Delhi High Court
Dharambir Khattar vs Central Bureau Of Investigation on 5 May, 2009
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.REV.P.340/2008 & CRL.M.A. 7751/2008
Reserved on : 7th February 2009
Date of decision: May 5th 2009
DHARAMBIR KHATTAR ..... PETITIONER
Through:Mr.S.K.Rungta with Ms.Pratiti Rungta,
and Dr.Rekha Dhakar, Advocates.
versus
CENTRAL BUREAU OF INVESTIGATION ..... RESPONDENT
Through :Mr.Dayan Krishnan, Special Public Prosecutor
with Mr.Gautam Narayan, Advocate.
CRL.REV.P.371/2008 & CRL.M.A. 8085/2008
PRADEEP KAPUR & ANR. ..... PETITIONERS
Through : Ms.Neelam Grover, Advocate.
versus
CENTRAL BUREAU OF INVESTIGATION ..... RESPONDENT
Through : Mr.Dayan Krishnan, Special Public
Prosecutor with Mr.Gautam Narayan, Advocate.
CRL.REV.P.380/2008
SUBHASH SHARMA ..... PETITIONER
Through :Mr.S.K.Saxena with
Ms.Manisha Sharma, Advocates.
versus
CENTRAL BUREAU OF INVESTIGATION ..... RESPONDENT
Through : Mr.Dayan Krishnan, Special Public
Prosecutor with Mr.Gautam Narayan, Advocate.
CRL.REV.P.456/2008 & CRL.M.A. 9662/2008
VED PRAKASH ..... PETITIONER
Through : Mr.H.P.Sharma, Advocate.
versus
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Page 1 of 61
CENTRAL BUREAU OF INVESTIGATION ..... RESPONDENT
Through : Mr.Dayan Krishnan, Special Public
Prosecutor with Mr.Gautam Narayan, Advocate.
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
JUDGEMENT
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
S. MURALIDHAR, J.
1. These four Criminal Revision Petitions under Section 397 read with Section
401of the Code of Criminal Procedure, 1973 (CrPC) are directed against order
on charge dated 8th April, 2008 and an order dated 16th April, 2008 passed by
the learned Special Judge, Central Bureau of Investigation (CBI) framing
charges against each of the petitioners, inter alia, for the offences under Section
120-B Indian Penal Code (IPC) read with Sections 8 and 12 of the Prevention of
Corruption Act, 1988 (PCA), under Section 120B IPC read with Sections 7, 8,
13(2), 13(1) (d) PCA and for some of the accused for the substantive offence
under Sections 13 (2) read with 13 (1) (d) PCA.
Background of the Lift Case
2. The present batch of four revision petitions arise from a common charge sheet
filed by the CBI in RC No. 25(A)/2003-CBI/ACB/New Delhi. This concerns the
unauthorised construction of a lift at a commercial complex at Mahavira
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Towers, IIIrd Floor, Paschim Vihar and is hereafter referred to as the `lift case‟.
The FIR in this case was registered on 3rd April 2003 under Sections 7, 13(2)
read with 13(1) (d) PC Act. In this case Subhash Sharma („Sharma‟), the former
Vice-Chairman of the Delhi Development Authority (DDA) is accused No.1,
Dharambir Khattar („Khattar‟) who allegedly worked as a middleman between
public servants and private individuals is accused No.2, Ved Prakash Kaushik
an individual and co-conspirator who helped in liaising with the DDA is
accused No.3, Pradeep Kapur husband of Kavita Kapur, a partner of a firm M/s
APY Hoteliers and Developers is accused No.4. Anil Wadhwa and Yashpal
Manocha, the other two partners of the said firm are accused Nos. 5 and 6
respectively. The gist of the case is that the accused acted in criminal conspiracy
to commit the aforementioned offences whereby Subhash Sharma used his
official position to prevent the demolition of the unauthorised construction of
the lift in the commercial complex and subsequently to get it authorized.
3. The charge sheet in the Lift Case was filed on 15th July 2004. According to
the CBI, the facts and evidence gathered during the investigation revealed
disclosed the commission by the accused of offences punishable under Section
120B IPC read with Sections 7, 8, 13(2) read with 13(1) (d) and Section 15 of
PCA and substantive offences against some of them. By the impugned order on
charge dated 8th April 2008, after discussing the materials gathered by the CBI,
the learned Special Judge, CBI discharged accused Yashpal Manocha and held
that charges for the aforementioned offences should be framed against the
remaining accused. By the subsequent order dated 16th April 2008 the learned
Special Judge framed charges against each of the petitioners for the
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
aforementioned offences.
4. The submissions of Mr.S.K.Rungta, learned Advocate on behalf of
Dharambir Khattar, Mr.S.K.Saxena, learned Advocate on behalf of Subhash
Sharma, Mr.H.P.Sharma, learned Advocate on behalf of Ved Prakash Sharma,
Ms.Neelam Grover, learned Advocate on behalf of Pradeep Kapur and Anil
Wadhwa and Mr.Dayan Krishnan, learned Special Public Prosecutor appearing
for CBI have been heard.
Preliminary objection of the CBI as to maintainability
5. A preliminary objection has been raised by the CBI about the maintainability
of these revision petitions. It is submitted that in terms of Section 19 (3) (c) of
PCA, no Court can exercise the powers of revision in relation to any
interlocutory order passed in any inquiry, trial, appeal or other proceedings by
the trial court. It is submitted that an order holding that charges are required to
be framed against the accused and an order framing charges passed by the
Special Court under the PCA are interlocutory orders against which no revision
would lie to the High Court.
6. It is submitted that that while interpreting a similarly worded provision, viz.,
Section 11(1) of the Special Courts Act 1979 (SCA), a Bench of four Judges of
Supreme Court in V.C.Shukla v. CBI (1980) Supp SCC 92 by a 3:1 majority
held that an order framing charges against the accused was not a final order but
an interlocutory one and, therefore, no appeal would lie against such order to the
Supreme Court. A comparison is also drawn with a similarly worded provision,
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Section 34 of the Prevention of Terrorism Act 2002 (POTA) which was
interpreted in State v. Navjot Sandhu (2003) 6 SCC 641 by the Supreme Court.
It was held that in terms of the said provision an interlocutory order of the
Special Court was not appealable to the High Court. It was further held that the
High Court could also not exercise its powers under Articles 226 and 227 of the
Constitution of India or Section 482 CrPC to entertain a petition challenging an
interlocutory order of the Special Court under the POTA.
7. According to learned counsel for the CBI, the opening words of Section 19(3)
PCA indicate that it is a non-obstante clause and, therefore resort cannot be had
to either the CrPC or Section 22 or Section 27 of the PCA to justify the High
Court entertaining a revision petition. He places reliance on the decision of the
Supreme Court in Satya Narayan Sharma v. State of Rajasthan (2001) 8 SCC
607 where in the context of a stay order passed by the Special Court under the
PCA, the scope of Section 19 (3) (c) was explained and it was held that no stay
of the proceedings before the Special Court could be granted even by the High
Court by virtue of the said provision. Reliance is also upon the judgment of a
Division Bench of this Court in Bachraj Bengani v. State 110(2004) DLT 233
where it was held that an appeal could not be filed in terms of Section 34 POTA
against an order framing charges. It was held that even a revision petition would
not lie in the High Court.
Submissions of the petitioners on maintainability
8. The submissions of the learned counsel for the CBI have been countered by
learned counsel for the petitioners accused not only in the present batch of cases
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
but also by counsel who appeared in the connected batch of cases which were
heard along with the present case. While arguments in the lift case were
addressed both on the issues of maintainability as well as on merits, the
arguments in the connected cases were addressed only on the issue of
maintainability.
9. Learned counsel for the accused submit that the judgment in V.C.Shukla
(supra) has no application to the present cases since it was rendered in the
context of Section 11 SCA which is not, according to them, in pari materia
Section 19 (3) (c) PCA. Likewise, it is submitted that the wording of Section 34
POTA is different. It bars appeals and revisions against interlocutory orders as
understood in the context of the POTA. It is submitted that as far as the PCA is
concerned, Section 19 deals essentially with the grant of sanction to prosecute
and the remedy available to a person aggrieved by an order granting sanction.
Thus, the scope of Section 19 (3) (c) PCA cannot be expanded to cover all
orders passed by the trial court at the various stages of the trial. Referring to
Section 22 and 27 of the PCA, it is submitted that each of these provisions has
to be given full effect and the revision petition is, therefore, maintainable
against an order on charge or an order framing charges passed by the Special
Court under the PCA.
10. Counsel for the petitioners submit that in any event an order on charge or an
order framing charge passed by the Special Court under the PCA is not an
interlocutory order. Since the provisions of the CrPC apply to the Special Court
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
under the PCA, the nature of the order on charge has to be understood in the
context of the CrPC. Such an order passed by the criminal court under the CrPC
has been held by the Supreme Court in Madhu Limaye v. State of Maharashtra
(1977) 4 SCC 551 to be a final order that is revisable under Section 397 CrPC.
It is submitted that Section 19 (3) (c) PCA is not intended to curtail the
revisional power of the High Court, which in any event has been preserved by
Section 27 PCA. Reliance is placed by learned counsel for the petitioners on
the judgments in Jarnail Singh v. State of Rajasthan 1992 Cr LJ 810 and two
judgments of the learned Single Judge of the Madras High Court in State v.
Mrs. Renukadevi 1999 Crl LJ 2955 and V.R. Nedunchezhian v. State 2000 Crl
LJ 976.
Comparison of the statutes
11. The contentions of the learned counsel for the CBI about the similarity of
the provisions contained in Section 11 SCA, Section 34 POTA and Section 19
(3) (c) PCA requires to be first dealt with. The said provisions read thus:
"The Special Courts Act, 1979
11. Appeal (1) Notwithstanding anything in the Code, an
appeal shall lie as of right from any judgment, sentence or order,
not being interlocutory order, of a Special Court to the
Supreme Court both on facts and on law.
(2) Except as aforesaid, no appeal or revision shall lie to any
court from any judgment, sentence or order of a Special Court.
(3) Every appeal under this section shall be preferred within a
period of thirty days from the date of any judgment sentence or
order of a Special Court: Provided that the Supreme Court may
entertain an appeal after the expiry of the said period of thirty
days if it is satisfied that the appellant had sufficient cause for
non preferring the appeal within the period of thirty days.
(emphasis supplied)
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
The Prevention of Corruption Act, 1988
19. Previous sanction necessary for prosecution.-
(1)xxxxxxxxxx
(2)xxxxxxxxxx
(3) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),-
(a) No finding, sentence or order passed by a Special Judge
shall be reversed or altered by a Court in appeal, confirmation or
any error, omission or irregularity in, the sanction required under
sub-section (1), unless in the opinion of that court, a failure of
justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the
ground of any error, omission or irregularity in the sanction
granted by the authority, unless it is satisfied that such error,
omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any
other ground and no court shall exercise the powers of revision
in relation to any interlocutory order passed in any inquiry,
trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence
of, or any error, omission or irregularity in, such sanction has
occasioned or resulted in a failure of justice the court shall have
regard to the fact whether the objection could and should have
been raised at any earlier stage in the proceedings.
