Delhi High Court
Kumar Suman Singh @ Ranjeet Singh vs The State Thr. Cbi on 24 November, 2009
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C.3587/2008
Reserved on: 22nd October, 2009
% Date of Decision: 24th November, 2009
# KUMAR SUMAN SINGH @ RANJEET SINGH.....
PETITIONER
! Through: Mr. Anup George Chaudhary,
Sr. Advocate, Ms. June Choudhary,
Sr. Advocate with Mr. Ashok
Mehta, Mr. Anil Kumar Chopra and
Mr. Samir Ali, Advocates
Versus
$ THE STATE THR. CBI ..... RESPONDENT
Through: Mr.Anindya Malhotra with SI
Rajneesh Kumar, EOW/Crime
Branch, Delhi Police.
* CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the 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 the Digest? Yes
: V.K. JAIN, J.
This is a petition u/s 482 of the Code of Criminal
Procedure, for quashing RC-DA1-2003-A-0058 CBI/ACB, Delhi
stated to have beenregistered by CBI under Section 120-B read
with Sections 380/408/411/511 of IPC.
2. On 22.11.2003, a secret information was received by Crime
Branch of Delhi Police by one Rajiv Saxena, about the leakage
and sale of question paper of CAT examination to be held on
23.11.2003. The police officer, who received the information,
contacted Rajiv Saxena who agreed to sell the question paper to
him for Rs. 5.00 lacs and asked him to contact his associate
Rajesh Suchan on his mobile No. 9810931435. The Police officer
contacted both of them a number of times on telephone and it
was agreed that Rajesh Suchan would meet him at Outer Ring
Road, near Munirka. Thereupon he organized a raiding party
and reached the appointed place. Rajesh Suchan met him and
negotiated with him. He contacted Rajesh Saxena who directed
them to reach near Radisson Hotel. When the police official
reached there along with Rajesh Suchan, the complainant
Natwar Meena and his friend Virender Kumar approached them.
The police officers disclosed their identity to the complainant
and his friend Virender Kumar who explained all the
circumstances and the complainant also showed his CAT identity
card to them. On inquiry, police officials came to know that the
candidates were being taken to hotel Shanti Palace on NH-8.
Two police officers were deputed to inquire and verify at hotel
Shanti Palace. Those police officials reported that CBI had
already raided Hotel Shanti Palace and their action was still
going on. Thereupon, statement of complainant Natwar Meena
was recorded, who stated that at about 6 pm he received a
telephone call from one Guruji, who inquired as to whether he
wanted question paper of CAT exam 2003. He received another
call from Guruji at about 6.45 pm and was asked to come near
Radisson Hotel at about 9.30 pm. He along with his friend
Virender Kumar took chance to get the question paper of CAT
and made telephone call to Guruji on his mobile, number of
which had already given on the mobile of the complainant.
Guruji asked for Rs. 1.00 lac for the question paper. When they
were waiting for Guruji, 3 persons namely Mahender, Arvind
Kumar and Bharat Bhushan reached there and asked the
complainant whether he had brought Rs. 1.00 lakh for the
question paper. When he replied in negative, they asked the
complainant and his friend to wait till Guruji came there. In the
mean time the police party reached there along with Rajesh
Suchan. All the four persons, referred above were arrested.
During interrogation by police Rajesh Suchan disclosed the
name of Santosh Kumar, who, in turn, disclosed that Rajesh
Saxena was residing in a hostel in Janakpuri. Rajesh Saxena was
arrested from there. He informed the police that Rajesh Suchan
had introduced him to one Ashutosh Kumar who during
conversation revealed to him that Dr. Ranjit Singh of Patna had
the paper of CAT examination and that all the candidates will
reach petrol pump, near Radisson Hotel from where they shall
be taken to Hotel Shanti Palace where solved question paper of
CAT examination would be shown to him. Accordingly, he
directed Rajesh Suchan to take the candidates to petrol pump,
where Bharat Bhushan, Arvind Kumar, Rahul and Mahender etc.
were to meet and take them to Hotel Shanti Palace. During
further investigation, officers of the Crime Branch discovered
that Kumar Suman Singh @ Ranjit had already been arrested by
the CBI.
