Shri Sheesh Ram Saini vs The State (Nct Of Delhi) And Ors.
2006 Latest Caselaw 1079 Del

JUDGMENT

R.C. Jain, J.

Page 2505

1. Delhi Special Police Establishment, commonly known as Central Bureau of Investigation (CBI), is a special police force constituted under the Delhi Special Police Establishment Act, 1946 (Act 25 of 1946). Initially, the said police force was setup by the Central Government for the purpose of investigating offences of bribery and corruption connected with the departments of the Central Government. Having regard to the useful work of this force, its sphere and jurisdiction was extended not only to the offences relating to person and property under the Indian Penal Code and various other statutes committed anywhere within the territory of the country. Over the period, CBI has emerged as one of the premier investigating agencies of the country by virtue of its track record of detecting, investigating and prosecuting some of the most important, complex and intricate criminal cases of the country. The citizens of the country and the courts regard it to be a specialized investigating agency equipped with skilled investigators and most modern and sophisticated infrastructure. In fact, the people look up to CBI for the investigation of most heinous, complex and intricate criminal cases. Hundreds of petitions are filed in various High Courts and the Apex Court seeking entrustment of investigation of criminal cases to CBI on the premises that the investigation carried out by the local police or its specialized wings or other investigating agencies have failed to perform their task in a just fair, proper and impartial manner or these agencies not possessing the requisite skill or having failed to workout the crime and book the offenders. The courts have in umpteen number of cases have allowed such prayers and have entrusted the investigation of criminal cases to CBI by reposing great faith in this organization. The personnel who man this premier organization are either recruited directly or are drawn from various State police forces or Central Police organizations having regard to their impeccable record of work and conduct in those forces/organizations. The personnel of this organization are usually treated in high esteem on account of those qualities and skill and proven record. However, any organization, howsoever high it may be, is after all manned by human beings who are not always infallible. Instances are not rare when the CBI personnel were also caught on wrong foot and their conduct commented upon adversely by the courts. The present case tends to highlight such like conduct of the two officers of CBI which conduct in the reckoning of the petitioner will constitute certain criminal offence(s).

2. Through this petition under Article 226 of the Constitution of India the petitioner seeks a direction / writ in the nature of mandamus directing Page 2506 respondent no.1, i.e., the State (Govt. of NCT of Delhi) to register an FIR against respondent nos.2 and 3 for having committed offences under Sections 218/463/465/469/166/120-B of the Indian Penal Code and to launch prosecution against them in accordance with law. The petition has been filed with the averments and allegations that the petitioner is employed as an Accountant in the firms and companies of Vijay Kumar Aggarwal, having its office at A-56, Industrial Area, Phase-I, Naraina, New Delhi. On 7.12.1999 CBI registered a case RC No.6(E) 99 CBI SIU IX, New Delhi under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 against Shri Ashok Aggarwal, real brother of Vijay Kumar Aggarwal. It is alleged that in connection with the said case, the officials of the CBI had been summoning the petitioner to their office for the purpose of investigation and the petitioner had attended the office of the CBI on about forty occasions and submitted whatever information/record/ documents were asked for by respondent no.2 from him. It is averred that Insp.Vinod Kumar Pandey, a Sub-Inspector of Delhi Police was taken on deputation by CBI and his posting in the CBI was managed by respondent no.3, who was posted as a Joint Director in the CBI. It is alleged that on 26.4.2000 at about 3.45 P.M. respondent no.2 along with Mr.K.C. Joshi and some other officials of the CBI conducted a raid at the company offices at Naraina, being managed by Mr. Vijay Kumar Aggarwal at A-56, Industrial Area, Phase-I, Naraina, New Delhi and in the process, respondent no.2 with the help of other officials, seized several books of accounts and some loose documents which were converted into two bundles. At about 5.00 P.M. the members of raiding party started leaving the premises without giving any proof of the seizure of the record from the petitioner or his employer despite their repeated requests. On 27.4.2000 the petitioner went to the office of the CBI with a view to get the proof in respect of the seizure made by respondent no.2 on the previous day, i.e., on 26.4.2000 at Naraina office and met respondent no.2 and asked him either to return the books of accounts as well as the loose documents converted into two bundles or to render a proof of seizure of the said documents seized on 26.4.2000, but respondent no.2 directed him to wait in his office as he wanted to seek directions from respondent no.3 before issuing or handing over any seizure memo to the petitioner. It is alleged that respondent no.2 went away to meet respondent no.3 and after some time returned to his room and told the petitioner that he would prepare a seizure memo showing the seizure of account books as on 27.4.2000 instead of 26.4.2000 and would mention therein that the books of accounts as well as the loose documents converted into two bundles were seized by him from the petitioner in the office of CBI which meant that respondent no.2 did not want to give any proof of conducting the raid at the Naraina office of the petitioner on 26.4.2000. The petitioner was asked to accept the seizure memo of 27.4.2000 and, if the petitioner was not ready to accept the same, then no proof at all would be given to him either regarding the raid or seizure of record made on 26.4.2000 from the Naraina office. The petitioner, being a layman and without knowing the implications of the contents of the seizure memo, accepted the seizure memo prepared by respondent no.2 in which typed written date 26.4.2000 had been altered to 27.4.2000 by respondent no.2 in his hand-writing. Page 2507 It was, however, noticed by the petitioner that that seizure memo did not find mention of the loose sheets/documents which were converted into two bundles seized by respondent no.2 from the petitioner on 26.4.2000. It is alleged that all this was done by respondent no.2 in conspiracy and in connivance and at the behest of respondent no.3. The petitioner claims to have made several complaints to the officials of the CBI regarding the preparation of false/incorrect documents by respondent no.2, but no action was taken in the matter.

