Sandeep Prakash vs Union Of India (Uoi) And Anr.
2002 Latest Caselaw 1364 Bom

JUDGMENT

J.G. Chitre, J.

1. This application is heard finally today as requested by counsel of both parties. This criminal application has exposed a very strange phenomena of the life and a page in the life of a Government servant, who has been entrusted with the work of revenue intelligence. For unfolding the matter around which this criminal application is revolving, few facts need to be stated.

2. The applicant at the relevant time was working as Assistant Director in Directorate of Revenue Intelligence (hereinafter referred to as D. R. I. for convenience) One M/s Select Impex (P) Ltd. discharged four consignments containing Quartz Analog gold watches from Mumbai to Dubai/Sharjah by Sea during the period form 12-1-1999 to 4-2-1999 consisting of 27, 250, 800, 880 watches respectively. Out of those consignments, the first consignment was further sent from Dubai/Sharjah to Hongkong by Sea and the remaining 3 consignments were sent from Dubai/Sharjah to Hongkong by Air. When Shri Rajeev Aggarwal came to know that his 4th consignment of 880 watches was likely to be intercepted, he connived as per allegations of C. B. I. with present applicant Shri Sandeep Prakash, who as per allegations of C. B. I. by abusing his official position with a view to pre-empt any investigation in which the export of said consignment by other investigating agency, got three watches only seized on 10-2-1999 showing thereby that the said export was genuine. On this point C.B.I. investigated into the matter. After thorough investigation, D. R. I. Mumbai initiated adjudication proceeding against the said Rajeev Aggarwal, his firm M/s Select Impex (P) Ltd., his brother Sanjay Aggarwal, Shri A Sheikh, Supdt. Central Excise and Shri K.K. Hari, Inspector Central Excise. No action was initiated against Sandeep Prakash by DRI Mumbai on the basis of investigation, so conducted by them. Thereafter, on 11-2-2002 a report was submitted by C. B. I. to Special Judge in Misc. Application No. 55 of 2002 in C. B. I., ACU. (VI), New Delhi R. C. 2(A)/2000. After said report was submitted before the said Court, Prosecutor Mr. Shukla made oral submissions also. After hearing the oral submissions in support of said report and closure of the said intended prosecution, the said Court passed an order. The order as it stands shows that the learned Special Court has applied judicial mind to those submissions and the said report for better understanding of the matter the same order needs to be quoted ad verbatim.

"Special Public Prosecutor Shukla for the CBI present. Investigation Officer Hargave present. Heard. Perused. According to Learned Prosecutor Mr. Shukla, there is no evidence of either wrongful loss to the State or criminal conspiracy between the accused. CBI is not interested in further investigation. Hence the case is closed. Permission is granted to return the seized articles and documents. Misc. Application No. 55/2002 stands disposed of accordingly".

In the matter of said prosecution Shri Rajiv Aggrawal son Sawarmal Aggarwal, Shri Sandeep Prakash son of Suraj Prakash and others were accused. Said Sandeep Prakash son of Suraj Prakash happens to be the present applicant.

3. Shri Hari Shankar, Counsel appearing for the petitioner, pointed out that Shri A.K. Hargave Additional Superintendent of Police CBI, ACU VI, New Delhi wrote some irrelevant and unnecessary paragraphs in the said report and that is causing a serious prejudice to the present applicant and he is now exposed to a departmental enquiry which is solely dependent on the said report of Shri A.K. Hargave. He pointed out the said two paragraphs which need to be quoted.

"Sh. Rajeev Aggarwal aforesaid and his brother Sanjay Aggarwal both Directors of M/s Select Impex (P) Ltd. Mumbai were however, found to be acquainted with Sh. Sandeep Prakash since 1997. Shri Sandeep Prakash submitted an intelligence report against them for misutilising the DEPB Scheme and getting the matter investigated without disclosing to his senior officers that the said two persons were well known to him. Sh. Sandeep Prakash had repeatedly talked to Sh. Rajeev Aggarwal, over telephone during the relevant period including on the day of submission of his intelligence report on 8-2-1999 and on the day of searches of his office/factory premises on 10-2-1999 as mentioned above. He got the investigation against the said persons/firm continued without disclosing to his senior officers that the party was known to him. The telephone print outs and statement of witness Arun Kumar, Intelligence Officer has confirmed that the aforesaid Rajeev Aggarwal and Sanjay Aggarwal were known to Sandeep Prakash since 1997.

Shri Sandeep Prakash was thus found to have committed misconduct by not informing to his Sr. Officer his close acquaintance with the said two Directors of M/s Select Impex (P) Ltd. Mumbai and also by recording a favourable note dt. 10-3-1999 in the file of DRL, Mumbai, justifying the export of said watches under DEPB Scheme by M/s Select Impex (P) Ltd., a concern of Shri Rajeev Aggarwal aforesaid by misquoting the provisions of SIO norms to be applied in the case with a view to favour M/s Select Impex (P) Ltd., Mumbai. A regular departmental action for major penalty has, therefore, been initiated against Shri Sandeep Prakash which is pending with the disciplinary authority."