3. According to Delhi Police, it was established during
investigation that Kumar Suman Singh @ Ranjit was the leader
of the gang who got the question paper stolen and brought
Ashutosh Kumar, Ashok Kant, both of whom could not be
arrested, and Bharat Bhushan, Arvind Kumar, Rajeev Saxena,
Rajesh Suchan and Rahul to Delhi for arranging candidates.
Accused Arvind Kumar was also promised some payment. As per
the chargesheet filed by Crime Branch, the accused persons
made an attempt to cheat the complainant and other genuine
candidates by stealing the question paper and then selling the
same on hefty price. It has been further alleged that accused
Rajeev Suchan tried to destroy the evidence by taking out the
SIM card of his mobile phone and concealing them in a
verandah. Arvind Kumar and Alok Kant could not be arrested
during investigation. The charge sheet by Delhi Police has been
filed under Section 120 B of IPC read with Section 379/420/511
and 201/511 of IPC.
4. In the charge sheet filed by CBI, it has been alleged that a
reliable information was received to the effect that Suman
Kumar Singh and his associates either pilfered during transit or
misappropriated the question paper of CAT for admission to
various Management Institutes during the period between
printing and preparation of the question paper and were
delivering the question paper to prospective candidates
appearing for the exam to be held on 23.11.2003, in Hotel Shanti
Palace, after taking lacs of rupees from each candidates. A
surprise check was conducted in hotel Shanti Palace and they
found Arun Kumar Sinha, Kumar Suman Singh @ Ranjit, Manoj
Kumar, Hari Shankar Chaudhary along with Sanish Kumar,
Proful Chandra Jha, Anurag Thakur and K. Rishi were staying in
room No. 122 and 123 of the Hotel. Different sections of
question paper were recovered from the possession of Manoj
Kumar, Hari Shankar Chaudhary, Sanish Kumar and Proful
Chandra Jha, whereas identity cards of the candidates were
recovered from the possession of Kumar Suman Singh. The
candidates confirmed that they were assured by accused No. 1
Arun Kumar, accused No. 2 Kumar Suman Singh, accused No. 3
Manoj Kumar and accused No. 4 Hari Shankar Chaudhary that
question papers given to them was a copy of question paper of
CAT 2003 examination to be conducted on 23.11.2003 for which
they had to pay an amount of Rs. 2 to 4 lakhs to them.
5. During surprise check by CBI, accused No. 1 Arun Kumar
Sinha, accused No. 2 Kumar Suman Singh, accused No. 5 Sanish
Kumar and accused No. 7 Anurag Kumar Thakur were found
sitting in room No. 122 of Hotel Shanti Palace, whereas accused
No. 3 Manoj Kumar, accused No. 4, Hari Shankar Chaudhary,
accused No. 6 Praful Chandra Jha and accused No. 8, K.Rishi
were found sitting in Room No. 123. Original Admit Card of A.K.
Thakur, Sanish Kumar, K.Rishi and Praful Chand Jha were found
in right hand of accused No. 2 Kumar Suman. Four sheets from
question No. 64 to 97, with tick mark on the answers, were
found in the hands of Manoj Kumar. 8 sheets from question No.
30 to 112, with tick mark on most of the answers, were found in
the hands of Hari Shanker Chaudhary. 6 sheets from question
No. 51 to 75 and photocopy of hand written sheet from serial No.
1 to 64 were found in the hands of A.K. Thakur. 9 sheets from
question No. 1 to 50, with tick mark on most of the answers,
along with hand written photocopy of paper were, found in the
hands of Sanish Kumar. 4 sheets from question No. 130 to 150,
with tick mark on most of the answers, alongwith one hand
written photocopy of paper were found in the hands of Praful
Chandra Jha.
6. During investigation it was revealed that photocopies of
question bank recovered during the course of surprise check
was an exact replica of series 222 of question paper of CAT 2003
examination paper and was distributed to various candidates.