Explanation.-For the purposes of this section,-
(a) Error includes competency of the authority to grant
sanction;
(b) a sanction required for prosecution includes reference to
any requirement that the prosecution shall be at the instance of a
specified authority or with the sanction of a specified person or
any requirement of a similar nature. (emphasis supplied)
27. Appeal and revision.-Subject to the provisions of this Act,
the High Court may exercise, so far as they may be applicable, all
the powers of appeal and revision conferred by the Code of
Criminal Procedure, 1973 (2 of 1974) on a High Court as if the
court of the Special Judge were a court of Session trying cases
within the local limits of the High Court.
Prevention of Terrorism Act, 2002
34. Appeal.- (1)Notwithstanding anything contained in the
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Code, an appeal shall lie from any judgment, sentence or oral,
not being an interlocutory order, of a Special Court to the High
Court both on facts and on law.
Explanation.-For the purposes of this section, "High Court"
means a High Court within whose jurisdiction, a Special Court
which passed the judgment, sentence or order, is situated.
(2)Every appeal under sub-section (1) shall be heard by a Bench
of two Judges of the High Court.
(3)Except as aforesaid, no appeal or revision shall lie to any court
from any judgment, sentence or order including an interlocutory
order of a Special Court.
(4)Notwithstanding anything contained in sub-section (3) of
Section 378 of the Code, an appeal shall lie to the High Court
against an order of the Special Court granting or refusing bail.
(5) Every appeal under this section shall be preferred within a
period of thirty days from the date of the judgment, sentence or
order appealed from: Provided that the High Court may entertain
an appeal after the expiry of the said period of thirty days if it is
satisfied that the appellant had sufficient cause for not preferring
the appeal within the period of thirty days." (emphasis supplied)
12. A bare perusal of the above provisions reveals their apparent similarity.
While Section 11 SCA and Section 34 POTA bar appeals against an
interlocutory order of the trial court, Section 19 (3) (c) PCA prohibits the
entertaining of revision petitions by the High Court against interlocutory orders
of the Special Court. The second similarity is that each of the provisions begins
with the non obstante clause „Notwithstanding anything contained in the Code
of Criminal Procedure.‟ Clearly the said provision will prevail over any contrary
or inconsistent provision in the CrPC. A look at Section 27 PCA shows that it is
a provision concerning the revisional power of the High Court and it has been
made „subject to the other provisions of the Act‟. Therefore Section 27 PCA is
subject to Section 19 (3) PCA which in turn is unaffected by any contrary
provision in the CrPC. The third similarity is that in none of the statutes is there
a definition of the words `interlocutory order.‟ The said words are not defined
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
even under the CrPC. This Court is therefore unable to accept the submission of
the learned counsel for the accused that Section 11 SCA and Section 34 POTA
are not in pari materia Section 19 (3) PCA.
Is the order on charge and an order framing charge under the PCA an
interlocutory order?
13. The principal question that arises in the context of the preliminary objection
is whether in terms of Section 19 (3) (c) PCA, an order on charge and an order
framing charge is an interlocutory order? In V.C.Shukla the Supreme Court was
called upon to answer a similar question in the context of a similarly worded
Section 11 SCA. Under the SCA the trial court was a Special Court presided
over by a Judge of the High Court. The question was whether an appeal would
lie to the Supreme Court against an order framing charge passed by the Special
Court under the SCA. The question was answered in the negative by a 3:1
majority, with Fazl Ali J., writing the majority opinion for himself and Sen. J.
with Desai J. writing a separate concurring opinion. Singhal, J. dissented.
14. The sheet anchor of the argument on behalf of the appellant in V.C.Shukla
was that the SCA "being a statute in pari materia the Criminal Procedure Code,
the expression used and the meaning of the words employed in the Act must
have the same meaning and signification as used in the various provisions of the
Criminal Procedure Code of 1973..." It was further submitted in that case, as it
is here, that "on a proper construction of Section 11 of the Act, the word
„interlocutory order‟ has been used exactly in the same sense as the same word
has been used in Section 397(2) of the Code." Fazl Ali, J. for the majority (with
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Desai, J. concurring) first went on to discuss the decisions in Amar Nath v.
State of Haryana (1977) 4 SCC 137, Madhu Limaye v. State of Maharashtra
(1977) 4 SCC 551 and S. Kuupuswami Rao v. King AIR 1949 FC 1 and
observed that (SCC, p.104): "the term „interlocutory order‟ used in the Code of
Criminal Procedure has to be given a very liberal construction in favour of the
accused in order to ensure complete fairness of the trial because the bar
contained in Section 397(3) of the Code would apply to a variety of cases
coming up before the courts not only being offences under the Penal Code but
under numerous Acts" and that "the revisional power of the High Court or the
Sessions Judge could be attracted if the order was not purely interlocutory but
intermediate or quasi-final." However, it qualified this by saying: "The same,
however, in our opinion, could not be said of the Special Courts Act which was
meant to cover only specified number of crimes and criminals and the objective
attained was quickest despatch and speediest disposal." The majority then
observed (SCC, p.106):
"we are in complete agreement with the principle, involved in the cases
discussed above, that an order framing charges against an accused
undoubtedly decides an important aspect of the trial and it is the duty of
the court to apply its judicial mind to the materials and come to a clear
conclusion that a prima facie case has been made out on the basis of
which it would be justified in framing charges. The question, however,
with which we are concerned in the present appeal is essentially different.
The order of the Special Judge framing the charge is a reasoned order and
not a mechanical or a casual order so as to vitiate the order of the Special
Judge. In the instant case, we are concerned with a much larger question
viz. whether or not the term "interlocutory order" used in Section 11(1) of
the Act should be given the same meaning as this very term appearing in
Section 397(2) of the Code. In other words, the question is whether
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Section 11(1) of the Act tightens or widens the scope of the term
"interlocutory order" as contained in Section 397(2) of the Code and
as interpreted by this Court in the decisions, referred to above."
(emphasis supplied)
15. While dealing with the said question, the objects of the SCA were examined
and it was concluded that (SCC, p. 111):
"the heart and soul of the Act is speedy disposal and quick dispatch in the
trial of these cases. It is, therefore, manifest that the provisions of the Act
must be interpreted so as to eliminate all possible avenues of delay or means
of adopting dilatory tactics by plugging every possible loophole in the Act
through which the disposal of the case may be delayed. Indeed if this be the
avowed object of the Act, could it have been intended by the Parliament that
while the Criminal Procedure Code gives a right of revision against an order
which, though not purely interlocutory, is either intermediate or quasi-final,
the Act would provide a full-fledged appeal against such an order. If the
interpretation as suggested by the counsel for the appellant is accepted, the
result would be that this Court would be flooded with appeals against the
order of the Special Court framing charges which will impede the progress of
the trial and delay the disposal of the case which is against the very spirit of
the Act. We are of the opinion that it was for this purpose that a non obstante
clause was put in Section 11 of the Act so as to bar appeals against any
interlocutory order whether it is of an intermediate nature or is quasi-final.
The Act applies only to specified number of cases which fulfil the conditions
contained in the provisions of the Act and in view of its special features, the
liberty of the subject has been fully safeguarded by providing a three-tier
system as indicated above."
16. Next, the law on the effect of the non obstante clause in Section11 SCA,
"notwithstanding anything in the Code.." was analysed. The judgment of the
Supreme Court in Aswini Kumar Ghosh v. Arabinda Bose AIR 1952 SC 369
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
and in particular the following opinion of Patanjali Sastri, CJ was noticed (SCC,
p. 113):
"(1) We should exclude the statute concerned from consideration; in the
instant case „The Code‟.
(2) We should construe the words used according to their natural and
ordinary meaning instead of referring to the statute which is sought to be
excluded."
17. Next, the interpretation of the words "interlocutory order" independent of
the interpretation of those words in the context of Section 397 CrPC, was taken
up. In doing so it was noticed that there was a species of an "intermediate
order." It was observed in para 24 (SCC, p.115):
"the essential attribute of an interlocutory order is that it merely decides
some point or matter essential to the progress of the suit or collateral to
the issues sought but not a final decision or judgment on the matter in
issue. An intermediate order is one which is made between the
commencement of an action and the entry of the judgment. Untwalia, J. in
the case of Madhu Limaye v. State of Maharashtra clearly meant to
convey that an order framing charge is not an interlocutory order but is an
intermediate order as defined in the passage, extracted above, in
CORPUS JURIS SECUNDUM, Vol. 60. We find ourselves in complete
agreement with the observations made in CORPUS JURIS SECUNDUM.
It is obvious that an order framing of the charge being an intermediate
order falls squarely within the ordinary and natural meaning of the term
"interlocutory order" as used in Section 11(1) of the Act. WHARTON'S
LAW LEXICON (14th Edn., p. 529) defines interlocutory order thus:
"An interlocutory order or judgment is one made or given during the
progress of an action, but which does not finally dispose of the
rights of the parties."
Thus, summing up the natural and logical meaning of an
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
interlocutory order, the conclusion is inescapable that an order which
does not terminate the proceedings or finally decides the rights of the
parties is only an interlocutory order. In other words, in ordinary
sense of the term, an interlocutory order is one which only decides a
particular aspect or a particular issue or a particular matter in a
proceeding, suit or trial but which does not however conclude the
trial at all. This would be the result if the term interlocutory order is
interpreted in its natural and logical sense without having resort to
Criminal Procedure Code or any other statute." (emphasis supplied)
18. In para 34 of the majority opinion of Fazl Ali, J., the following propositions
were laid down on determining whether an order is an interlocutory or a final
order SCC, p.122):
"34. Thus, on a consideration of the authorities, mentioned above,
the following propositions emerge:
(1) that an order which does not determine the right of the parties
but only one aspect of the suit or the trial is an interlocutory
order;
(2) that the concept of interlocutory order has to be explained in
contradistinction to a final order. In other words, if an order is
not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English courts
and the Federal Court is to see if the order is decided in one way,
it may terminate the proceedings but if decided in another way,
then the proceedings would continue, because, in our opinion, the
term `interlocutory order‟ in the Criminal Procedure Code has
been used in a much wider sense so as to include even
intermediate or quasi-final orders;
(4) that an order passed by the Special Court discharging the
accused would undoubtedly be a final order inasmuch as it finally
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
decides the rights of the parties and puts an end to the controversy
and thereby terminates the entire proceedings before the court so
that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal against an
interlocutory order the accused is not left without any remedy
because in suitable cases, the accused can always move this Court
in its jurisdiction under Article 136 of the Constitution even
against an order framing charges against the accused. Thus, it
cannot be said that by not allowing an appeal against an order
framing charges against the accused. Thus, it cannot be said that
by not allowing an appeal against an order framing charges, the
Act works serious injustice to the accused."