3. It is further alleged that after a gap of about six months on 20.10.2000 the petitioner was summoned by respondent no.2 in his office and on reaching there, he was arrested by respondent no.2 in connection with the above case with which the petitioner had no connection as he was simply working as an Accountant in the office managed by Mr.Vijay Kumar Aggarwal. Another seizure memo was prepared by respondent no.2 though no record or documents as shown in the said memo were, in fact, seized on that date and the petitioner was compelled to sign the said memo and he was abused and subjected to mis-behavior by respondent no.2. It is alleged that the documents purportedly shown to have been seized through the seizure memo dated 20.10.2000 had already been seized by respondent no.2. It is alleged that respondents no.2 and 3 have committed the offences of preparation of incorrect/false documents which act falls within the mischief of Sections 218/463/469/166/120-B IPC. Since no action was taken by the CBI authorities, the petitioner made a complaint to the Police Station, Lodhi Colony, New Delhi on 5.7.2001 for registration of a case against respondent nos.2 and 3, but the police declined to register a case primarily on the ground that they had no powers to register a case against the CBI officials, hence, this petition.

4. On being noticed by a Division Bench of this Court, the respondents opposed the petition. Respondent no.1/State of Govt. of NCT of Delhi and respondent no.4, SHO, P.S. Lodhi Colony filed reply admitting that a complaint dated 5.7.001 was received from the petitioner in the Police Station, Lodhi Colony and an enquiry was conducted into the said complaint but the allegations made in the said complaint of the petitioner had not been substantiated. It was stated that the examination of Case Diary No.72 dated 26.4.2000 of the relevant case under investigation revealed that CBI officials visited the premises A-56, Industrial Area, Phase-I, Naraina, New Delhi and brought documents and accounts books from there to CBI office and the petitioner accompanied the CBI team to CBI office and since the scrutiny of the documents could not be completed on 26.4.2000 up to 7.00 P.M., the documents were seized through seizure memo on 27.4.2000 which was signed by respondent no.2 and the petitioner on the same date. It is stated that the alleged forgery about the date appearing in the seizure memo is a typographical error, hence, there is no contradiction about the taking away of the documents on 26.4.2000 and preparation of seizure memo on 27.4.2000. The reply stated that in view of the above facts, nothing wrong has been found and no cognizable offence is found to have been committed. It was also stated that the examination of the case file of the CBI revealed that on 20.10.2000 xerox copies of some documents Page 2508 were seized by respondent no.2 on being produced by the petitioner at the time of his arrest. It is further stated that no cognizable offence is made out even if any document is seized twice during the investigation of any case. It is also stated that if any lacuna is left by the IO, the petitioner can point out the same at the trial and can get the relief at the appropriate time regarding the allegation of unjust arrest of the petitioner by CBI on 26.4.2000. It is stated that the petitioner has suitable legal remedies available in approaching the competent court for this purpose.

5. It is noteworthy that an application (Crl.M.3989/04 under Section 482 CrPC) was made on behalf of the petitioner for a direction to respondents no.1 and 4 to file counter affidavits and for initiation of contempt of court proceedings against respondent no.4 for filing false reply on behalf of respondent no.1 during the proceedings. In response to the same, Mr.Alok Kumar, Deputy Commissioner of Police filed a reply affidavit which, inter alia, brings out that the status report/reply dated 20.2.2004 filed by SHO, P.S. Lodhi Colony in this petition as well as in other petition, bearing WP (Crl.)675/2001; Vijay Aggarwal v. State, were without any authorization from the senior officers and so it was sought to be treated as withdrawn. In para 3 of the said reply affidavit of the DCP, it is stated that the main allegations of the petitioner are against the CBI officers and relate to unauthorized seizure of documents and preparation of false seizure memos and, therefore, Delhi Police cannot investigate the said allegations relating to the lapses/offences, if any, committed by the CBI during the investigation of their own case. It is, however, stated that the allegations levelled by the petitioner in his complaint dated 23.2.2004 addressed to the Commissioner of Police, Delhi were being forwarded to the Director, CBI for further necessary action.

6. In his counter, respondent no.2 stated that he is on deputation to CBI and as per the hierarchy in the CBI, the Superintendent of Police of the Branch is the immediate supervising level of an Investigating Officer, including the answering respondent. It is stated that respondent no.2, being the Investigating Officer of the above referred case, has acted in accordance with law at every stage of investigation and that the present petition is one in the series of other petitions filed by the other co-accused in the said case in an attempt to put pressure on the investigating team and delay the investigation. It is, however, not disputed that the petitioner had joined the investigation with respondent no.2 on several occasions prior to 26.4.2000 on which date the answering respondent along with Mr.K.C.Joshi, Deputy Superintendent of Police went to the office of the employer of the petitioner at A-56, Naraina Industrial Area, Phase-I, New Delhi and sought production of records and accounts and the petitioner produced 13 original ledgers of M/s. Indocil Silicon Pvt. Ltd.; M/s Pindara Chemicals Pvt. Ltd.; M/s. Pindara Pigments Pvt. Ltd. and M/s Pindara Petro Chemicals and some of the sister concerns of the accused persons. Some of those ledgers were scrutinized at the spot itself and since it was not possible to complete the scrutiny due to paucity of time, it was decided to bring the ledgers to the CBI office for further detailed scrutiny and the petitioner accompanied the CBI officials to the CBI office along with the said ledgers. It is denied that no other document was taken on that date. Respondent no.2 has tried to explain that since the Page 2509 scrutiny of the documents could not be completed on 26.4.2000, the petitioner was asked to come on the next day, i.e., 27.4.2000 to continue the scrutiny because by that time the investigating team had not yet decided whether the documents were required for investigation. Besides, it is stated that Mr. Vijay Kumar Aggarwal, co-accused, employer of the petitioner and the petitioner himself had requested the Investigating Officer not to seize the ledgers as they would be required by them for Income Tax purposes and both of them volunteered to provide them xerox copies of all the necessary documents required for the purpose of investigation. It is stated that on 27.4.2000 the petitioner attended the CBI office and brought along with him a letter from the employer-Vijay Kumar Aggarwal requesting the Investigating Officer to either return the 13 books of accounts which had been brought from his office on 26.4.2000 or issue a seizure memo. Since on scrutiny of the ledgers it was decided to retain the same, the same were seized and a seizure memo in accordance with law was issued. As regards the alteration of typed written dated from 26.4.2000 to 27.4.2000 in hand, it is stated that a typographical error had crept in while preparing the seizure memo where the typist had wrongly typed the date of seizure as 26.4.2000 and, therefore, the date was corrected by him by hand as 27.4.2000. It is denied that any further documents besides those mentioned in the said seizure memo were taken possession of or seized by respondent no.2. It is stated that no seizure memo was prepared on 26.4.2000. As regards the alleged incident of 20.10.2000, it is maintained that the files were seized from the petitioner before he was arrested as he was not cooperating with the investigation and had a pivotal role in the conspiracy and the petitioner was asked to sign the seizure memo regarding the seizure of those files. It is alleged that petitioner is trying to work out a false case that he had come to the office of the CBI empty handed on 20.10.2000 or the seizure memo of even date is a forged one. It is stated that the present petition is a mis- use of the process of the Court.