Recovered question bank also matched with series 111, 333 and
444 of the question booklets, though the sequence of the
question was different.
7. During investigation, CBI found that question paper for
CAT 2003 examination was printed at IBPS press in Mumbai.
Accused No. 1 Arun Kumar Sinha, accompanied by accused No.
4 Hari Shankar Chaudhary, had visited Mumbai on 27.10.2003
and stayed in Hotel Highway Inn where he met accused No. 9
Sanjeev Kumar. Accused No. 9 was working in IBPS press as
daily wager worker with the binding contractor Shri Vishal Shati
Ram Gaurav. It was accused Sanjeev Kumar who handed over
the question paper to Arun Kumar Sinha in a house in Kalyan
(East), District Thane, where he was staying with accused NO. 1
Arun Kumar Sinha and accused No. 4 Hari Shankar Chaudhary.
Arun Kumar Sinha paid a sum of Rs. 18.00 lacs to accused No.
10 Yogendra Prasad who is father of accused No. 9 Sanjeev
Kumar and paid another sum of Rs. 3.25 lacs to Sanjeev Kumar
at Mumbai. Arun Kumar Sinha took the help of one Mohd.
Shahin for solving the question papers. Statement of Moh.d
Shahin has been recorded u/s 164 Cr. P.C. It was found during
investigation that a number of persons were contacted by
accused Arun Kumar Sinha and Manoj Kumar for selling the
question paper and requested them to provide candidates who
could purchase the question paper. On comparison with the
hand written sheet recovered during investigation, it has been
found that the specimen hand writing of accused Manoj Kumar
and Arun Kr. Sinha tallied with the hand writing of those hand
written sheets. It was also revealed that the rooms in hotel
Shanti Palace were booked by accused Arvind Kumar in the
name of Vimal Kumar.
8. The CBI has, therefore, chargesheeted Arun Kr. Sinha,
Kumar Suman Singh @ Ranjit, Manoj Kumar, Hari Shankar
Chaudhary, Sanish Kumar, P.C. Jha, A.K. Thakur, Qutub Rishi,
Sanjeev Kumar and Yogesh Kumar under section 120B of IPC
read with Section 380, 408 and 411 thereof read further with
section 511 of IPC. Accused Sanjeev Kumar has also been
charged for substantive offence under Section 380 and 408 of
IPC whereas accused Sanish Kumar, PrafulChander Jha, Anurag
Kumar Jhakar and K. Rishi have been charged for substantive
offence under Section 411 of IPC.
9. The petitioner Kumar Suman @ Ranjit Singh has sought
quashing of FIR registered by CBI, and the proceedings arising
therefrom, on the ground that since an FIR had already been
registered by the Crime Branch of Delhi Police before
registration of FIR by the CBI, and investigation had also been
carried out by it, second FIR registered by CBI and the
proceedings arising therefrom are liable to be quashed. The plea
taken is that petitioner can't be exposed only once to the
criminal proceedings in respect of the same allegation and a
second or successive FIR on the same allegation could not have
been registered. The contention of the petitioner is also that the
parallel proceedings in 2 different courts would culminate in
double jeopardy, which is not permissible in law.
10. In support of his contention, the learned counsel for the
petitioner has referred to the judgment of the Hon'ble Supreme
Court in T.T. Antony Vs. State of Kerala & Ors (2001) VI SCC
181. In the case before the Hon'ble Supreme Court, 5 persons
died and a number of persons were injured during a firing by
police on November 25, 1998. A few police officers also
sustained injuries. The firing was opened by the police at two
places, in the proximity of Town Hall on the Order of Executive
Magistrate and DSP and in the vicinity of a police station on the
order of Suptt. Of Police. Crime No. 353/94 was registered in
respect of occurrence which took place near Town Hall and
Crime No. 354/94 was registered in respect of occurrence which
took place in the vicinity of the police station.