19. Applying the above tests it was held in Para 35 as under (SCC, p.123):
"Applying these tests to the order impugned we find that the
order framing the charges is purely an interlocutory order as
it does not terminate the proceedings but the trial goes on
until it culminates in acquittal or conviction. It is true that if
the Special Court would have refused to frame charges and
discharged the accused, the proceedings would have terminated
but that is only one side of the picture. The other side of the
picture is that if the Special Court refused to discharge the
accused and framed charges against him, then the order would be
interlocutory because the trial would still be alive. Mr. Mridul
tried to repel the argument of the Solicitor-General and explained
the decisions, referred to above, on the ground that the English
decisions as also the Federal Court‟s decisions made the
observations while interpreting the provisions of the Government
of India expressly used. It was urged that the same construction
would not apply to the present case where the word `order‟ is not
qualified by the word `final‟. With due respect to the learned
counsel, in our opinion, the distinction sought to be drawn is a
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
distinction without any difference. This Court as also the Federal
Court have clearly pointed out that so far as the tests to be applied
to determine whether an order is final or interlocutory, apply as
much to a civil case as to a criminal case. Furthermore, as
already indicated, it is impossible to spell out the concept of an
interlocutory order unless it is held in contradistinction to or in
contrast with a final order. This was held in a number of cases a
number of cases referred to, including Madhu Limaye case which
has been expressly stressed by us in an earlier part of the
judgment. For these reasons, therefore, the contention of the
learned counsel for the appellant on this aspect of the matter fails
and is hereby overruled." (emphasis supplied)
20. Ultimately it was held in paras 45, 46 and 47 as under (SCC, pp128-129):
"45. On a true construction of Section 11(1) of the Act and
taking into consideration the natural meaning of the expression
`interlocutory order‟, there can be no doubt that the order framing
charges against the appellant under the Act was merely an
interlocutory order which neither terminated the proceedings nor
finally decided the rights of the parties. According to the test laid
down in Kuppuswami case the order impugned was undoubtedly
an interlocutory order. Taking into consideration, therefore,
the natural meaning of interlocutory order and applying the
non obstante clause, the position is that the provisions of the
Code of Criminal Procedure are expressly excluded by the
non obstante clause and therefore Section 397(2) of the Code
cannot be called into aid in order to hold that the order
impugned is not an interlocutory order. As the decisions of
this court in the case of Madhu Limaye v. State of Maharasthra
and Amar Nath v. State of Haryana were given with respect to the
provisions of the code, particularly Section 397(2), they were
correctly decided and would have no application to the
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
interpretation of Section 11(1) of the Act, which expressly
excludes the provisions of the Code of Criminal Procedure by
virtue of the non obstante clause.
46. We feel that one reason why no appeal was provided against
an interlocutory order like framing of the charges, as construed by
us so far as the Act is concerned, may have been that it would be
against the dignity and decorum of the very high status which the
Special Judge under the Act enjoys in trying the case against an
accused in that the Judge is a Sitting Judge of a High Court and
therefore must be presumed to frame the charges only after
considering the various principles and guide-lines laid down by
other High Courts and this Court in some of the cases referred to
above.
47. Thus, summing up the entire position the inescapable
conclusion that we reach is that given the expression
`interlocutory order' its natural meaning according to the
tests laid down, as discussed above, particularly in
Kuppuswami case and applying the non obstante clause, we
are satisfied that the Act is concerned, it has been used in the
natural sense and not in a special or a wider sense as used by
the Code in Section 397(2). The view taken by us appears to be
in complete consonance with the avowed object of the Act to
provide for a most expeditious trial and quick dispatch of the case
tried by the Special Court, which appears to be the paramount
intention in passing the Act." (emphasis supplied)
21. It may be noticed that in his concurring opinion Desai, J. too concluded that
an order framing charge "would not be an order other than an interlocutory
order. It would be unquestionably an interlocutory order."
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
22. Coming to the present case, this Court has no hesitation in holding that the
ruling in V.C.Shukla in the context of the words „interlocutory order‟ in Section
11 SCA would apply on all fours. As already noticed, there is very little
distinction between Section 11 SCA and Section 19 (3) (c) PCA. The opening
words of Section 19 (3), like Section 11 SCA, constitutes a non obstante clause
that keeps out the CrPC entirely. It evidences the legislative intent not to permit
a revision petition against interlocutory orders passed by the Special Court
notwithstanding the position to the contrary under the CrPC. When the
legislature expressly excludes the applicability of the CrPC by a non obstante
clause, it would not be possible for a Court to overlook it and examine whether
the order on charge is in the context of Section 397 CrPC an order that is subject
to revision. In other words, if one were to accept the arguments of learned
counsel for the accused, then the non obstante portion of Section 19 (3) of the
PCA would be rendered redundant. It must be remembered that this is not a
petition challenging constitutional validity of Section 19 (3) of the PCA. On the
other hand the petitioners are only seeking to interpret Section 19 (3) (c) PCA to
permit a revision petition against an order on charge by the Special Court.
23. The effect of the non-obstante clause in the opening part of Section 19 (3)
was considered by the Supreme Court in Satya Narayan Sharma v. State of
Rajasthan(2001) 8 SCC 607. There the Court was concerned with the question
whether the High Court could have stayed the proceedings before the Special
Court under the PCA in exercise of its powers under Section 482 CrPC
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
notwithstanding Section 19 (3) (c) of the Act. An argument was advanced by
the accused in that case that Section 19 (3) (c) PCA which reads "no court shall
stay the proceedings under this Act on any other ground" would apply only to
proceedings concerning grant of sanction and not to an order granting stay of
the trial itself. It was further argued that the prohibition under Section 19 (3) (c)
applied only to the revisional powers of the High Court under Section 397 CrPC
and not to the powers of the High Court under Section 482 CrPC. These
arguments were negatived by the Supreme Court. A reference was made to
Section 397 CrPC as well as to the non obstante clause. It was explained, thus,
in Para 14 of the said judgment (SCC, pp.612-613):
"It is thus to be seen that this section provides:
(a) that no court should stay the proceedings under the Act on any
ground, and
(b) that no court shall exercise the powers of revision in relation to any
interlocutory order passed in any inquiry, trial, appeal or other
proceedings.
To be noted that (b) above is identical to Section 397(2) of the
Criminal Procedure Code which deals with the revisional power
of the court. If Section 19 was only to deal with revisional
powers then the portion set out in (b) above, would have been
sufficient. The legislature has, therefore, by adding the works
"no court shall stay the proceedings under this Act on any other
ground" clearly indicated that no stay could be granted by use of
any power on any ground. This therefore would apply even when
a court is exercising inherent jurisdiction under Section 482 of the
Criminal Procedure Code."
24. In the present petitions it was urged that notwithstanding the above legal
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
position, the powers of this Court under Article 226 and 227 of the Constitution
and Section 482 CrPC remained untramelled. In other words, it was submitted
that in appropriate cases, the said provisions could be invoked notwithstanding
the statutory bar to challenge an order on revision passed by the Special Court.
In the considered view of this Court, this argument although attractive also does
not survive after the authoritative pronouncement of the Supreme Court in State
v. Navjot Sandhu (supra). There a similar argument raised in the context of
Section 34 POTA was negatived. An order by the Special Judge POTA
regarding call interception was challenged in the High Court by a petition under
Articles 226 and 227 of the Constitution read with Section 482 CrPC. The
Supreme Court held that the High Court ought not to have entertained the
petition at all. It noticed the judgments in Madhu Limaye v. State of
Maharasthra and Satya Narayan Sharma v. State of Rajasthan. It was held
(SCC, p.657):
"Section 482 of the Criminal Procedure Code starts with the words
"Nothing in this Code". Thus the inherent jurisdiction of the High Court
under Section 482 of the Criminal Procedure Code can be exercised even
when there is a bar under Section 397 or some other provisions of the
Criminal Procedure Code. However as is set out in Satya Narayan
Sharma case this power cannot be exercised if there is a statutory bar in
some other enactment. If the order assailed is purely of an interlocutory
character, which could be corrected in exercise of revisional powers or
appellate powers the High Court must refuse to exercise its inherent
power. The inherent power is to be used only in cases where there is an
abuse of the process of the court or where interference is absolutely
necessary for securing the ends of justice. The inherent power must be
exercised very sparingly as cases which require interference would be
few and far between. The most common case where inherent jurisdiction
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
is generally exercised is where criminal proceedings are required to be
quashed because they are initiated illegally, vexatiously or without
jurisdiction. Most of the cases set out hereinabove fall in this category. It
must be remembered that the inherent power is not to be resorted to if
there is a specific provision in the Code or any other enactment for
redress of the grievance of the aggrieved party. This power should not be
exercised against an express bar of law engrafted in any other provision
of the Criminal Procedure Code. This power cannot be exercised as
against an express bar in some other enactment."
25. In Satya Narayan Sharma too a similar argument was rejected. There the
Supreme Court explained (SCC, p.613):
"15. There is another reason also why the submission that Section
19 of the Prevention of Corruption Act would not apply to the
inherent jurisdiction of the High Court, cannot be accepted.
Section 482 of the Criminal Procedure Code starts with the words
"Nothing in this Code". Thus the inherent power can be
exercised even if there was a contrary provision in the Criminal
Procedure Code. Section 482 of the Criminal Procedure Code
does not provide that inherent jurisdiction can be exercised
notwithstanding any other provision contained in any other
enactment. Thus if an enactment contains a specific bar then
inherent jurisdiction cannot be exercised to get over that bar. As
has been pointed out in the case of Madhu Limaye v. State of
Maharashtra, Janata Dal vs. H.S.Chowdhary and Indra Sawhney
v. Union of India the inherent jurisdiction cannot be resorted to if
there was a specific provision or there is an express bar of law.
16. We see no substance in the submission that Section 19 would
not apply to a High Court. Section 5(3) of the said Act shows
that the Special Court under the said Act is a Court of Session.
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Therefore the power of revision and/or the inherent jurisdiction
can only be exercised by the High Court.
17.Thus in cases under the Prevention of Corruption Act, there
can be no stay of trials. We clarify that we are not saying that
proceedings under Section 482 of the Criminal Procedure Code
cannot be adapted. In appropriate cases proceedings under
Section 482 can be adapted. However, even if petition under
Section 482 of the Criminal Procedure Code is entertained, there
can be no stay of trials under the said Act. It is then for the party
to convince the court concerned to expedite the hearing of that
petition. However, merely because the court concerned is not in a
position to take up the petition for hearing would be no ground
for staying the trial even temporarily."
26. In arriving at the above conclusions the Supreme Court took note of the
Statement of Objects and Reasons of the PCA in which it was explained that:
"In order to expedite the proceedings, provisions for day-to-day trial of cases
and prohibitory provisions with regard to grant of stay and exercise of powers of
revision on interlocutory orders have also been included." This completely
answers the argument advanced on behalf of the petitioner Jagdish Chandra in
the connected batch of petitions that Section 19 PCA was to be viewed only in
the context of an order granting or refusing sanction as its heading indicates. In
other words, merely because the heading of Section 19 says "previous sanction
necessary for prosecution,‟ it cannot be understood as permitting revision
petitions to be filed against an order on charge. The scope of Section 19 (3) (c)
does not get limited on account of the heading of the Section.
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
27. In this context, it may also be noticed that there could be in the context of
Section 27 PCA certain orders of the trial court which could be challenged by
way of a revision petition in the High Court. For instance, an order discharging
an accused would be finally determinative of the culpability of the accused.
Such an order cannot be construed to be an interlocutory order. In this context,
it may be recalled that in V.C.Shukla the Supreme Court observed: "that an
order passed by the Special Court discharging the accused would undoubtedly
be a final order inasmuch as it finally decides the rights of the parties and puts
an end to the controversy and thereby terminates the entire proceedings before
the court so that nothing is left to be done by the court thereafter."
28. Further, the opening words of Section 27 PCA are "subject to the provisions
of this Act...." Clearly, therefore, Section 27 PCA would be subject to Section
19 (3) (c). Section 22 only talks of the context in which CrPC would apply
subject to certain modifications. Section 22 (d) PCA reads as under:
"22 (d) in sub-section (1) of section 397, before the Explanation,
the following proviso had been inserted, namely:-
"Provided that where the powers under this section are exercised
by a court on an application made by a party to such proceedings,
the court shall not ordinarily call for the record of the
proceedings,
(a) without giving the other party an opportunity of showing
cause why the record should not be called for; or
(b) if it is satisfied that an examination of the record of the
proceedings may be made from the certified copies."