7. In the rejoinder, the petitioner has controverter the objections and pleas raised by respondent no.2 and has generally reiterated the averments made in the petition. It is denied that the documents seized by the raiding team on 26.4.2000 were produced by the petitioner and his co-accused voluntarily or that the petitioner had accompanied respondent no.2 to his office or that scrutiny of the documents so seized by respondent no.2 could not be completed on 26.4.2000 and, therefore, the petitioner went to the office again on 27.4.2000 for the said purpose. It is maintained that the petitioner never went to the office of the CBI on the evening of 26.4.2000 but it is admitted that he went there on 27.4.2000 along with the letter issued by Mr.Vijay Kumar Aggarwal asking either for return of the documents seized on the previous day or for issuance of an acknowledgment/ seizure memo. It is maintained that respondent no.2 has prepared false seizure memos on 27.4.2000 and on 20.10.2000 which makes him and respondent no.3 liable for various cognizable offences.

8. It is also noteworthy that during the course of hearing of the petition, Mr.Gopal Subramanium, learned Senior counsel representing the CBI and respondents no.2 and 3, made a suggestion that CBI would look into the Page 2510 matter and give a status report to this Court to ascertain as to whether any cognizable offence is made out or not warranting registration of an FIR and investigation into the matter. On 3.12.2004 this Court accepted the said suggestion of the learned ASG and directed that a status report be submitted by the Director, CBI or his nominee, expeditiously. It would further appear that the Director, CBI, in view of his pre-occupation with his several other official duties and commitments, could not himself conduct the enquiry and had deputed a Joint Director of CBI to make inquiries into the matter. An enquiry was conducted by Mr.Sinha, Joint Director, CBI and a report dated 26.4.2005 submitted to this Court. The said report would be referred to and its impact considered at the appropriate stage in this judgment.

9. I have heard Mr.Ram Jethmalani, learned senior counsel representing the petitioner; Ms.Mukta Gupta, learned standing counsel, representing the State of Govt. of NCT of Delhi and Mr.Gopal Subramanium, learned ASG, representing respondents no.2 and 3, and have bestowed my anxious consideration to their submissions.

10. This case is somewhat unique because of the peculiarity of its facts viz. the petitioner seeks registration of a criminal case against the Investigating Officer and another officer of the CBI for the commission of certain offence(s) allegedly committed by them during the course of investigation of a case registered with CBI itself. The case raises several important questions of law in regard to the rights of a citizen who is suspected of or is accused of a criminal offence against any onslaught on his life and liberty which admittedly encompasses within it the right to live with dignity. The other question raised is about the rights and duties of an Investigating Officer; and the supervisory and other officer(s) of an investigating agency and with regard to the validity of the procedure and practice followed by an Investigating Officer during the course of investigation of a crime; and what is the effect of an Investigating Officer in not following the due procedure as established by law in investigating a crime and transgressing those limits; and whether any departure made in that behalf can amount to commission of offence by the Investigating Officer; and lastly, whether the Investigating Officer can claim any immunity against his prosecution for commission of the said offence(s). Another question may arise as to whether the local police or any other agency has no right or jurisdiction to register a case and investigate into the same if offence is committed by an Investigating Officer of the Central Bureau of Investigation during the course of investigation of a crime.