11. The incidents having given rise to public outcry, an inquiry
under Commission of Enquiry Act was ordered by the Kerala
Government. It was found during inquiry that the police firing
was not justified and three persons including Shri T.T. Antony,
who was former Deputy Collector, were responsible for the
firing. On receipt of the report of Enquiry Commission, the Govt.
issued orders for registration of a case and investigation by a
Senior Officer. Crime No. 268/97 was thereupon registered
against the persons named in inquiry including Shri T.T. Antony.
The case registered as Crime No. 353 of 94 and 354 of 1994,
which were mainly against the workers, came to be closed after
registration of Crime No. 268/97. Three writ petitions were filed,
one by Mr. T.T. Antony, second by one Mr. Chandrashekhar and
the third by some Constables seeking quashing of FIR registered
vide Crime No. 268/97 or in the alternative for investigation by
CBI. A learned Single Judge of the High Court directed re
investigation by CBI. In appeal a Division Bench of the High
Court directed fresh investigation by state police. Being
dissatisfied T.T. Antony and some others came to the Hon'ble
Supreme Court, where the learned counsel for the petitioners
questioned the legality of the second FIR registered as Crime
No. 268/97 and the investigation that followed it, when two FIRs
pertaining to the same occurrence had already filed and
registered as Crime No. 353/94 and 354/94. The contention was
that registration of fresh FIR in respect of the very same
incident was not followed and therefore all the steps taken
pursuant thereto were illegal and liable to be quashed.
12. The Hon'ble Supreme Court noted that an information
given under Sub Section (1) of Section 154 of Cr. P.C, which is
commonly known as FIR, is the earliest and the first information
of a cognizable offence, which sets the criminal law into motion
and marks the commencement of the investigation which ends
up with the formation of opinion under Section 169 or 170 of Cr.
P.C. as the case may be, and forwarding of a police report under
Section 173 thereof. It was observed that some time more
information than one are given to a police officer in respect of
same incident, but, in such a case he need not enter every one of
them in Station House Diary and such information received after
commencement of investigation will be statements falling under
Section 162 of the Code of Criminal Procedure and cannot be
treated as an FIR as treating such information as an FIR would,
in fact, be a second FIR which is not in confirmity of the scheme
of the Code of Criminal Procedure. It was observed that if in an
FIR regarding the offence under Section 307 or 326 of IPC, the
Investigating Officers received a fresh information that the
victim has died, no fresh FIR under Section 302 needed to be
registered and in such a case alteration of the provision of law of
the First FIR is the proper course to adopt. Taking another
example, the Hon'ble Court observed that in a situation where a
person H having killed his wife W, informs the police that she
had been killed by some unknown person but later on it is
detected that the murder was committed by H, it does not
require filing of fresh FIR against H. It was further observed
that if after sending report u/s 173 of Cr. P.C. the police officer
comes into possession of further information or material, he
need not register a fresh FIR since he is empowered to make
further investigation and the further information which he
collects during further investigation is required to be sent to the
Magistrate under sub section (8) of section 173.
13. The Hon'ble Court, inter alia, held as under :
From the above discussion it follows that under the
scheme of the provisions of Sections 154 155 156 157 162
169 170 and 173 of Cr.P.C. only the earliest or the first
information in regard to the commission of a cognizable
offence satisfies the requirements of Section 154 Cr.P.C.
Thus there can be no second F.I.R. and consequently there
can be no fresh investigation on receipt of every
subsequent information in respect of the same cognizable
offence or the same occurrence or incident giving rise to
one or more cognizable offences. On receipt of information
about a cognizable offence or an incident giving rise to a
cognizable offence or offences and on entering the F.I.R. in
the station house diary, the officer in charge of a Police
Station has to investigate not merely the cognizable offence
reported in the FIR but also other connected offences
found to have been committed in the course of the same
transaction or the same occurrence and file one or more
reports as provided in Section 173 of the Cr.P.C.