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
29. The fact that the procedural aspect as regards the hearing of the parties has
been incorporated in Section 22 does not really throw light on whether an order
on charge would be an interlocutory order for the purposes of Section 19 (3) (c)
PCA. A collective reading of the two provisions indicates that in the context of
order on charge an order discharging the accused may be an order that would be
subject-matter of a revision petition at the instance perhaps of the prosecution.
Since all provisions of the statute have to be given meaning, a harmonious
construction of the three provisions indicates that the kinds of orders which can
be challenged by way of a revision petition in the High Court is narrowed down
to a considerable extent as explained in the case of Satya Narayan Sharma. The
overall objective of the PCA is to ensure that multifarious challenges at various
stages which have the effect of slowing down the trial itself should not be
permitted.
30. The judgment of the Full Bench of the Rajasthan High Court in Jarnail
Singh (supra), referred to by the counsel for the petitioners, was rendered in the
context of maintainability of a revision petition before the High Court against an
order framing charges passed by the trial court. It was not a case under the
PCA. The question referred for consideration by the Full Bench was "whether
under Section 397 of the CrPC the expression „interlocutory order‟ covers the
framing of charge during the trial or not." It was in that context that the Full
Bench of Rajasthan High Court distinguished the judgment in V.C.Shukla to
hold that an order on charge in the context of CrPC would not be an
interlocutory order and can be subject-matter of a revision petition under
Section 397(2) CrPC. In the considered view of this Court, this decision cannot
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
help the petitioners. As already pointed out hereinbefore, the question in the
present cases is whether Section 19 (3) (c) excludes the applicability of the
CrPC. In the considered view of this Court, it does.
31. The learned Single Judge of the Madras High Court held in State v. Mrs.
Renukadevi 1999 Cri LJ 2955, that an interlocutory order under the PCA is not
to be confused with an intermediate order which can be passed during the
course of trial or inquiry. Unfortunately even though the attention of the Court
was drawn to the decision in V.C.Shukla, there is no discussion in the entire
judgment of the said. The Court therefore also did not notice the similarity
between Section 19 (3) (c) PCA and Section 11 SCA. A month later the same
learned Single Judge of the Madras High Court delivered the judgment in V.R.
Nedunchezhian v. State (supra). This time the learned Judge quoted a passage
from the judgment in V.C.Shukla (supra) but merely observed that the said
interpretation was given by the Supreme Court in the context of the object of the
SCA. The learned Single Judge again failed to notice the similarity in the
wording of Section 11 SCA with Section 19 (3) PCA. Instead after referring to
the decision in Madhu Limaye it was concluded by the learned Single Judge
that an order on charge under the PCA cannot be held to be an interlocutory
order. With respect to the learned Single Judge, the judgment in
V.R.Nedunchezhian v. State is contrary to V.C.Shukla in terms of which the
words `interlocutory order‟ in Section 19 (3) (c) would include an order on
charge and an order framing charge. In the considered view of this Court, the
said two judgments of the learned Single Judge of the Madras High Court
therefore do not help the petitioners.
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
32. To conclude this part of the discussion it is held that in the context of
Section 19 (3) (c) the words "no Court shall exercise the powers of revision in
relation to any interlocutory order passed in any inquiry, trial ........." includes
an interlocutory order in the form of an order on charge or an order framing
charge. On a collective reading of the decisions in V.C.Shukla and Satya
Narayan Sharma, it is held that in terms of Section 19 (3) (c) PCA, no revision
petition would be maintainable in the High Court against order on charge or an
order framing charge passed by the Special Court.
33. Therefore, in the considered view of this Court, the preliminary objection of
the CBI to the maintainability of the present petitions is required to be upheld.
Nevertheless, this Court proposes to discuss the submissions in the Lift Case on
merits as well since it was argued at length.
Case of the prosecution
34.1 The case of the CBI is that Anil Wadhwa, Yashpal Manocha and Kavita
Kapur, wife of co-accused Pradeep Kapur entered into a partnership agreement
for undertaking the business of running hotels and restaurants in the name of
M/s A.P.Y.Hoteliers & Developers. The principal place of business was 756,
CA Apartments, Paschim Vihar, Delhi. The said firm took on licence basis an
office space no.RMTT-30A on the third floor (above the 2nd floor and below the
terrace) of Rajendra Mahavira Tower-II situated on Plot Nos.32 and 33,
Community Centre, A-Block, Paschim Vihar, New Delhi -110 063 from M/s
Jaina Properties & Finance Ltd. and others.
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
34.2 As per the terms of the licence deed, the total monthly rent was Rs.32,500/-
and the deed was valid for 33 months. It appears that even at the time of
executing the licence deed, it was acknowledged that the licencee proposed to
erect a lift. This is evident from the following clause in the Licence Deed dated
which reads as under:-
"The Licensor had already clarified that there was no permission
for the lift to be installed at any place in the building, from any
Authority whatsoever. Therefore, in case the Licencee desires to
install and operate a lift as mentioned above, for the use of the
premises being licenced, in that event, the Licencee should be
solely responsible to procure all the requisite
permission/sanctions/NOC‟s etc. at its own risks and costs and
should always keep the Licensor and the Owner/Builder harmless
and indemnified in his respect. All expenses incurred for the
installation/operation/maintenance of the said lift or arising out of
the installation/operation of the said lift, should be borne
exclusively by the Licencee only. ............The Licencee should
also ensure that no area belonging to any third
party/owner/builder is used for installing the said
lift..........."
34.3 As per terms of the licence deed, the licencee was also not entitled
to carry out any addition, alteration or construction in the premises. The
licencee also agreed "not to encroach on any common passages, public
corridors and the terrace."
34.4 M/s A.P.Y.Hoteliers & Developers entered into an agreement dated 2 nd
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
November, 2002 with EISA Lifts Pvt. Ltd. for the purpose of erecting the lift at
the cost of Rs.6.70 lakhs and an advance amount of Rs.30,000/- was given to
EISA Lifts Pvt. Ltd. by cheque dated 2nd November, 2002. According to the
CBI, in April 2003 a further sum of Rs.2.50 lakhs was paid. In the second week
of December 2002, M/s A.P.Y.Hoteliers & Developers commenced construction
work for the installation of the lift. The structural and unit work i.e. fabrication
and erection of M.S. lift well which comprised of work up to the platform level
excluding platform machinery was given to M/s Engineers and Contractors.
The videography and photographs taken by the CBI on site in April 2003
revealed the existence of a lift structure erected on the pavement adjacent to Plot
No.32-33, Paschim Vihar, Delhi.
34.5 It appears that on 14th December, 2002, soon after the work on the
construction of the lift commenced, a complaint was made to the SHO, Police
Station Paschim Vihar by M/s Surya Estates Pvt. Ltd. having its office at 30 &
31, Community Centre, Paschim Vihar, New Delhi. A copy of the said
complaint was also endorsed to the Vice Chairman, Delhi Development
Authority (DDA) and Director (Buildings), DDA. On the receipt of the said
complaint the Officer on Special Duty (OSD) to the Vice Chairman, DDA
marked the complaint to the Director (Buildings) (DDA) on 17 th December,
2002. An inspection of the site was undertaken by the DDA Officials on 23 rd
December, 2002. The said Inspection Report, inter alia, noted:
"1. The elevation of the building on plot. 33 is being changed.
2. Projected steel blade on outside of the boundary of the plot at
2nd and 3rd floor.
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
3. Foundation of columns being erected in front of plot no 32 and
33 unauthorisedly on public land to erect some heavy structure on
that, in future."
34.6 In terms of Section 31 of the Delhi Development Authority Act (DD Act),
action was initiated and a `stop construction notice‟ was issued by the DDA on
3rd January, 2003. A copy of the said notice was pasted on the building of M/s
Jaina Properties (P) Ltd. on 8th January, 2003. It must be mentioned at this stage
that the interception of the calls on the phones used by the accused Subhash
Sharma, Vice-Chairman DDA, commenced on 20th December 2002. The first
call to be intercepted, as regards the lift case, was on 14th February, 2003.
34.7 After receipt of the report by the Director (Commercial Land) (CL) along
with photographs, the matter was discussed by Subhash Sharma, with the
Director (Building) and the Director (CL) on 4th and 6th February, 2003. An
order was passed on 6th February, 2003 by Subhash Sharma for removal of the
encroachment. Thereafter the file was sent to the Land Management (LM)
Section when the Deputy Director (DDA) (LM) and his officers took a decision
on 13th February, 2003 that the demolition should be carried out on 27th
February, 2003.
34.8 When M/s A.P.Y.Hoteliers & Developers learnt in the second week of
February 2003 of the proposed demolition, they discussed the matter with one
Ved Prakash Kaushik, a co-accused, who was also known as `Panditji‟. Panditji
claimed that he knew Subhash Sharma and that he could help them. According
to the CBI, although Panditji was an employee of the NDMC, he knew Subhash
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Sharma and had access to him in the DDA. Panditji visited the DDA Office on
14th February, 2003. He informed Subhash Sharma that there was a party who
was willing to spend Rs.20 to 25 lakhs for regularizing the unauthorized
construction in Paschim Vihar. Subhash Sharma is stated to have noted the
name and mobile number of Pradeep Kapur given to him by Panditji.
34.9 On the same day, Subhash Sharma telephonically informed co-accused
Dharambir Khattar,a property dealer, about Panditji‟s visit to him as well as the
willingness of the party to pay Rs.20 to 25 lakhs for regularization of the
unauthorized construction of the lift at Paschim Vihar. He also passed on to
Khattar the name and mobile number of Pradeep Kapur. It appears that
Dharambir Khattar had provided to Subhash Sharma the mobile telephone of his
wife Smt.Nirmal Rani with the office address of Dharambir Khattar at 431,
Mathura Road.
34.11 On 14th February, 2003 itself at about 9 pm, Khattar contacted Pradeep
Kapur and gave his address to the latter. Between 15th to 20th February, 2003,
Pradeep Kapur spoke frequently to Panditji. On 20th February, 2003, Pradeep
Kapur, Yashpal Manocha and Anil Wadhwa proceeded to DDA Office with
Panditji in Pradeep Kapur‟s vehicle. However, they were unable to meet
Subhash Sharma. Nevertheless, Panditji met Subhash Sharma at the latter‟s
office and reiterated to him that the party was willing to spend at least Rs.20 to
25 lakhs to get the unauthorized construction regularized. Subhash Sharma then
informed Panditji that the engineers involved would do the work only after
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
taking some bribe money and claimed that he could not help. It is stated that on
the night of 20th February, 2003, Subhash Sharma called Dharambir Khattar
informing him of Panditji‟s visit and their conversation. Khattar was advised to
contact one Ahuja who was the concerned Executive Engineer of the area and to
offer him Rs.2 to 4 lakhs to give a favourable report. It is stated that the diary
recovered from Panditji shows an entry on 21 st February, 2003 to the effect that
"in the evening Pradeep Kapur also visits to discuss about the DDA land but
assures to do so in this way we settled account."
34.12 On 24th February, 2003, Subhash Sharma spoke to Dharambir Khattar on
the telephone enquiring if there had been any negotiation with Pradeep Kapur.