11. Mr. Gopal Subramanium, learned ASG representing the CBI and its officers submitted at the very outset that the present petition does not survive and is liable to be dismissed without any further consideration because pursuant to the order of this Court dated 3.12.2004 a detailed enquiry into the matter has been held by Mr.S.C.Sinha, Joint Director (EOW-III New Delhi) and a report dated 26.4.2005 as approved by the Director, CBI stands filed in the Court. It is submitted that no response was sought to be filed or filed by the petitioner to the said enquiry report of the Joint Director and, therefore, the petitioner will be deemed to have accepted the said report holding that no cognizable offence is made out on the basis of the allegations levelled in the present petition. In this connection the enquiry report submitted Page 2511 by the Joint Director, CBI may be referred to. From a perusal of the enquiry report it would appear that Enquiry Officer has examined a number of witnesses including the petitioner; respondents no.2 and 3; Mr.K.C.Joshi, the then SP/CBI, ACU-VII, New Delhi, who was a part of the raiding party which raided the Naraina Industrial Area premises on 26.4.2000; Mr.Satish Kain, Inspector; Insp.Omwati and Insp. Ramphal Singh, the then SHOs of P.S. defense Colony; a certain Mr.Vijay Shrotriya; and Mrs.S.Sundari Nanda, the then DIG,CBI; and has looked into several documents including the case diaries of the case under investigation. On a consideration of the said material, the Enquiry Officer has concluded as under in regard to various allegations: "Allegation No.1 Sh. V.K.Pandey along with Sh. K.C.Joshi another CBI official conducted raids at Naraina office of different companies managed by Sh.Vijay Kumar Aggarwal and seized several books of accounts and some loose documents on 26.4.2000. They left the premises at 5 PM without giving any proof of seizure to the petitioner or his employees. On 27.4.2000 when the petitioner met Sh V.K.Pandey for returning books of accounts and the loose documents or to get the proof of seizure of the said documents, Sh V.K. Pandey prepared a false/forged seizure memo dtd 27.4.2000. Some loose sheets, documents converted into two bundles on 26.4.2000 were not mentioned in the seizure memo. He alleged that the seizure memo for 27.4.2000 was prepared as per the directions of Sh Neeraj Kumar, JD, CBI. Conclusion: It is established that on 26.4.2000 Sh V.K. Pandey, Insp. and Shri K.C. Joshi, DSP, CBI went to the office premises of Sh V.K Aggarwal along with Sh Sheesh Ram Saini, petitioner and brought back some account books to the CBI office. DSP Sh K.C. Joshi and Insp. V.K. Pandey have stated that these documents were handed over to them voluntarily by Sh V.K Aggarwal and Shri Sheesh Ram Saini. This aspect has been denied by Sh Sheesh Ram Saini. There are no independent witnesses to comment on aspect of voluntariness or otherwise of the handing over of the documents. In view of this the allegation that no seizure memo was provided to Sh Sheesh Ram Saini and Sh Vijay Kumar Aggarwal by the CBI party on 26.4.2000 has been substantiated. Sh V.K. Pandey, IO should have prepared a seizure memo on 26.4.2000 itself. However, this tantamounts to a procedural irregularity committed by Sh V.K. Pandey, IO. Enquiry however has revealed that this has in no way vitiated the investigation as the documents seized vide by the seizure memo dtd 27.4.2000 are not relied upon by the prosecution. Moreover, no cognizable offence is made out on account of this procedural irregularity. Sh Sheesh Ram Saini in his further statement has stated that even after 4 years they had not been able to identify any loose papers or documents which had gone missing from Naraina office after the CBI raid on 26.4.2000. A letter dtd 27.4.2000 from Vijay Kumar Aggarwal addressed to Sh V.K. Pandey is available on record wherein he had mentioned about the visit of CBI officers to his premises on 26.4.2000 and had also given the details of records taken by Page 2512 CBI on that day. This letter does not contain any mention of the 2 bundles of loose documents. Witness Sh Subhash Ghildayal and Sh Radhey Shyam whose affidavits had been submitted by the petitioner along with his written statement could not be examined despite the efforts made to request them to join the enquiry and as such there is no witness to support the contention of the petitioner that two bundles of loose documents were also seized on 26.4.2000 which were not incorporated in the seizure memo. There is only the word of an accused (Sh Shesh Ram Saini) against the word of an investigating CBI officer (Sh V.K.Pandey). Since the letter of Sh Vijay Kumar Aggarwal dt 27.4.2000 does not make any mention about any loose documents having been taken by IO Sh VK Pandey on 26.4.2000 and since the petitioner has failed to provide the description of such documents, it appears that probably no loose documents were taken by Insp.VK Pandey on 26.4.2000 and as a result the allegation that 2 bundles of loose documents were also seized by Sh VK Pandey on 26.4.2000 but were not reflected in the seizure memo dt 27.4.2000 has not been substantiated. The seizure memo dated 27.4.2000 has an overwriting in respect of date of seizure, however, the seizure memo has been signed by Sh. Sheesh Ram Saini with date as 27.4.2000 on both the pages. A case of forgery would have been made out only if the document was prepared on one date and signed on a different date (predated/postdated). In this case even the petitioner admits that the seizure memo was made on 27.4.2000 and therefore, this appears to be a case of a typographical error and the allegation of forged seizure memo is thus not made out. Sh. Sheesh Ram Saini has stated that he did not know whether Sh.V.K. Pandey met Sh. Neeraj Kumar when he left his office on 27.4.2000 in his (Sheesh Ram Saini) presence. He said he had no proof that proof of conducting raid at the Naraina office on 26.4.2000 was being denied to them under the directions of Sh. Neeraj Kumar. He stated that since Sh.V.K. Pandey used to mention the name of Sh. Neeraj Kumar in every matter so he had the reason to believe that everything was being done at the behest of Sh. Neeraj Kumar. Sh. Neeraj Kumar, Smt. S. Sundari Nanda and Sh. V.K. Pandey had denied that Sh. Neeraj Kumar, JD, CBI had any role to play whatsoever in the making of seizure memo dtd. 27.4.2000 or in day-to-day functioning of Sh. V.K. Pandey. In absence of any other evidence the allegation that the seizure memo dtd. 27.4.2000 was prepared under the directions of Sh. Neeraj Kumar, JD, CBI is also not substantiated. Allegation No.2 He alleged that on directions of Sh. V.K. Pandey, he had produced some other documents/books of accounts on several occasions, but only on two occasions did Sh. V.K. Pandey give him a copy of the seizure memo. Conclusion The list of documents submitted by Sh. Sheesh Ram Saini on various dates indicated that he had submitted either information pertaining to some queries or some copies only. At some places on some dates Page 2513 (25.5.2000, 26.5.2000 and 8.6.2000) he has not even specifically mentioned what book of accounts, pertaining to which company and which period was submitted. Sh. V.K. Pandey on the other hand has stated that on some occasions Sh. Sheesh Ram Saini had given some computer print outs but since these were not original documents and were prepared under his directions therefore they were not seized and were only referred to during the course of investigation. There is no independent evidence to support their contention. Thus it is the word of an accused (Sh. Sheesh Ram Saini) against the word of an investigating CBI officer (Sh. V.K. Pandey). The investigating officer of any case can always seek information from the witness/suspect/accused during the course of investigation. Hence the allegation that Sh. Sheesh Ram Saini had produced some documents/books of accounts on several occasions but Sh. V.K. Pandey had not given him a copy of seizure memo on few occasions is neither proved nor disproved and it is not possible to reach at any conclusion regarding this allegation. Allegation No.3 He has alleged that he was made to sign the seizure memo on 20.10.2000 and was abused and misbehaved by Sh. V.K. Pandey on his refusal to sign the same. He alleged that he had gone to CBI office empty handed on 20.10.2000. The said seizure memo of 20.10.2000 was incorrect/fake because the books of accounts shown to have been recovered on that day had been seized by Sh. V.K. Pandey on earlier occasions prior to 20.10.2000. He also alleged that the copy of seizure memo dtd. 20.10.2000 was not given to him by Sh. V.K. Pandey. Conclusion Sh. Sheesh Ram Saini was arrested on 20.10.2000. He claimed that he had come empty handed on that day. Sh. Vinod Pandey has denied this and has stated that Sh. Sheesh Ram Saini brought 12 files containing photocopies of various documents when he had come to the CBI office. He said that these files were seized from Sh. Sheesh Ram Saini before he was arrested. There are no independent witnesses to support either of these contentions which were no raised in the bail application dt. 21.10.2000. It is the word of one individual who is an accused (Sh. Sheesh Ram Saini) against the word of another individual who is the investigation officer of that case (Sh. V.K. Pandey). Thus there is no evidence to substantiate the contention of Sh. Sheesh Ram Saini that he came empty handed on 20.10.2000. This allegation is thus neither proved nor disproved. The other contention of Sh. Sheesh Ram Saini that the documents seized on 20.10.2000 were common to that of documents seized by Sh.V.K. Pandey on earlier occasions has however been proved to be incorrect from the detailed statement of Sh. Rajiv Dwivedi, DSP, the present pairavi officer of CBI who has clearly distinguished between the various seizure memo. The allegation of Sh. Sheesh Ram Saini that he was slapped/misbehaved by Sh. Vinod Pandey after his arrest on 20.10.2000 has been Page 2514 denied by Sh. Vinod Pandey. Inspr. Karmyal, whom Sh. Sheesh Ram Saini had claimed was present while he was slapped has stated that Sh. Vinod Pandey had never misbehaved nor slapped any witness/suspect /accused in his presence. Sh. M. Jeyakumar, witness to the arrest of Sh. Sheesh Ram Saini has also denied having witnessed any misbehavior by Sh. V.K. Pandey with Sh. Sheesh Ram Saini on that day. Sh. Jeykumar also said that Sh. Sheesh Ram Saini did not complain of any misbehavior by the IO Sh. V.K. Pandey to him when he had signed as witness on the arrest memo. The presence of Advocate Shri Surinder Miglani in the office of the IO Sh. V.K. Pandey on 20.10.2000 and the letter signed by him (Annexure-W-8/18) on that day does not indicate that there were any issues regarding misbehavior with Sh. Sheesh Ram Saini or the incorrect seizure memo given to him at the end of the day on 20.10.2000. Although these issues have been raised in the two bail applications filed on behalf of the petitioner on 21.10.2000 and 6.11.2000, however, it appears that these issues were not pressed by his counsel. It is therefore, highly improbable that Sh. V.K. Pandey would have misbehaved with an accused when his advocate and other co-accused were present in the same office at the same time. Hence the allegation that Sh. Sheesh Ram Saini was abused and misbehaved by Sh. V.K. Pandey is also not substantiated. Sh. Sheesh Ram Saini has alleged that the copy of the seizure memo dtd. 20.10.2000 was not given to him by Sh. V.K. Pandey. Sh. V.K. Pandey has denied this and said that he had given a copy to Sh. Sheesh Ram Saini and probably it got misplaced. He said that he had also given another copy to Sh. Surender Miglani, Advocate of the petitioner. However, no written acknowledgment is available on record. Therefore, it is quite probable that the copy of the seizure memo dtd. 20.10.2000 was not provided to the petitioner Sheesh Ram Saini. In any case this appears to be an irregularity committed by the IO and no cognizable offence is made out. Allegation No.4 Sh. Sheesh Ram Saini alleged that he had requested higher officials on several occasions regarding preparation of false/incorrect documents by Sh. V.K. Pandey but nothing happened. The staff of the Director never allowed him to meet the Director. Conclusion Sh. Sheesh Ram Saini had claimed to have approached Sh. K.C. Joshi, DSP and Smt. S. Sundari Nanda, the then SP with his complaint about Sh. V.K. Pandey but both of them have denied. Hence the allegation made by Sh. Saini that he complained about false/incorrect seizure memo having been prepared but nothing happened regarding his request in this regard is not substantiated.