14. The Hon'ble Supreme Court further observed as under:
However, the sweeping power of investigation does
not warrant subjecting a citizen each time to fresh
investigation by the police in respect of the same incident,
giving rise to one or more cognizable offences, consequent
upon filing of successive FIRs whether before or after filing
the final report under Section 173(2) Cr.P.C. It would
clearly be beyond the purview of Sections 154 and 156
Cr.P.C. nay, a case of abuse of the statutory power of
investigation in a given case. In our view a case of fresh
investigation based on the second or successive FIRs, not
being a counter case, filed in connection with the same or
connected cognizable offence alleged to have been
committed in the course of the same transaction and in
respect of which pursuant to the first FIR either
investigation is underway or final report under Section
173(2) has been forwarded to the Magistrate, may be a fit
case for exercise of power under Section 482 Cr.P.C. or
under Article 226/227 of the Constitution.
15. On comparison of the FIRs in Criminal No. 353/94 and
354/94 on one hand an FIR in crime No. 268/97 and on the other
hand the hon'ble Supreme Court noted that date and place of
occurrence were same and narration of facts were almost the
same and therefore in truth and substance, essence offence in
Crime No. 353/94 and 354/94 was the same as in Crime No.
268/97. It was noted that on the day crime No. 268/97 was
registered, investigation in Crime No. 353 and 354 of 94 was in
progress and in these circumstances registration of Second FIR
in regard to the same incident and making of a fresh
investigation was not permissible.
16. Learned counsel for the petitioner has also referred to the
decision of a learned Single Judge in this court in Shyam Sunder
Vs. MCD 2007 III AD (Crl.) 444. In this case, the information
was received by BIS Bureau of Indian Standard, from one D.
Gupta, that the manufacturer of a water proof compound was
using raising of product manufactured in the month of February,
2002, despite expiry of the certificate given to it by BIS. The
manufacturer and its Director were alleged to be guilty of
offence under Section 11 and 30 of BIS Act 1986. The
complainant had also given some information to the police which
had led to registration of an FIR resulting in filing of a charge
sheet for the offence under section 11/33 of BIS act. It was
noted by the learned Single Judge that the material collected by
BIS were undisputedly used by Delhi Police and test report
annexed to the charge sheet filed by the police also formed the
basis of complaint filed by BIS. Admittedly, no other incident
relating to any other product had been mentioned in the
complaint. In these circumstances, it was held that since charge
sheet had already been filed by the police, a complaint by BIS
could not be allowed to proceed since that would expose the
petitioner to the rigorous of second trial on the same facts.
17. In Nirmal Singh Kalhon Vs. State of Punjab (2009) 1 SCC
441, an advertisement was issued by Punjab Government for
recruitment of 190 Panchayat Secretaries. Though written test
was held, the posts could not be filled up. In the mean time, 545
Panchayat Secretaries were appointed on adhoc basis. One of
the applicants, who had applied in response to the advertisement
of 190 posts, challenged the ad-hoc appointments by filing a Writ
Petition in Punjab and Haryana High Court, which directed
completion of the selection process. Two more advertisements
were issued for filing up 700 and 800 posts of Panchayat
Secretaries. Another writ petition was filed in the High Court in
which selection for the post of Panchayat Secretaries was
directed to be completed within one month. 190 candidates
were selected after the interview. Their selection was
challenged by filing yet another writ petition whereupon an
inquiry was ordered by the High Court into the selections made
by the department. It was recommended in the inquiry that
matter required investigation by Vigilance Department.
Pursuant thereto an FIR was registered against several persons
including Sh.Nirmal Singh Kahlon u/s 420/467/468 and 120 B of
IPC and Sections 13(1)(d)(d) and 13(2) of Prevention of
Corruption Act. A charge sheet was filed against Nirmal Singh
Kahlon and J.P. Singhla.
Pursuant to a direction given by Punjab and Haryana High
Court, Punjab Government issued notification for investigation
by CBI into the alleged scandal in appointment of Panchayat
Secretaries. The notifications issued by the Government were
challenged on various grounds including that since an FIR has
already been lodged by Vigilance Department, another FIR for
the same cause of action could not have been lodged by the CBI
in view of the decision of Hon'ble Supreme Court in the case of
T.T. Antony (Supra).