Khattar informed Subhash Sharma that Pradeep Kapur was not interested in
negotiating. Subhash Sharma then informed Dharambir Khattar that 27 th
February, 2003 had been fixed for demolition pursuant to the orders passed to
that effect on 6th February, 2003. On the advice of Subhash Sharma, Khattar
called up Pradeep Kapur immediately and informed him about the demolition
programme fixed for 27th February, 2003. This led to Pradeep Kapur speaking to
Panditji soon thereafter. On the night of 25th April, 2003, Subhash Sharma told
Khattar that Panditji had informed him Khattar that Pradeep Kapur was not
willing to negotiate. After collecting Panditji‟s mobile number from Subhash
Sharma, Dharambir Khattar called him up informing him of the impending
demolition fixed for 27th February, 2003. He wanted a meeting on the 26 th
February, 2003 but Panditji declined as he said he was busy for one or two days.
Panditji visited the DDA Office on 26th February, 2003 and spoke to Subhash
Sharma. During the meeting, Subhash Sharma warned Panditji that either party
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
should negotiate else the structure would be demolished the next day i.e. 27 th
February, 2003. This was followed by various calls between Panditji,
Dharambir Khattar, Pradeep Kapur, Anil Wadhwa and Yashpal Manocha in
support of which the mobile telephone records are being relied upon by CBI.
34.13 On 27th February, 2003 at about 11.15 am, a demolition team of LM
Section, DDA headed by Assistant Engineer, Jiten Puri reached Police Station
Paschim Vihar. On learning this, Pradeep Kapur called up Panditji on his mobile
but learnt that the latter was out of station. Pradeep Kapur then called up the
Junior Engineer and requested for Subhash Sharma‟s telephone number.
Thereafter, Pradeep Kapur rang up Subhash Sharma at around 1.44 pm
informing him of the arrival of the demolition team. Subhash Sharma is stated
to have rebuked Pradeep Kapur stating that despite a man being sent, no interest
was shown in negotiating. When Pradeep Kapur informed Subhash Sharma that
no one had contacted him, Subhash Sharma informed Pradeep Kapur that
someone would contact him soon. Thereafter, Pradeep Kapur was asked to
hand over the phone to the in-charge of the demolition team and inform him that
the Vice Chairman was on line. Subhash Sharma then directed Jiten Puri to
return with the demolition team and therefore defer the day‟s programme. Jiten
Puri then immediately called up the DD (LM) to confirm that he had, in fact,
been called by Vice Chairman. One Israr Khan, UDC confirmed the same from
Kishore Singh, Private Secretary to the Vice Chairman. Pradeep Kapur then
called up Subhash Sharma again and informed him that the officials of the
demolition team needed the order to be confirmed from their Supervisory
Officer i.e. DD (LM). On this, Subhash Sharma asked Pradeep Kapur to request
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
the DD (LM) to talk to him. The message was passed on DD (LM) who then
informed his Commissioner (LM) Dharmender, PW-14. In turn, DD (LM) has
ordered by his Commissioner to confirm from Subhash Sharma himself that he
had issued orders for the withdrawal of the demolition party. On such
confirmation, DD (LM) directed Jiten Puri and the demolition team to return.
Subhash Sharma had called up the Commissioner (LM) informing him that he
had recalled the demolition team on the request from Panditji. On returning to
the headquarters, the Assistant Engineer Jiten Puri placed the above facts on file
and submitted the same to the DD (LM) and Commissioner (LM) who further
sent the file to the Vice Chairman for confirmation. The DD entries in the police
station also confirmed the Jiten Puri along with his team had gone to Police
Station Paschim Vihar on 27th February, 2003 for demolition and had returned
on that day itself without carrying out the demolition.
34.14 The call intrercept showed that after receiving the first call from Pradeep
Kapur, Subhash Sharma immediately called up Dharambir Khattar at around
1.45 pm informing him that `liftwala man‟ had called and was begging for their
lives to be saved and that he had told Pradeep Kapur that someone would speak
to Pradeep Kapur rightaway.
34.15 Pradeep Kapur realized that it was Dharambir Khattar who was
functioning as an agent on behalf of Subhash Sharma and called him up and
apologized Dharambir Khattar on the same day at 5.00 pm along with Yashpal
Manocha and Anil Wadhwa at the 431, Mathura Road Office. Dharambir
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Khattar informed them that there were 11 or 12 officials of the DDA who had to
be paid Rs.2 lakhs each since the file had to go to two offices and that the total
deal would work out between Rs.25 to 30 lakhs. On hearing about the huge
amount, Pradeep Kapur, Anil Wadhwa and Yashpal Manocha refused to
negotiate saying that they did not have the capacity for paying such a huge
amount and that they could only pay between Rs.2 to 3 lakhs. They left soon
thereafter. Khattar then called Subhash Sharma and apprised him of the
developments. Later, Panditji offered to go and negotiate for reduction of the
amount with the Vice Chairman and on 4th March, 2003, he met the Vice
Chairman accompanied by Anil Wadhwa. Subhash Sharma then explained that
the money had to be distributed among 11 to 12 officers and that even if each
was to be paid Rs.1 lakh, the total sum worked out between Rs.12 to 13 lakhs.
However, on persuasion of Panditji, the amount was finalized at Rs.10 lakhs.
The above information was passed on to Subhash Sharma by Khattar on the
same day. Khattar then contacted Pradeep Kapur and asked that the
aforementioned amount was finalized with Panditji should be paid so that work
could be done to ensure the regularization of the unauthorized construction as
well as allotment of DDA land for the purposes of the said construction.
Commissioner (LM) and DD (LM) were summoned to the office of the Vice
Chairman, DDA on 6th March, 2003 and were told by Subhash Sharma that the
case of M/s APY Hoteliers and Developers recommended by Panditji and they
were asked if anything could be done with the unauthorized construction. The
DD (LM) told him that in a similar case, many people had lost their lives and
that it was unsafe. Subhash Sharma then rang up Khattar and informed him that
a case had been made out that the lift was unsafe and, therefore, M/s APY
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Hoteliers and Developers should submit an application that the lift would be
used only for the purpose of the building and that the land adjacent to the
building should be allotted. The lift was to be built adjoining the building so
that safety could be ensured. Khattar assured Sharma that the application would
reach the DDA by 7th March, 2003. On this, Sharma gave an assurance that he
would allot space adjacent the building on receiving the application. The CBI
has collected the details of the call intercepts on 6/7 th March, 2003 of the calls
between Pradeep Kapur and Dharambir Khattar. Pradeep Kapur met Dharambir
Khattar on 8th March, 2003 to submit the application along with other papers
and also the money which had been arranged. Khattar assured him that the
application would be submitted by 10th March, 2003. A note was initiated in the
file on 11th March, 2003 by Subhash Sharma addressed to the Commissioner
(LD) enclosing the application of M/s APY Hoteliers and Developers in
connection with the allotment of land adjoining the building for the purpose of
installation of the lift. Subhash Sharma desired that the case would be examined
and sought information whether DDA could consider his request. The certificate
obtained by Pradeep Kapur from the lift maker assuring the safety of the lift was
also enclosed.
34.16 On 17th March, 2003, Subhash Sharma discussed the lift matter with
Director (CL) and Director (Building) alongwith JD(Building). They informed
Subhash Sharma that the space could not be allotted to M/s A.P.Y.Hoteliers &
Developers on licence basis. The DDA (CL) submitted his report on the note
initiated by Subhash Sharma. This report dated 11/12th March, 2003 mentioned
that the construction was on public land without prior permission and for
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
specific personal use which was illegal and may set a precedent for the future.
He recommended immediate removal of the construction. With this note, he
apprehended that he may be posted out since the note was not favourable to M/s
APY Hoteliers and Developers. With such a note, Subhash Sharma could not
found any grounds to regularize the unauthorised structure. He had to agree to
removal of the structure on 26th March, 2003.
35. The RC was registered by the CBI in the Lift Case on 3 rd April 2003 on the
basis of „source information.‟ The charge sheet was filed on 15th July 2004
along with the documents. A question arose whether the accused would be
entitled to be supplied the copies of the call intercepts on the hard discs of the
computers in the CBI‟s office. This issue came to be decided by a judgment
dated 11th March 2008 passed by this Court in Crl.M.C. No. 1775 of 2006
[Dharambir v. Central Bureau of Investigation 148 (2008) DLT 289] directing
supply of the copies of the call records and playing of the original recording
from the hard discs. A time schedule was also set down in the said judgment for
the completion of the arguments and orders on charge. The learned Special
Judge has pronounced the impugned orders on charge within the time schedule
stipulated by this Court. This Court has already held the revision petitions not to
be maintainable and is proceeding to consider the arguments on merits hereafter.
Submissions on merits on behalf of the petitioners
36. As regards, Dharambir Khattar, the arguments advanced by learned counsel
were as under:
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
(i) The procedure outlined in CBI Manual as regards `source information‟
has not been complied with in the present case. Accordingly, it submitted
that the entire investigation is flawed. The registration of the FIR without
following the prescribed procedure and the consequent filing of a charge
sheet stands vitiated. Reliance was placed on the decisions of the
Supreme Court in Vineet Narain v. Union of India (1998) 1 SCC 226,
A.Nallasivan v. State of Tamil Nadu 1995 Crl LJ 2754 and P.Sirajuddin
v. State of Madras AIR 1971 SC 520.
(ii) The FIR was registered belatedly. If in fact the CBI knew of the
commission of the offence from the date of interception of the first call in
the lift case on 14th February 2003, it ought not to have waited till April,
2003 to register the FIR. Rference was made to the decision in
P.Sirajuddin v. State of Madras (1970) 1 SCC 595.
(iii) The intercepted calls do not indicate any criminal conspiracy between the
parties. The statement of the Investigating Officer Shri M.C.Kashyap
also showed `beyond doubt‟ that the CD containing the calls "were
doctored to the disadvantage of the petitioner". Reliance was placed on
the judgment in Mahabir Prasad v. Surinder Kaur AIR 1982 SC 1043
and the judgment of the Division Bench of this Court in State v. Ravi @
Munna 82 (1999) DLT 730 to contend that a duplicate copy of the
recorded conversation could not be a valid piece of evidence and ought
not to be relied upon for framing charges against the accused. It was
submitted that reliance placed by the learned Special Judge on the CFSL
report also was erroneous. The judgments of this Court in Rakesh Bisht
v. Central Bureau of Investigation in Crl.Rev.P.461/2006 and of the
Supreme Court in Union of India v. Prakash P.Hinduja 2003(6) SCC
195 and State of Haryana v. Jagbir Singh JT 2003 (Suppl.2) SC 393
were referred to.
(iv) It was contended that offence of criminal conspiracy was not even prima
facie made out as far as Dharambir Khattar is concerned. Calls were made
to Khattar by Subhash Sharma and not the other way round. Therefore, the
argument meeting of minds for the purposes of entering into a criminal
conspiracy was absent. Reference was made to the judgments of the
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Division Bench of the Himachal Pradesh High Court Hari Ram v. State of
Himachal Pradesh 1982 Crl LJ 294 and K.R. Purushothaman v. State of
Kerala (2005) 12 SCC 631.
