he did not have a right to oppose the pardon being sought by Respondent no.2, however the view simultaneously was also expressed that in such a case court ought to apply its mind to consider the consequences of grant of pardon and also should look into the details as to whether the person seeking grant of pardon had criminal antecedents and in case he had, whether granting pardon to such a person would be justified. Further the court also ordered to take into consideration the culpability of the person seeking pardon qua the other accused.

9. Therefore, in view of above, we are also the view that in the case at hand the applicant did not have any right to be heard in respect of the disposal of application for granting pardon moved by co-accused, O. P. no.3 Mohan Lal Rathi. It is apparent that the facts of the above mentioned case are totally different from the facts of the present case. No criminal antecedent is alluded to the O. P. no.3 in the present case who was nothing but a Chartered Accountant of the main accused-applicant and his other family members, also co-accused, who used to help them in digesting the ill gotten wealth on the basis of professional skill by suggesting modes of investments in various companies which were opened in the names of the family members of the main accused. The learned trial court has recorded in the impugned judgment/order that in a statement dated 29.11.2016 recorded by the Metropolitan Magistrate, Patiala House, New Delhi under section 164 Cr.P.C. the O. P. no.3 had made a disclosure in respect of 30 entries pertaining to the transactions made by the accused persons which led to enrichment of these accused illegally. It is also mentioned that in the statement of O. P. no.3 dated 31.05.2018 recorded under section 306 (1) he has made full and true disclosure of the offence and hence taking into consideration the facts and circumstances of the case it was evident that O. P. no.3 was not the main accused, rather the main accused was Yadav Singh-applicant, who being a public servant, misused his position as such in procuring ill gotten wealth and made huge properties in his own name as well as in the name of his family members/co-accused and thus the O. P. no.3 had helped the main accused as well as other co-accused in acquiring wealth beyond their known sources of income and the O.P. no.3/co-accused had full knowledge of the mode and manner in which the said crime was committed by the main accused along with his family members and therefore it was concluded by the trial court that by granting pardon and making him approver, the O.P. no.3 would be of immense help in proving the case against main accused and other co-accused. Therefore, it is also evident that the trial court has also made an assessment of the culpability of O. P. no.3 qua other co-accused and in these circumstances the impugned order does not appear to suffer from any lacuna.

10. The other ground taken in Para no.32 of the present application which is supported by an affidavit the accused applicant is that the trial court did not have jurisdiction to decide this matter because with designation of the said court being In-charge Special Judge, Anti-Corruption, CBI Ghaziabad , it was not the court of original jurisdiction. This ground, though not pressed during the oral argument by the learned counsel for the applicant, is being taken into consideration by us and we find that the said ground is baseless because vide Notification dated 28.07.2016 of Government of the Pradesh, the Governor has conferred powers upon the said court to try such cases which are investigated by CBI. Therefore on this count also, the impugned order does not suffer from any infirmity.

11. We believe that the present application has been moved by the applicant with a view to delaying the proceedings who is the main accused and it does not have any force and deserves to be dismissed and is, accordingly, dismissed.

(Dinesh Kumar Singh-I, J.)           (Ramesh Sinha, J.)
 
Order Date :- 11.9.2018
 
JK Yadav