12. The conclusions at a glance drawn by the Enquiry Officer are as under:

Conclusion at a glance I. Enquiry has revealed that the following allegations levelled by the petitioner have not been proved.

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i) Two bundles of loose documents were also seized by Sh. V.K. Pandey, Inspr. on 26.4.2000 but were not incorporated in the seizure memo dtd. 27.4.2000.

ii) The seizure memo prepared on 27.4.2000 was a forged seizure memo.

iii) The seizure memo dtd. 27.4.2000 was prepared under direction of Sh.Neeraj Kumar, JD, CBI.

iv) Documents seized on 20.10.2000 were common to the documents seized vide earlier seizure memos.

v) Sh. Sheesh Ram Saini was slapped/misbehaved by Sh. Vinod Pandey on 20.10.2000.

vi) Nothing happened when Sh. Sheesh Ram Saini met higher officials of CBI on several occasions to complain about preparation of false/incorrect documents by Sh. V.K. Pandey.

II. Enquiry has also revealed that the following allegations could neither be proved nor disproved i.e. no definite conclusion could be arrived at regarding them.

i) Sh. Sheesh Ram Saini had produced some documents/books of accounts on several occasions but Sh. V.K. Pandey had not given him a copy of seizure memo on few occasions.

ii) Sh. Sheesh Ram Saini had claimed that he came empty handed on 20.10.2000 and there was a seizure shown from him on the same date.

III. Enquiry has also revealed that the IO Sh. Vinod Pandey had committed the following procedural irregularities : -

i) He did not issue the seizure memo on 26.4.2000 when the documents were actually seized from the premises of Sh. Vijay Kumar Aggarwal on 26.4.2000.

ii) He did not give a copy of seizure memo dtd. 20.10.2000 to Sh. Sheesh Ram Saini. Enquiry however, revealed that the above mentioned procedural irregularities had in no way vitiated the investigation as the documents seized vide both the seizure memos dtd. 27.4.2000 and 20.10.2000 had not been relied upon by the prosecution.

13. Final conclusion of the Enquiry Officer being that 'no cognizable offence is made out on the basis of allegations levelled by the petitioner in the present writ petition.'