37. The contentions on behalf of the Subhash Sharma were as under:
(1) The FIR covered incidents up to 27th February 2003 and the last
telephonic call was dated 20th March 2003 and the FIR was registered on
3rd April 2003. It is stated that the demolition order was passed on 26 th
March 2003 and there were certain developments after 27th March 2003
which were in the knowledge of the CBI but not disclosed in the FIR. It is
pointed out that there were three more cases against Subhash Sharma,
namely, DLF case, Shameet Mukerjee case and the Modern School case.
The FIRs were registered at three different branches of the CBI. The
question posed was if the branches of the CBI are a police station, then
there is no explanation why four cases have been registered at 4 police
stations when the offence in fact emanates under the territorial
jurisdiction of the police station under which the DDA office falls.
(2) The last of the FIRs was registered on 29 th April 2003. In the
Shameet Mukerjee case, the hard disc was required to be sealed
immediately following the procedure outlined in the CBI Manual as the
evidence would otherwise become suspect. Reliance is placed on the
judgment in Chandra Kant Ratilal Mehta v. State of Maharashtra 1993
CrlJ 2863 (Bom). The hard disc was sealed only on 7 th June 2003
whereas the sample voice of the petitioner was taken in April 2003.
Therefore, it is possible that the voice attributed to the petitioner "may
have been planted/fed from the sample voice available." The Andhra
Pradesh Forensic Science Laboratory (APFSL) did not give any
certificate that the hard disc was undoctored and unedited or not
tampered.
(3) The transcript of the alleged telephonic conversations between
Subhash Sharma and the Dharambir Khattar indicate that there was no
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
agreement to accept any bribe or cause any pecuniary advantage either to
the Subhash Sharma or anyone else. Under Section 10 Evidence Act
anything said done or written by one conspirator against the other would
become admissible only if there were reasonable grounds to believe that
two or more persons have conspired together. The reasonable ground can
be established or inferred from any evidence/circumstance other than the
disputed one. Since no such evidence or circumstance exists, the
telephonic conversation between the accused persons cannot be read
against the petitioner and therefore the charge of criminal conspiracy
under Section 120B IPC should fail. Reliance is placed upon the
judgment in L.K. Advani v. CBI 1997 CRLJ 2559 and State of Tamil
Nadu v. Nalini 1999 CRLJ 3124.
(4) It is further submitted that there is no physical manifestation of the
conspiracy. Although the petitioner has been charged with having
accepted a pecuniary advantage of Rs. 10 lakhs from APY Hoteliers,
there is no evidence to establish the same and therefore the charge under
Section 13(2) read with 13 (1)(d) PC Act is also not made out. Reliance is
placed on the judgment in Alpana Dass v. CBI 132 (2006) DLT 85.
38. On behalf of Pradeep Kapur and Anil Wadhwa, it was submitted as under:
(a) APY Hoteliers and Developers were only tenants in the property for a
limited period of 33 months. The total cost of installation of the lift was
for a sum of Rs. 6.70 lakhs and therefore the question of paying Rs.10
lakhs as bribe was highly improbable.
(b) The learned Special Judge has discharged Yashpal Manocha the co-
accused in the case. Pradeep Kapur is in the same position as Yashpal
Manocha.
(c) The intercepted calls did not show the involvement of the petitioner at
all and the particular conversations between the petitioner No.1 and other
co-accused do not show him as being part of any criminal conspiracy.
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
The conversations on the other hand show that the petitioner has never
agree to join the conspiracy and showed no keenness in contacting
accused Nos.1 and 2, i.e., Subhash Sharma and Dharambir Khattar. On
the other hand it was Subhash Sharma and Khattar who were pursuing the
petitioner for a bribe and not vice-versa.
(e) There was no telephonic conversation between Subhash Sharma and
Pradeep Kapur and also no transcript of the same. The petitioners are
alleged to have telephoned R.S. Yadav, Junior Engineer of the DDA to
take the telephone number of Subhash Sharma and that is on 27 th
February 2003. This itself shows that they could not have been in
conspiracy with Subhash Sharma. The manner of recording of the
telephonic conversation and non-supply of the hard disc on which they
were copied are secondary evidence and not admissible under Section
65B Evidence Act. Further there were discrepancies in the duration of the
calls shown in the transcript submitted by the telephone companies.
(f) It is submitted that Section 5(2) read with Rule 419A of the Indian
Telegraph Act have not been complied with in letter and spirit and in any
event the provisions are themselves unconstitutional and violative of
Articles 14, 19 and 21 of the Constitution of India.
(g) Although the prosecution has relied upon 26 calls in the charge sheet,
CDs delivered to the petitioner contained only 25 calls. The call dated 4 th
March 2003 is missing.
(h) It is submitted that the learned Special Judge has erred in framing
charging against the petitioners under Section 8 PC Act when they were
not instrumental in obtaining/accepting illegal gratification from the firm.
(i) It is submitted that the entire case of the prosecution is based on the
intercepted telephone calls which by themselves could not form the basis
for conviction. It is submitted that there is no other corroborative piece of
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
evidence that can link the petitioners with the crime.
(j) It is submitted that if there was any conspiracy as alleged then Subhash
Sharma would not have given orders on 26th March 2003, for the second
time for demolition of the lift.
39. The contentions on behalf of Ved Prakash are as under:
(a) It is not in dispute that the Ved Prakash (Pandit ji) was himself not an
employee of the DDA and was perhaps helping out Subhash Sharma in
some of his private religious matters. He was in close with the Dharambir
Khattar as well.
(b) The sanction order had been issued without any application of mind.
(c) Just like Subhash Sharma, it is argued by learned counsel for Ved
Prakash that his voice on the tapes could have been doctored. It is
submitted that the entire prosecution against him is mala fide object of
which among the intercepted telephonic conversations are those between
Subhash Sharma on the one hand and Dharambir Khattar on the other and
then the petitioner and Khattar.
(d) Reliance is placed on the judgment of Century Spinning Mills v.
State of Maharashtra (1972) 3 SCC 282, State of UP v. Dr. Sanjay
Singh 1994 Supp (2) SCC 707 to contend that there is nothing to charge
the petitioner with the offence of criminal conspiracy involving the other
accused.
40. On the call intercepts, although a separate writ petition is stated to have
been filed by Khattar and, therefore, arguments were not addressed on that
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
aspect by his counsel, the other accused did raise the grounds to that effect in
their respective memorandum of revision petition but did not urge this point
during the course of arguments. Be that as it may, this Court has in Dharambir
Khattar v. CBI 148 (2008) DLT 289 already dealt with the question of the
certification needed in terms of Section 65 B Evidence Act for the purposes of
authentication of the copies of the call intercepts. It may be noticed that it was
not suggested in the present petitions that the sanction for carrying out the call
intercept was wrongly granted or in violation of the provisions of Telegraph
Act.
Submissions on merits by the CBI
41.1 In reply, it is submitted on behalf of the CBI that the scope of interference
by the Court with an order framing charges is limited. At the stage of charge the
Special Court was only to determine if the material brought on record made out
a case of strong suspicion against each of the accused and in the present case
there were sufficient materials on record to enable the court to come to such
conclusion. Reference is made to the judgments in Indu Jain v. State of
Madhya Pradesh (2008) 15 SCALE 168, Bharat Parikh v. C.B.I. (2008) 10
SCALE 86, Hem Chand v. State of Jharkhand 2008 (3) SCALE 598, Soma
Chakravarty v. State (2007) 5 SCC 403, State of Maharashtra v. Salman
Salim Khan (2004) 1 SCC 525, State of Bihar v. Ramesh Singh (1977) 4 SCC
39, Superintendent And Remembrancer of Legal And West Bengal v. Anil
Kumar Bhunja (1979) 4 SCC 274.
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
41.2 As regards the question of previous sanction necessary for prosecuting the
accused, it is submitted that the absence of sanction and the effect it has on the
validity of the trial, are matters that are to be examined at the time of a trial
itself. The trial need not wait only because of want of sanction. Reliance is
placed on the judgment in Prakash Singh Badal v. State of Punjab (2007) 1
SCC 1 and Lalu Prasad v. State of Bihar (2007) 1 SCC 49. Reliance is also
placed on the judgment in Paul Verghese v. State of Kerala (2007) 5 SCALE
540 which holds that even if the wrong authority granted sanction that would
not call for interference unless there was a failure of justice. The expression
`failure of justice‟ as explained by the Supreme Court in State v. T.Venkatesh
Murthy (2004) 7 SCC 763 would not cover a situation comparable with that on
hand.
41.3 On behalf of the CBI, it is pointed out that the question as to when the
prosecution should register an FIR is entirely in the discretion of the prosecution
itself. The FIR is not to be read as an encyclopedia and therefore all ingredients
of the offence need not be mentioned therein. Reference has been made to the
judgment in Supdt. of Police, CBI v. Tapan Kumar Singh (2003) 6 SCC 175.
As regards the delay in registering the FIR, the CBI refers to the judgment in
Apren Joseph v. State of Kerala (1973) 3 SCC 114 wherein it has been held
that the mere delay in lodging the FIR with the police is not always fatal to the
prosecution. As to whether the delay was reasonable or not would depend on the
facts of every case.
41.4 As regards the tapes and transcripts, it is submitted that the allegation that
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
the voice of any of the petitioners may have been planted from the sample voice
is one of sheer desperation. At the present stage of the case when the trial is yet
to commence, this Court is only called upon to examine if there was material on
record which created a strong suspicion against the petitioner. With reference
to the roles of Khattar, Subhash Sharma, Pradeep Kapur and Ved Prakash the
call intercepts clearly indicate that they were in criminal conspiracy to commit
the offences in question. It is submitted that the conversations recorded in the
tapes constituted sufficient material. Whether in fact the tapes have been
doctored as alleged by the accused can only be demonstrated at the trial. The
reliability of the evidence need not be gone into at this stage.
41.5 It is pointed out by the learned counsel for the CBI that the submission of
the petitioners based on Section 10 Evidence Act is erroneously premised on the
footing that there is no evidence other than the telephonic conversations to bring
home the charge. Reference is made to the notings in the file which themselves
would show that the petitioner Subhash Sharma took undue interest in the case
and interfered in the demolition action concerning the lift. The officers of the
DDA examined by the CBI have spoken of the circumstances under which the
petitioner interfered with the decision taken to demolish the lift.
41.6 As regards Pradeep Kapur and Anil Wadhwa it is submitted that these
petitioners knew very well that the licence agreement with the landlord did not
permit APY Hoteliers to erect a lift on public land and that too without prior
sanction of the DDA. It is plain that without waiting for the sanction of the
DDA to erect a lift in the commercial complex which would be undoubtedly an
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
encroachment/taking over of public land, APY Hoteliers went ahead with the
construction of the lift. The petitioners therefore knowingly committed an
illegal act and therefore could not escape the consequences.
41.7 As regards Ved Prakash, it is submitted that whether in fact he was
involved in the negotiations that took place between Subhash Sharma on the one
hand and Dharambir Khattar on the other will emerge only during the trial when
evidence is led by the prosecution. As of now, the court has only to see whether
there is sufficient material to draw a strong suspicion against the petitioner for
the commission of the offence.
Scope of the petitions challenging the order on charge
42.1 The scope of the present proceedings which invoke the revisional
jurisdiction of this Court to examine the validity of an order on charge on merits
is fairly well settled. The trial court has, at the stage of the charge, to satisfy
itself whether there is sufficient ground for proceedings against the accused. The
veracity and the effect of the evidence which the prosecution proposes to
adduce, is not to be meticulously examined at this stage. In other words, the
probative value of the material on record cannot be looked into. The trial judge
should proceed on the footing that the material brought on record by the
prosecution "has to be accepted as true at that stage." [see Soma Chakravarty v.