It was noted by the Hon'ble Supreme Court that the first
FIR referred to the acts of omissions and commissions during
the tenure of the appellant as a Former Minister, relating to
recruitment of various posts of Tax Collectors, Patwaries, Clerks
as well as with regard to filling up of vacancies in handicapped
category of Gram Sewak in which appellants were said to have
accepted heavy amount of bribe, whereas the High Court, which
directed investigation by CBI, was concerned only with
appointment of Panchayat Secretaries and the only allegation in
the Public Interest Litigation before the High Court was with
regard to appointment of favourites who did not have the
qualifications.
18. The Hon'ble Supreme Court in para 44 of the judgment
held as under :
The second FIR lodged by the Central Bureau of
Investigation (CBI), however, was on a wider canvass. It
was lodged after holding a detailed preliminary inquiry.
CBI collected a large number of materials. It had also
recorded the statements of a large number of persons.
Whereas the first FIR dated 14.06.2002, thus, contained
the misdeeds of individuals, the second one depicts a crime
committed in course of selection process of Panchayat
Secretaries involving a large number of officers.
The second FIR dated 26.06.2003 enumerates as
many as fifteen categories of irregularities committed by
various persons involved in the said selection process.
Responsibility has not only been fixed upon the appellant
but also upon Shri Mandeep Singh, Shri C.L. Premmy, Shri
J.S. Kesar, Shri Joginder Singh as also the then Additional
Deputy Commissioners of Bhatinda, Ropar and Muktsar.
The number of accused who were involved as per
preliminary report of the CBI were as many as fourteen.
The first FIR pointed out offences under Sections 420,
467, 468, 120B of the Indian Penal Code and Sections
13(1)(d)(e) and 13(2) of the Prevention of Corruption Act
but no allegation of conspiracy was made. In the second
FIR dated 26.06.2003, the persons involved were not only
the then Minister but also the then Director, the then
Division Deputy Director, the then Deputy Directors, the
then Additional Deputy Commissioners, the then Block
Development Officers, etc
It may be true that in both the FIRs Kahlon was
named. He was considered to be the prime accused. But, it
is one thing to say that he acted in his individual capacity
and it is another thing to say that he conspired with a large
number of persons to facilitate commission of crime by him
as a result whereof all of them had made unlawful gains.
Even in Ram Lal Narang (supra), we have seen that
two of the accused, viz., Mehra and Malik, were common.
When two conspiracies are alleged; one is larger than the
other, there may be some common factors but the nature of
offence would differ. An offence committed would not be
judged by mere mentioning of the sections but the mode
and manner in which the same was committed as also the
nature thereof.
We must also bear in mind the distinction between
crime committed by an individual or a group of persons vis-
`-vis a scam which means "to get money or property from,
another, under false pretences, by gaining the confidence
of the victim, also includes; swindle; defraud.
The second FIR, in our opinion, would be
maintainable not only because there were different
versions but when new discovery is made on factual
foundations. Discoveries may be made by the police
authorities at a subsequent stage. Discovery about a larger
conspiracy can also surface in another proceeding, as for
example, in a case of this nature. If the police authorities
did not make a fair investigation and left out conspiracy
aspect of the matter from the purview of its investigation,
in our opinion, as and when the same surfaced, it was open
to the State and/ or the High Court to direct investigation
in respect of an offence which is distinct and separate from
the one for which the FIR had already been lodged."