14. Mr.Ram Jethmalani, learned senior counsel representing the petitioner has refuted the above contentions of the learned Additional Solicitor General that the petitioner has or will be deemed to have accepted the said report by not filing any objection or response thereto. It is pointed out that even without filing a response to the enquiry report, the petitioner is within his right to assail the said enquiry report and to point out to the Court that the enquiry report as submitted by the Joint Director, CBI is not in conformity with the directions of this Court or the parameters laid down by the Hon'ble Supreme Court in a catena of judgments. In this connection, it is submitted that vide an order dated 3.12.2004, this Court simply accepted the suggestion of Page 2516 the learned ASG that CBI would look into the matter and file a status report to this Court to the effect if any cognizable offence is made out or not warranting registration of an FIR and investigation into the matter. However, the Enquiry Officer has not followed the mandate of the Court and exceeded his brief by embarking upon a full-fledged investigation by collecting and scrutinizing a large number of documents and examining several witnesses to find out the truth and veracity of the allegations made in the complaint and the present petition. It is pointed out that the petitioner had, in fact, made a grievance about such a procedure being followed by the Enquiry Officer by making a petition and the Court passed certain orders in that behalf on 14.3.2005 directing the Enquiry Officer not to exceed his brief. There appears to be considerable force in the submission of Mr. Ram Jethmalani because while accepting the suggestion of the learned ASG, the Court merely agreed that a senior officer of the CBI may look into the allegations made by the the petitioner in the complaint and the present petition so as to see if any cognizable offence(s) warranting registration of FIR was made out or not. Therefore, in terms of the said directions of the Court, the scope of equiry was limited only to find out if any cognizable offence is made out or not warranting registration of FIR and investigation into the matter. The Court could not have possibly given a direction to the Director, CBI or any other officer to conduct a full-fledged investigation into the allegations because by that time no FIR had been registered. However, from the enquiry report it would appear that the Enquiry Officer has gone into the veracity and correctness of the said allegations by examining a number of witnesses and documents as an investigator of a case would do after the registration of a criminal case. Can such an enquiry conducted by the Joint Director, CBI be said to be only a preliminary enquiry or it is something more is the question which needs to be considered.

15. Learned counsel for the respondents has vehemently urged that it is permissible in law for the police officer or the officers of the CBI to hold a preliminary enquiry before registration of an FIR and that the report submitted by the Joint Director, CBI is in the nature of a preliminary enquiry and nothing more. In this connection support is sought from a catena of judgments of the Apex Court and some High Courts. The first in the series is the decision of the State of UP v. Bhagwant Kishore Joshi wherein the Apex Court laid down that there is nothing in the Court to prevent a police officer from conducting a preliminary enquiry before the registration of a case. The later Supreme Court judgments have laid down that a preliminary enquiry is mandatory in the case of registration of FIRs against public functionaries. Reliance is then placed on the case of P. Sirajudeen v. State of Madras, , wherein the Hon'ble Supreme Court in para-17 held as under:

17. Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially Page 2517 one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti- Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary departmental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge-sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge-sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be restored to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report.

16. Reference is then made to the observations of the Apex Court in paragraphs 77, 78 and 79 of the celebrated judgment of the Supreme Court in the case of State of Haryana v. Bhajan Lal (1992) Suppl.1 SCC 335, which are to the following effect:

77. In this connection, it will be appropriate to recall the views expressed by Mitter, J. in P. Sirajuddin v. State of Madras in the following words: (SCC p.601, para 17):

Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanor or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general.... The means adopted no less than the end to be achieved must be impeccable.

78. Mudholkar, J. in a separate judgment in State of Uttar Pradesh v. Bhagwant Kishore Joshi at p.86 while agreeing with the conclusion of Subba Rao, J. (as he then was) has expressed his opinion stating: (SCR pp.86-87)

Page 2518

In the absence of any prohibition in the Code, express or implied, I am of opinion that it is open to a police officer to make preliminary enquiries before registering an offence and making a full scale investigation into it.

79. We are in agreement with the views, expressed by Mitter, J. and Mudholkar, J. in the above two decisions.

17. On the other hand Mr.Ram Jethmalani, learned senior counsel representing the petitioner submitted that there can, in law, be no preliminary enquiry prior to the registration of an FIR under Section 154 CrPC. The enquiry conducted by Mr.Sinha is, thus, contrary to law and cannot be countenanced. In this connection reliance has been placed on the observations of the Hon'ble Supreme Court made in para 31 of the judgment in the case of State of Haryana and Ors. v. Bhajan Lal (supra), which is as under:

At the stage of registration of a crime or a case on the basis of information disclosing a cognizable offence in compliance with the Section 154(1) of the Code, the concerned police officer cannot embark upon an inquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157....

18. Reliance has also been placed on paragraphs 33, 34, 35 and 48 of the said decision and more particularly the observations/clarification contained in paragraph 48..."the expression "reason to suspect the commission of offence" means inference based on the facts mentioned in the FIR and its annexures and at that stage question of adequate proof of facts alleged in the FIR does not arise. In the cases of Mahindro v. State of Punjab and Ors. ; Kuldeep Singh v. State 54, DLT 380 (DB); and Shanti Devi and Anr. v. State 97 DLT 410(DB) it has been held that there can be no enquiry or investigation before registration of FIR as otherwise it would tantamount to putting the cart before the horse because registration of FIR had to precede the investigation and not vice-versa. It is also contended by the learned Counsel for the petitioner that the cases relied upon by the respondent have no application to the facts of the present case because all those cases related to the registration of a case under the Prevention of Corruption Act against public servant and the Apex Court as a measure of safeguard laid down that a preliminary enquiry may be held before lodging of such a report against a public servant especially the one who occupies the top position in a department because even if the allegations are baseless, would do incalculable harm not only to the officer in particular but to the department he belongs to. Having considered the matter and assuming for the sake of argument that a Page 2519 preliminary enquiry was permissible before registration of the case, yet keeping in view the scope of such a preliminary enquiry, it is not possible to hold that the enquiry conducted by the Joint Director, CBI is merely a preliminary enquiry. It would rather appear that the enquiry so conducted by the Joint Director, CBI was, in fact, a full-fledged investigation which could only be embarked upon in the course of investigation after registration of a case. Therefore, strictly speaking the findings reached by the Enquiry Officer in the said report are not binding on the petitioner. In any case, the right of the Court to examine the said report cannot be disputed by any stretch of reasoning. Consequently, this Court finds no merits in the contention of the respondents that the enquiry report filed by the Joint Director, CBI has brought an end to the petition and it does not survive for any further consideration by this Court.