4. Shri Hari Shankar submitted that when CBI did not find any material to file a chargesheet and prosecution against the present applicant on the premises on which the investigation started, there was no need for Shri A.K. Hargave to write those irrelevant paragraphs which in fact malign the present petitioner and creates a serious-prejudice to him by exposure to a departmental enquiry. Shri Hari Shankar submitted that the said report is consistent with the provisions of Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code for convenience). By doing his best, Shri Hari Shankar could find that provision of Section 173(2)(d) could be relevant to said report. As said report has been revolving around the provisions of Section 173 of the Code, it would be desirable to quote the said provision as it is.

"Every investigation under this Chapter shall be completed without unnecessary delay.

(2)(i) As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating-

(a) the names of the parties:

(b) the nature of the information;

(c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom;"

5. Shri Palekar, Counsel appearing for respondent No. 1 tried to justify the said paragraph. The same is the case of Mr. Saste. But they were unable to answer the query made by the Court in context with said section of Criminal Procedure Code and to that extent as applicable to the present report and information which has been included in the said report. Both of them were not able to answer the query of the Court about the relevancy of the said writing with the purpose for which the said report was sent i.e. closure of the said investigation and prosecution.

6. Section 173, Sub-section (2) Clause (d) provides if it is read in proper sequence that as soon as it is complete (investigation), the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the report in the form prescribed by the State Government stating (a) names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and if so, by whom. As per interpretation of Sub-section (2) of Section 173, Clause (d), such report is to indicate, if the investigating agency is in a position to find so, the persons who have committed the offence, if so by whom.

7. Sub-section (2)(ii) provides that the officers shall communicate in such a manner as may be prescribed by the State Government, the action taken by him to the persons, if any, by whom the information relating to the commission of offence which first given etc. etc. ....... remaining portion is not relevant to the matter which is before this Court for adjudication.

8. As it has been submitted by Counsel appearing for the parties, the applicant was never in custody during the course of the investigation, therefore, Section 169 would not apply. The chargesheet has not been submitted against him. On the contrary the Investigating Agency, CBI, ACU found that no material could be collected during the course of investigation on the premises which was the nucleus for starting investigation. Nucleus was the allegations that the present applicant was well acquainted with said Rajeev Aggarwal, his brother and he favoured them and allowed them to utilise the said facility for making wrongful gain to themselves and wrongful loss to the Government. But the said report by itself shows that there was no wrongful loss to any of the Government. Investigating Agency was unable to find any material against the present applicant and therefore the said prosecution was closed. Not only, that but submissions were advanced on behalf of the respondent No. 1 by its Counsel before the learned Special Court in support of the prayer for closure of the prosecution and that was considered and accepted by the learned Special Court, after perusing the said report. When that was the attitude of C. B. I., the investigating agency, what was the necessity of writing said paragraphs which was not relevant to the cause for which the said report was written and submitted to the Court. Two inferences could be drawn in this context; one that it was written by somebody with malice, and second inference is that that it was written causally or indifferently. Latter inference is innocent and fit to be accepted without causing any prejudice to the cause of respondent No. 1. Keeping in view normal principle of law, this Court prefers latter inference and comes to the conclusion that it was either initiated indifferently and casually but as submitted by Shri Hari Shankar is causing serious prejudice to the career of the applicant and therefore, the applicant prayed that it be expunged.

9. When a report is to be sent in view of Section 169 of the Code or in view of Section 173(2)(i), Sub-clause (d), the report is to be perfectly relevant to the cause for which it has been prepared, for which it has been submitted in the Court. It should not include anything more than that and shall not include less than that. The irrelevancy brought in by such writing damaging the career of the person who was Assistant Director of the investigating agency has to be corrected in the interest of justice, exercising jurisdiction and power indicated by Section 482 of the Code. In this context it would be proper to look to "Article 21, which reads. No person shall be deprived of his life or personal liberty except according to procedure established by law."

Irrelevant information which has been included in the said report is violating the spirit of this important Article of Constitution of India. Every person has right to live with human dignity as guaranteed by Article 21 and therefore every report which is to be submitted in the Court in view of Section 169 of the Code of Criminal Procedure of Section 173 of the Code should be consistent with the spirit of the law and our Constitution. Otherwise anybody can be injured and damaged in service by such writings when the report purports to close the prosecution.

10. Counsel appearing for petitioner submitted that the said inquiry which is based on those paragraphs be quashed. Though those paragraphs are causing a serious prejudice to this petitioner, this Court cannot allow this prayer of petitioner for want of that jurisdiction, because this Court is dealing with Criminal side writ petitions/and applications.

11. This Court is thus called upon to exercise inherent powers indicated by Section 482 of the Code. That would be used for removing the prejudice caused to the present applicant by those unnecessary and irrelevant paragraphs of the said report which prosecution submitted for closing the prosecution.

12. Thus, the paragraphs which have been quoted above and which have been prayed to be expunged from the said report stand so expunged by allowing this application. Thus, Court confirms the act of acceptance of the said report and closing the said prosecution, as it has been done by the Special Court.

13. Shri Palekar submitted that the operation of this judgment and order be stayed, as the department wants to go to Supreme Court for special leave. Keeping in view, the prayer made by the department for closing the said prosecution which was submitted by their Counsel Mr. Shukla and the act of the Special Court of closing the said prosecution, prayer stands rejected.

The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar/Court Stenographer of this Court.