State (2007) 5 SCC 403 @ p.408 para 10].
42.2 In State of Bihar v. Ramesh Singh (1977) 4 SCC 39 it was observed as
under (SCC @ p.41):
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
"At that stage the Court is not to see whether there is sufficient
ground for conviction of the accused or whether the trial is sure to
end in his conviction. Strong suspicion against the accused, if the
matter remains in the region of suspicion, cannot take the place of
proof of his guilt at the conclusion of the trial. But at the initial
stage if there is a strong suspicion which leads the Court to think
that there is ground for presuming that the accused has committed
an offence then it is not open to the Court to say that there is no
sufficient ground for proceeding against the accused."
42.3 The above position has been reiterated in several judgments including Indu
Jain v. State of Madhya Pradesh 2009 CriLJ 951, Bharat Parikh v. CBI
(2008) 10 SCC 109, Hem Chand v. State of Jharkhand (2008) 5 SCC 113,
State of Maharashtra v. Salman Salim Khan (2004) 1 SCC 525,
Superintendent And Remembrancer of Legal Affairs, West Bengal v. Anil
Kumar Bhunja (1979) 4 SCC 274.
42.4 Further in Sheonandan Paswan v. State of Bihar (1987) 1 SCC 288 it was
observed in para 88 as under (SCC @ p. 355):
"88. While considering the legality, propriety or the correctness of
a finding or a conclusion normally, the revising court does not
dwell at length upon the facts and evidence of the case. The court
in revision considers the materials only to satisfy itself about the
correctness, legality and propriety of the findings, sentence or order
and refrains from substituting its own conclusion on an elaborate
consideration of evidence."
42.5 Therefore, in the present petitions this Court is only to determine whether
the impugned orders of the learned Special Judge framing charges against the
petitioners satisfies the above requirement of the law.
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Sanction to prosecute
43.1 On behalf of Subhash Sharma and Ved Prakash submissions were made
about the absence of sanction under Section 197 CrPC to prosecute them. It was
also submitted that the order granting sanction under Section 19 PCA was
without application of mind.
43.2 Under Section 19(1)(a) no court can take cognizance of an offence
punishable under Sections 7, 10, 11 and 13 PCA alleged to be have been
committed by a public servant except with the previous sanction of either the
Central Government or the State Government or the competent authority as the
case may be.
43.3 It requires to be noticed that in Prakash Singh Badal v. State of Punjab
(2007) 1 SCC 1 @ p. 37 it was pointed out that "there is a distinction between
the absence of sanction and the alleged invalidity on account of non application
of mind. The former question can be agitated at the threshold but the latter is a
question which has to be raised during trial."
43.4 In Lalu Prasad v. State of Bihar (2007) 1 SCC 49, the question as to the
sanction under Section 197 CrPC and the one under Section 19 PCA was
explained in para 10 (SCC @ p. 54):
"10. It may be noted that Section 197 of the Code and Section 19 of
the Act operate in conceptually different fields. In cases covered
under the Act, in respect of public servants the sanction is of
automatic nature and thus factual aspects are of little or no
consequence. Conversely, in a case relatable to Section 197 of the
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Code, the substratum and basic features of the cases have to be
considered to find out whether the alleged act has any nexus with
the discharge of duties. Position is not so in case of Section 19 of
the Act."
43.5 In the present case applying the tests propounded by the Supreme Court in
the aforementioned judgments, it cannot be said that the acts performed either
by Subhash Sharma or Ved Prakash had any nexus with the discharge of their
official duties. As far as Ved Prakash is concerned, he was not an employee of
the DDA but of the NDMC. The question of his discharging any official
function on behalf of the NDMC simply did not arise as far as the facts of the
present case are concerned. In the considered view of this Court, there was no
need for the prosecution to have obtained any previous sanction either under
Section 19 PCA or Section 197 CrPC as far as Ved Prakash was concerned.
43.6 As regards Subhash Sharma, as Vice Chairman, DDA he was entrusted
with the responsibility of ensuring that the objectives of the DD Act are not
contravened. His attempt at stopping the demolition of an unauthorised lift was
contrary to the very object of the DD Act which was to prevent unplanned
development and the construction of buildings in contravention of the Master
Plan for Delhi (MPD) or the lay-out or sanctioned building plan as the case may
be. Clearly, the acts with which he is charged, were not performed in the
discharge of his official duties as Vice Chairman, DDA. This Court has perused
the sanction granted under Section 19 PCA to prosecute Subhash Sharma. It
adverts to the materials available to the authority. It cannot be said that the said
order granting sanction is vitiated by non-application of mind.
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
43.7 It was submitted on behalf of the CBI that no ground has been raised by
Subhash Sharma that since the authority not empowered to do so has granted
sanction, there has been a failure of justice. The position has been explained in
Paul Varghese v. State of Kerala AIR 2007 SC 2618 as under:
"8. The effect of sub-sections (3) and (4) of Section 19 of the Act is
of considerable significance as noted in Prakash Singh Badal v.
State of Punjab (2007) 1 SCC 1. In sub-section (3) the stress is on
"failure of justice" and that too "in the opinion of the Court". In
sub-section (4), the stress is on raising the plea at the appropriate
time. Significantly, the "failure of justice" is relatable to error,
omission or irregularity in the sanction. Therefore, mere error,
omission or irregularity in sanction is considered fatal unless it has
resulted in failure of justice or has been occasioned thereby.
Section 19(1) is a matter of procedure and does not go to root of
jurisdiction. Sub-section (3)(c) of Section 19 reduces the rigour of
prohibition. In Section 6(2) of the Prevention of Corruption Act,
1947 (hereinafter referred to as the 'Old Act') corresponding to
Section 19(2) of the Act, question relates to doubt about authority
to grant sanction and not whether sanction is necessary."
43.8 As regards the non-application of mind by the sanctioning authority, the
Supreme Court has in State (NCT of Delhi) v. Navjot Sandhu (2005 ) 11 SCC
600 has held that this is really a question of evidence by examining as a witness
the authority who passed the order.
43.9 There is merit in the contention of the learned counsel for the CBI that the
sanction under Section 197 CrPC is actually not required when the offences
committed are under the PCA. It is submitted that a criminal conspiracy to
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
commit an offence under the PCA cannot be cloaked with any immunity by
requiring prior sanction to be obtained under Section 197 CrPC for prosecuting
a public servant accused for such offences. In H.H.B. Gill v. The King AIR (35)
1948 Privy Council 128, it was observed in para 30 as under:
"30. A public servant can only be said to act or to purport to act in
the discharge of his official duty, if his act is such as to lie within
the scope of his official duty. Thus a Judge neither acts nor
purports to act as a Judge in receiving a bribe, though the judgment
which he delivers may be such an act: nor does a Government
medical officer act or purport to act as a public servant in picking
the pocket of a patient whom he is examining, though the
examination itself may be such an act. The test may well be
whether the public servant, if challenged, can reasonably claim
that, what he does, he does in virtue of his office. Applying such a
test to the present case, it seems clear that Gill could not justify the
acts in respect of which he was charged as acts done by him by
virtue of the office that he held. Without further examination of the
authorities their Lordships, finding themselves in general
agreement with the opinion of the Federal Court in the case cited
think it sufficient to say that in their opinion no sanction under
s.197, Criminal P.C., was needed."
43.10 Likewise in Harihar Prasad v. State of Bihar (1972) 3 SCC 89 it was
held in para 66 as under:
"As far as the offence of criminal conspiracy punishable under
section 120-B read with Section 409, Indian Penal Code is
concerned and also section 5(2) of the Prevention of Corruption
Act, are concerned they cannot be said to be of the nature
mentioned in Section 197 of the Code of Criminal Procedure. To
put it shortly, it is no part of the duty of a public servant, while
discharging his official duties, to enter into a criminal conspiracy or
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
to indulge in criminal misconduct. Want of sanction under Section
197 of the Code of Criminal Procedure is, therefore, no bar."
43.11 The matter can be looked at from another angle as well. The petitioners
have been charged with the offence of criminal conspiracy under Section 120B
IPC. Under Section 3 PCA, the Special Judge is empowered to try not only "any
offence punishable under this Code" but under Section 3(1)(b) "any conspiracy
to commit or attempt to commit or any abetment of the offences specified in
clause (1)."
43.12 Under Section 40 IPC, it has been mentioned that in Chapter VA and in
Sections 109, 110 IPC the word "offence" denotes a thing punishable under this
Code, or under any special or local law as hereinafter defined." Under Section
41 IPC, a special law has been defined as "a law applicable to a particular
subject." Therefore, in terms of Sections 40 and 41 IPC, the PCA would be a
special law. The offence under Section 120B in Chapter VA IPC would
therefore also become punishable under the PCA which is a special enactment
for that purpose. Once the sanction under Section 19 PCA has been obtained,
there is no need to obtain a separate sanction under Section 197 CrPC for
prosecuting the petitioners for the offence under Section 120B IPC.
43.13 The learned counsel for the CBI has made a reference to the judgment of
the Full Bench of the Allahabad High Court dated 25th January 2006 passed in
Crl. Rev. (P) No. 2282/04 (titled Neera Yadav v. CBI) where the Court
negatived the contention of the accused in those cases that the sanction both
under Section 197 CrPC as well as under Section 19 PCA was necessary for
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
prosecuting them under Section 13 PCA. A reference was made by the Full
Bench of the Allahabad High Court to the decisions of the Supreme Court in
Harihar Prasad v. State of Bihar 1972 (3) SCC 89 and Kalicharan
Mahapatra v. State of Orissa AIR 1998 SC 2595.
43.14 For all of the aforementioned reasons, there is no merit in the contention
that there is any defect in the order granting sanction to prosecute Subhash
Sharma or Ved Prakash.
Delay in registering the FIR
44.1 This court finds merit in the contention of the CBI that it is entirely up to
the CBI to decide when it should register FIR. After the decision in P.
Sirajuddin etc. v. State of Madras AIR 1971 SC 520, it cannot be said that the
time taken by the CBI to make some sort of a preliminary enquiry before
proceeding to register an FIR can be fatal to the prosecution itself. As regards
the allegations concerning the functioning of a public servant, it is entirely up to
the CBI to take a decision as to when it should move in to register the FIR. In
the facts of the present case, it cannot be said that the CBI acted malafide in
registering the FIR only in April 2003. It has been held in Tapan Kumar Singh
in para 20 as under (SCC @ p.183):
"20. It is well settled that a First Information Report is not an
encyclopedia, which must disclose all facts and details relating to
the offence reported. An informant may lodge a report about the
commission of an offence though he may not know the name of the
victim or his assailant. He may not even know how the occurrence
took place. A first informant need not necessarily be an eye witness
so as to be able to disclose in great details all aspects of the offence
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
committed. What is of significance is that the information given
must disclose the commission of a cognizable offence and the
information so lodged must provide a basis for the police officer to
suspect the commission of a cognizable offence. At this stage it is
enough if the police officer on the basis of the information given
suspects the commission of a cognizable offence, and not that he
must be convinced or satisfied that a cognizable offence has been
committed. If he has reasons to suspect, on the basis of information
received, that a cognizable offence may have been committed, he is
bound to record the information and conduct an investigation. At
this stage it is also not necessary for him to satisfy himself about
the truthfulness of the information. It is only after a complete
investigation that he may be able to report on the truthfulness or
otherwise of the information. Similarly, even if the information
does not furnish all the details, he must find out those details in the
course of investigation and collect all the necessary evidence. The
information given disclosing the commission of a cognizable
offence only sets in motion the investigative machinery, with a
view to collect all necessary evidence, and thereafter to take action
in accordance with law. The true test is whether the information
furnished provides a reason to suspect the commission of an
offence, which the police officer concerned is empowered under
Section 156 of the Code to investigate. If it does, he has no option
but to record the information and proceed to investigate the case
either himself or depute any other competent officer to conduct the
investigation. The question as to whether the report is true, whether
it discloses full details regarding the manner of occurrence,
whether the accused is named, and whether there is sufficient
evidence to support the allegations are all matters which are alien
to the consideration of the question whether the report discloses the
commission of a cognizable offence. Even if the information does
not give full details regarding these matters, the investigating
officer is not absolved of his duty to investigate the case and
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
discover the true facts, if he can."