19. Assuming for the sake of argument that some of the findings reached by the Enquiry Officer can be relied and acted upon as noticed above, the Enquiry Officer in regard to Allegation No.1 has himself concluded that Allegation No.1 about the respondent no.2 having not prepared the seizure memo of the documents seized by respondent no.2 from the possession of the petitioner and had not provided him and Vijay Kumar Aggarwal any such seizure memo has been substantiated. He clearly held that Mr.V.K. Pandey, IO should have prepared a seizure memo on 26.4.2000 itself but it was merely a procedural irregularity committed by the said IO as it was revealed that such an act of commission has not vitiated the investigation as the documents seized by seizure memo dated 27.4.2000 were not relied upon by the prosecution, no cognizable offence is made out on account of this procedural irregularity. Even this finding of the Enquiry Officer is sought to be explained by the respondent on the premises that the seizure memo was not prepared by respondent no.2 on 26.4.2000 itself because on that day no seizure of the documents had actually taken place and since the documents were voluminous and the petitioner and his employer-Vijay Kumar Aggarwal, wanted that the documents may not be possessed/seized by CBI and the perusal of the documents could not be completed by the evening of 26.4.2000, the petitioner had accompanied the raiding party to the office of CBI and had left the documents with the Investigating Officer with the assurance that he would visit the CBI office again on the following day and at that time the scrutiny of the documents might be completed and whatever documents were required to be retained may thereafter be retained and seized by the CBI. These allegations are denied by the petitioner. In the opinion of this Court also, this is not only contrary to the documents and records but also flies on the face of the enquiry report of the Joint Director, CBI wherein it has been clearly concluded that the books of accounts were actually seized on 26.4.2000 while the seizure memo was prepared on 27.4.2000. Such an explanation was not found credible even by the enquiry officer, who has clearly held that documents were seized from the office of the petitioner on 26.4.2000 without issuing a seizure memo in regard to those documents.

20. Learned Additional Solicitor General has then pointed out that the non-preparation of the seizure memo on 26.4.2000 is at best a procedural Page 2520 irregularity committed by an investigating officer through the course of investigation and will not constitute any criminal offence either under Section 218 IPC or 463/465 IPC because the seizure memo itself shows that it was prepared on 27.4.2000 and not on 26.4.2000 and contains all other particulars correctly. A perusal of the seizure memo would show that though the date of seizure was shown to be 26.4.2000 in type but the type written digit '6' of the date has been altered to '7' by hand and the same date appears under the signatures of the IO as well as the petitioner on both the pages of the seizure memo. It is submitted that there was no mala fide intention on the part of the investigation officer in not preparing the seizure memo on 26.4.2000 and preparing the same on 27.4.2000 more particularly so when the seizure memo so prepared reflected the true state of affairs including the place of seizure and the details of documents seized. It is contended by the learned ASG that mere defect in the preparation of a seizure memo would not attract the ingredients of Section 218 IPC and that what is required to be proved is the intention as envisaged by Section 218 IPC. In this connection, reliance has been placed on a Supreme Court decision in the case of Raghubansh Lal v. State of U.P. 1957, SCR 696. He further contended that assuming that the seizure memo was illegal even then the same cannot be eschewed from the evidence as held by the Supreme Court in several of its decisions.

21. A seizure memo is a record of proceedings in relation to seizure of a certain article or things and is required to be prepared contemporaneously with the time and date of seizure of the articles or things giving out full details of the articles or things so seized. A mere perusal of the seizure memo dated 27.4.2000 will show that the seizure memo so prepared by respondent no.2 is an incorrect document because there was admittedly no date and time of the search and seizure at the spot at Naraina Industrial Area on 26.4.2000 though purportedly appears to have been drawn on the same date as would appear from the type-written date which was, of course, changed to 27.4.2000 by altering type- written digit '6' to hand-written digit '7'. The seizure memo does not bear the signatures of any witness which is the requirement of law as also the CBI Crime Manual-1991. Under the heading- "Preparation of seizure memo" of the said Manual, the following conditions are contained:

(a) A seizure memo has to be prepared on the spot in SPE Form C.IV in triplicate.

(b) The original as well as the carbon copies shall be signed by the officer and the witnesses.

(c) Seizure memos should always be prepared under the appropriate provisions of law i.e. Sections 51, 100(4, 5, 6, 7, 8), 165, 166, 102 CrPC 1973 as the case may be.

(d) One copy of the seizure memo will be immediately delivered to the person whose place was searched.

(e) A copy of the seizure memo shall be sent to the Magistrate having jurisdiction, as required by Section 457 CrPC.

(f) The officer conducting the search must insist on the witnesses being present with him throughout the search and when an article or Page 2521 document is discovered, attention of the witness should be called to all the circumstance relating to it.

22. Therefore, there is no escape from the conclusion that respondent no.2 has not prepared the seizure memo on the date of seizure itself, i.e. 26.4.2000 and has not followed the procedure prescribed in that behalf. It would, thus, appear to the Court that seizure memo dated 27.4.2000 was prepared by respondent no.2 only when the petitioner had visited the office of the respondent on 27.4.2000 with a letter from Vijay Kumar Aggarwal insisting for issuing the seizure memo. It is possible that but for such insistence of the petitioner and Vijay Kumar Aggarwal, no seizure memo could have at all been issued by the Investigating Officer.

23. Now coming to the second allegation in regard to the preparation of a false / fabricated seizure memo dated 20.10.2000. A perusal of the said seizure memo would show that even this seizure memo has not been prepared in accordance with law and the instructions contained in the CBI Crime Manual in as much as it does not give out the description of any books of accounts i.e. whether it is a ledger cash book or any other kind of book and what are the number of pages of each such book of accounts seized by the said seizure memo, nor it gives out the currency period of the said account books. Similarly, it is not signed by any witness and there is also no endorsement with a copy of the said seizure memo so handed over to the petitioner. This seizure memo does not compare well with the other seizure memo prepared on the same day and the other seizure memo of 24.11.2000 where complete description of even loose file covers has been given. The case of the petitioner is that no books of accounts or record were taken by him to the office of respondent no.2 on 20.10.2000 and the said seizure memos have been falsely prepared on that day to justify his involvement/arrest in this case on the premises that he was not cooperating with the investigation. The version of the respondent that the petitioner had himself taken 12 files to the office of CBI on 20.10.2000 does not appeal to the reason because in the notice under Section 160 CrPC issued to the petitioner there is no mention that the petitioner was required to bring any documents etc. on 20.10.2000. The explanation of respondent no.2 that the seizure memo was not handed over to the petitioner because the petitioner had told him that since he will remain in custody he will take the seizure memo only after he is released on bail, does not inspire confidence. The petitioner has annexed a hand-written diary which contains details of such dates and the books of accounts which were handed over by petitioner to respondent no.2. The case of the petitioner is that he had already handed over the books of accounts to respondent no.2 on different dates i.e. 25.5.2000, 20.5.2000 and 8.6.2000 for which no seizure memo was issued by respondent no.2 and in order to cover up the said illegal seizure made on those dates, the respondent prepared a fake seizure memo on 20.10.2000 when no books of accounts/files were actually seized. According to the petitioner, these acts of respondent no.2 do constitute offence under Sections 218/463/465/469/166/120-B IPC.

24. Having regard to the facts and circumstances of the case and the material brought on record and for the above stated reasons, there is no escape from Page 2522 the conclusion that the seizure memos dated 27.4.2000 and two memos of dated 20.10.2000 are not free from suspect in regard to its preparation in accordance with law and the established procedure. That being so, can it be said that it is merely a procedural irregularity committed by an investigating officer during the course of investigation or does it constitute a penal offence, cognizable offence or otherwise.

25. Section 218 IPC defines the offence of framing of incorrect record or writing by a public servant with intent to save person from punishment or property from forfeiture as under:

218. Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture.-- whoever, being a public servant, and being as such public servant, charged with the preparation of any record of other writing, frames that record or writing in a manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

26. Section 463 IPC defines the offence of forgery and Section 465 provides punishment for forgery. Section 469 IPC provides punishment for forgery for purpose of harming reputation of any party. A great deal of arguments was advanced by the learned ASG that neither any offence of forgery nor of preparation of incorrect record as envisaged by Section 218 IPC can be made out as necessary ingredient of intention to prepare the said record is missing in the present case even if it is assumed that these seizure memos were not prepared strictly in accordance with law. On the other hand, Mr.Ram Jethmalani has strongly urged that preparation of the seizure memos in the present case do constitute the said offences as envisaged by the above Sections. This Court also on a consideration of the facts and circumstances, as noticed above in detail, is prima facie of the opinion that the preparation of the seizure memo in the above circumstances would attract the penal provisions. Merely because the said seizure memos were prepared by an investigating officer during the course of investigation of a crime will not carve out any exception. Law does not envisage that if such like offences are committed by a police officer during the course of an investigation, he shall not be liable for the said offences. Such like acts cannot be brushed aside lightly by branding them mere procedural irregularities committed by an Investigating Officer during the course of investigation of a crime. To say the least, it would appear to this Court that the enquiry officer has not been correct in his approach when he finally concluded that the non-preparation of seizure memos contemporaneously was merely an irregularity on the part of the investigating officer which did not constitute any cognizable offence.

27. It is true that this is not the first ever case where embellishment of this kind have been noticed during the course of investigation of criminal case but in quite a number of cases Investigating Officers follow such a practice Page 2523 with impunity and the courts turn a blind eye not to discard such like seizure memos and other documents and despite recording their disapproval of such practice still in their zeal of recording conviction do not discard the same. Criminal investigation system in this country has yet to reach such high standard where the investigation of crime is conducted and completed without any padding whatsoever. This in most of the cases may be with the object of achieving conviction. How long the Courts would go on to accept and act upon such padded investigations in order to register convictions, is a larger question. The padding during the course of investigation may be in some minor respects or details or merely procedural, while in others it may be in regard to certain vital respects shaking the very edifice of the criminal prosecution. If the embellishment/ paddings are of a grave nature, the Courts would not be justified in ignoring the same and still recording convictions. Is it fair to the accused in the present day criminal justice delivery system to accept such padded investigation as a repository of the correct procedure followed during the course of investigation to register convictions" Umpteen number of cases have resulted into acquittal on account of the defective and padded investigation and the conduct of such investigators, has come up for adverse criticism at the hands of the courts.

28. Is the present case one, where this Court should ignore the serious acts of an investigator in deliberately preparing incorrect seizure memos or should it order an investigation into the same, is the last question to be answered. As noticed above earlier in this judgment, CBI is a premier investigating agency of the country. The citizens of this country and the courts look upon it in high esteem because of the devoted and honest service it usually renders in the investigation of certain important, sensitive and complex cases throughout the length and width of the country. If embellishments of the above nature are brought to the fore, it would only be appropriate for this agency also to get itself cleared of the same.

29. Towards the end of hearing on this petition, Mr.Ram Jethmalani, learned senior counsel representing the petitioner floated a suggestion that the petitioner would perhaps be satisfied if having regard to the entire facts and circumstances the Director, CBI could only express his regrets to the Court in regard to the conduct of its officer in the course of investigation of the case registered against the petitioner and the others. Under the instructions of Director, CBI, the learned Additional Solicitor General stated before the Court that Director, CBI on examination of the matter declined the suggestion of Mr.Ram Jethmalani, learned senior counsel representing the petitioner to express any regret in the matter. This being the position, this Court is left with no other alternative except to allow the present petition and to direct the registration and investigation of the case under appropriate provisions of law and depending upon the outcome of such an investigation, to take further necessary action in accordance with law.

30. It is pertinent to mention here that during the pendency of the petition the petitioner also moved a petition for initiating contempt proceedings against respondent no.4-Insp.Omwati, the then SHO, P.S. Lodhi Colony, New Delhi for initiating contempt proceedings against her for filing a false and incorrect affidavit but at the time of hearing of the petition, learned Counsel for the Page 2524 petitioner did not press the said petition in view of her affidavit explaining the circumstances in which she had filed her affidavit. Consequently, the contempt notice issued to respondent no.4-Insp.Omwati, was discharged.

31. In view of the above discussion and in the result, the present petition is partly allowed and the Special Cell of Delhi Police is directed to register a case on the basis of allegations contained in the complaint dated 5.7.2001 lodged by the petitioner with police station Lodhi Colony and those contained in the present petition. The investigation shall be conducted by an officer not below the rank of Assistant Commissioner of Police in the said Cell independently and uninfluenced by the findings and observations contained in the report of enquiry dated 26.4.2005 conducted by the Joint Director, CBI. He shall endeavor to conclude the investigation expeditiously within a period of two months from the date of this order and shall file a status report in the Court on 5th September, 2006. The petition and all pending applications stand disposed of accordingly.