44.2 Likewise in Apren Joseph v. State of Kerala, it has been held in para 11 as
under (SCC @ p.11):
"11. Now first information report is a report relating to the
commission of an offence given to the police and recorded by it
Under Section 154, Cr. PC. As observed by the Privy Council in
K.E. v. Khwaja AIR 1945 PC 18, the receipt and recording of
information report by the police is not a condition precedent to the
setting in motion of a criminal investigation. Nor does the statute
provide that such information report can only be made by an eye
witness. First information report Under Section 154 is not even
considered a substantive piece of evidence. It can only be used to
corroborate or contradict the informant's evidence in court. But this
information when recorded is the basis of the case set up by the
informant. It is very useful if recorded before there is time and
opportunity to embellish or before the informant's memory fades.
Undue or unreasonable delay in lodging the F.I.R., therefore,
inevitably gives rise to suspicion which puts the court on guard to
look for the possible motive and the explanation for the delay and
consider its effect on the trustworthiness or otherwise of the
prosecution version. In our opinion, no duration of time in the
abstract can be fixed as reasonable for giving information of a
crime to the police, the question of reasonable time being a matter
for determination by the court in each case. Mere delay in lodging
the first information report with the police is, therefore, not
necessarily, as a matter of law, fatal to the prosecution. The effect
of delay in doing so in the light of the plausibility of the
explanation forthcoming for such delay accordingly must fall for
consideration on all the facts and circumstances of a given case."
44.3 Consequently it is held that there is no merit in the contention that the
delay in the FIR being registered renders the investigation invalid.
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
Tapes and transcripts
45.1 This court does not find any merit in the contention that the tapes and
transcripts are unreliable and therefore should not be considered to be as
admissible piece of evidence. As already pointed out hereinbefore, at the present
stage, the Court is not required to go into the veracity of the contents of these
tapes or even the question whether the tapes have been doctored as alleged by
the accused.
45.2 This Court has itself listened to the conversations played in the court by the
learned counsel for the CBI. It cannot be said on listening to these taped
conversations that they prima facie are either doctored or that the voice of any
of the petitioners available in the sample has been planted therein. This is really
the defence of the accused which cannot be considered at this stage. The
accused would have to lead evidence to show that the tapes or the recording of
the conversations was in fact doctored as alleged by them.
45.3 On the admissibility or the validity of the telephonic interceptions, it may
be mentioned that the orders sanctioning the interception have been passed
under Section 5(2) of the Telegraph Act read with Rule 419A thereof. It is
submitted that inasmuch as the present case pertains to the offence of corruption
of senior public servants and therefore jeopardizes the national interests and
public safety, the order for intercepting the telephonic conversations was
perfectly justified. In any event, the present stage is not the one where the
validity or justifications of the authorizations given for intercepting the
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
telephonic calls can be examined. In N. Sri Rama Reddy v. V.V. Giri (1970) 2
SCC 340, it was held that the tape was primary and direct evidence admissible
to show what had been said and picked up by the recorder.
Sufficient material against each of the accused
46. It is not possible to agree with the submissions made on behalf of Khattar
that the intercepted calls do not reflect his involvement in the criminal
conspiracy. The contention that there is no meeting of minds since all the calls
emanated from Subhash Sharma is misconceived. It is also not possible to agree
with the submissions regarding the procedure set out in the CBI manual not
having been followed. Whether in fact any provision of the manual has been
violated would again be a matter of evidence. This certainly cannot vitiate the
trial particularly when CBI has come across solid evidence which raises a strong
suspicion against each of the accused.
47. It is not possible to agree that as soon as the first intercepted call occurred,
the CBI became aware of the entire criminal conspiracy and therefore should
not have waited for registering the RC. It is inconceivable that the CBI would
have known the existence of the conspiracy after the first intercepted call.
Clearly Subhash Sharma had to relent and not persist that withholding of the
demolition after the note on file by the Commissioner (LM). It was only
thereafter that the RC could be registered.
48. As regards the role of Subhash Sharma, this Court has perused the notings
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
on the file. A note was written by the Assistant Engineer stating that he needed
orders for issuing a crane for removal of the unauthorised lift. However, it was
followed by a noting on 27th February 2003 confirming that "telephonic
directions were received from the VC, DDA by me to defer today‟s programme
till further orders. Hence the programme was withdrawn in consultation with
DD (LM) W." The noting of 10th March 2003 shows that the file was placed
before the VC since "the VC desires to discuss this issue." It is plain therefore
that Subhash Sharma was taking undue interest in the case. The noting on 24th
March 2003 is very categorical when the Dy. Director (CL) noted that
permission to allow the lift to come up could be illegal and set the precedent for
future and therefore the DDA should immediately remove the unauthorised
construction. It is not surprising therefore that Subhash Sharma ultimately could
not stop the demolition of the lift in question. That in any event does not dilute
the evidence that is already on record to show that he evinced unusual interest in
preventing the unauthorised lift from being demolished.
49. As regards the physical manifestation of the offence of conspiracy this again
would be a matter for evidence since at this stage all that has to be seen is
whether there is sufficient material to draw a strong suspicion.
50. In the considered view of this Court, there is material to draw such strong
presumption against the Petitioners Pradeep Kapur and Anil Wadhwa. They
cannot claim ignorance of the MPD which did not permit the construction of the
lift on a land not belonging to them. According to the CBI Pradeep Kapur
wanted to present the DDA with a fait accompli to somehow regularize the
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
construction of the lift. He went ahead with the construction without waiting for
any approval. These are the factors that work against Petitioners in entertaining
their plea for discharge. The petitioners‟ case cannot be compared with that of
Yashpal Manocha. These two petitioners were active in pursuing the matter of
installation of the lift and therefore do not stand on the same footing.
51. It was submitted that in the charge framed by the learned Special Judge
there is an obvious error inasmuch as it has been observed therein that "you
accused Pardeep Kapur looking after the affairs on behalf of your wife Kavita
Kapur (partner of M/s APY Hoteliers & Developers) during the period
February/March 2003 at Delhi obtained/accepted illegal gratification from the
firm M/s APY Hoteliers & Developers as a motive for inducing Subash Sharma,
Vice Chairman, DDA, Delhi by corrupt or illegal means to show favour for
stopping demolition proceedings/regularizing unauthorized constructed lift at
Hotel M/s APY Hoteliers and Developers, Paschim Vihar Delhi and thereby
committed an offence punishable under Section 8 of the PC Act and within the
cognizance of this court."
52. As far as this submission is concerned, it does appear that the wording of the
charge is erroneous and contrary to what the case of the prosecution is.
However, this defect in the framing of the charge need not vitiate the trial itself.
Under Section 464 CrPC whenever it appears to the court that the charge has
been erroneously framed that court can alter the charge to make it consistent to
what the case of the prosecution is. By this judgment the CBI is permitted to
draw the attention of the trial court to the error in the charge framed against the
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
petitioners Pradeep Kapur and Anil Wadhwa and ask for appropriate correction.
53. On merits, this Court is not able to come to the conclusion that Pradeep
Kapur or Anil Wadhwa were not involved in the criminal conspiracy to stop the
demolition of the unauthorised lift. Although it may be true that the stand taken
by the APY Hoteliers initially was that the bribe amount demanded was
unreasonable. However, later on it appears that they were desperately looking to
stop the demolition of the unauthorised lift. Pradeep Kapur was certainly in
touch with Ved Prakash (Pandit ji) who in turn was in touch with the other
accused. Merely because there was no alleged conversation between Subhash
Sharma on the one hand and Pradeep Kapur on the other, that cannot lead to the
conclusion that he was not part of the criminal conspiracy.
54. As regards Ved Prakash, the telephonic conversations between him and
Dharambir Khattar, and his meeting with Subhash Sharma put paid to the
contention that he never was and never intended to be the part of the criminal
conspiracy. As regards the actual content of these telephone conversations and
whether they point to the role of the petitioners, this will have to be determined
at the trial. What should be the evidentiary value of these intercepted
conversations is the question that cannot be gone into at the stage of charge. For
this, the evidence will have to be led to show that the petitioner was not part of
the criminal conspiracy at all.
Summary of conclusions
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
55. To summarise the conclusions:
(a) In the context of Section 19 (3) (c) PCA, the words "no Court shall
exercise the powers of revision in relation to any interlocutory order
passed in any inquiry, trial ........." includes an interlocutory order in the
form of an order on charge or an order framing charge. Therefore, in
terms of Section 19 (3) (c) PCA, no revision petition would be
maintainable in the High Court against order on charge or an order
framing charge passed by the Special Court.
(b) There is no merit in the contention that there is a defect in the orders
granting sanction to prosecute Subash Sharma or Ved Prakash. There was
no need for the prosecution to have obtained any previous sanction either
under Section 19 PCA or Section 197 CrPC as far as Ved Prakash was
concerned. As regards Subash Sharma the acts with which he is charged,
were not performed in the discharge of his official duties as Vice
Chairman, DDA. The said order granting sanction to prosecute him is not
vitiated by non-application of mind.
(c) There is no merit in the contention that the delay in the FIR being
registered renders the investigation invalid.
(d) The questions concerning the validity of the tapes and transcripts of
the intercepted conversations, or their admissibility cannot be decided at
this stage and will necessarily have to be determined only at the stage of
trial.
Crl.Rev.P.Nos.340/08, 371/08, 380/08, 456/08
(e) The defect in the framing of the charge against Pradeep Kapur and
Anil Wadhwa does not vitiate the trial. Under Section 464 CrPC it is
possible for such defect to be rectified. The CBI is permitted to draw the
attention of the trial court to the above error in the charge framed and ask
for it to be corrected.
(f) On merits, there is sufficient material on record to hold that there is
grave suspicion against each of the petitioners for the commission of the
offences with which they have been charged.
56. The observation made in this judgment on merits is in the context of
examining whether there is sufficient material against each of the accused to
raise a strong suspicion of their having committed the offences in question. The
said observations are not intended to influence the findings to be arrived at by
the trial court upon an independent assessment of the evidence at the conclusion
of the trial.
57. Each of these four criminal revision petitions (in the Lift Case) are
accordingly dismissed with costs of Rs.25,000 each which will be paid by each of
the petitioners to the CBI within four weeks. Applications also stand dismissed.
May 5, 2009 S. MURALIDHAR, J.
ak-ks
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