19. In Ram Lal Narang vs. State, 1979 2 SCC 322, two
precious antiques were deposited in the court of a Magistrate as
stolen property. One NN Malik took custody of those antiques on
the pretext of making their detailed study. After about 3
months, he deposited those antiques back in the court of the
Magistrate. It was thereafter discovered that antiques deposited
by him were not original but were fake ones. An FIR was
registered against Malik and one Mehra at whose instance the
antique were delivered to Malik. Charge sheet was filed by CBI
after carrying out investigation. Ultimately the case was
withdrawn on the request of the public prosecutor and the
accused was discharged. Later on, the original antiques were
found in London which led to registration of an FIR in Delhi
against three persons. The charge against them was that they,
along with Mehra and Malik conspired together to obtain
custody of genuine antiques and got duplicates made and had
them substituted with a view to smuggle out the original
antiques to London. An application was filed by Narangs for
dropping the proceedings against them on the ground that the
entire second investigation was illegal as the case on the same
facts was already pending before the Ambala Court. They also
filed a petition under Section 482 of the Cr. P.C. to quash the
proceedings. When the mater reached the Supreme Court it was
contended that subject matter of two FIR and two charge sheets
being the same, there was an implied bar on the power of the
police to investigate into the subsequent FIR. The Hon'ble
Supreme Court held that the conspiracies in the two cases were
not identical and the first one was smaller conspiracy whereas
the second one larger conspiracy, as had eventually turned out.
20. The Hon'ble Court, inter-alia, observed as under:
"The offences alleged in the first case were Section 120B
read with Section 420 and Section 406 IPC, while the offences
alleged in the second case were Section 120B read with Section
411 IPC and Section 25 of the Antiquities and Art Treasures Act,
1972. It is true that the Antiquities and Art Treasures Act had
not yet come into force on the date when the FIR was registered.
It is also true that Omi Narang and Manu Narang were not
extradited for the offence under the Antiquities and Art
Treasures Act, and, therefore, they could not be tried for that
offence in India. But the question whether any of the accused
may be tried for a contravention of the Antiquities and Art
Treasures Act or under the corresponding provision of the
earlier Act is really irrelevant in deciding whether the two
conspiracies are one and the same. The trite argument that a
Court takes cognizance of offences and not offenders was also
advanced. This argument is again of no relevance in determining
the question whether the two conspiracies which were taken
cognizance of by the Ambala and the Delhi Courts were the same
in substance. The question is not whether the nature and
character of the conspiracy has changed by the mere inclusion of
a few more conspirators as accused or by the addition of one
more among the objects of the conspiracy. The question is
whether the two conspiracies are in substance and truth the
same. Where the conspiracy discovered later is found to cover a
much larger canvas with broader ramifications, it cannot be
equated with the earlier conspiracy which covered a smaller
field of narrower dimensions. We are clear, in the present case,
that the conspiracies which are the subject- matter of the two
cases cannot be said to be identical though the conspiracy which
is the subject-matter of the first case may, perhaps, be said to
have turned out to be part of the conspiracy which is the subject-
matter of the second case. As we mentioned earlier, when
investigation commenced in FIR R.C. 4 of 1976, apart from the
circumstance that the property involved was the same, the link
between the conspiracy to cheat and to misappropriate and the
conspiracy to dispose of the stolen property was not known."
21. In Saran Das Vs. Ram Singh; (1997) 2021 Crl. L. J., the
Magistrate took cognizance of an offence on a police report. A
complaint was thereafter filed in respect of the same offence. It
was noted that original genesis of the prosecution case, as laid
down in the complaint, was mere elaborate in details regarding
the alleged previous conduct of the accused persons. The
allegations contained in the complaint differed from the texture
of the averments made in the FIR, although, leading to the
commission of same offence. In these circumstances, it was held
that it could not be said that the complaint was not
maintainable. It was held that where there are two cases triable
by the court of sessions, one instituted on police report and the
other instituted on a criminal complaint arising out of the same
transaction, both the cases should be tried by once and the
same court simultaneously to avoid conflicting findings.
22. Admittedly, FIR by CBI was registered on the same
day on which FIR was registered by Delhi Police. In fact, a
perusal of the chargesheet filed by Delhi Police would show that
before registering FIR, two police official, who visited hotel
Shanti Palace to verify information received by Delhi Police,
found that a CBI team has already raided the hotel and their
action was still going on. The statement of the complainant
Natwar Meena on which the FIR has been registered by Delhi
Police was recorded only after these police officials had returned
to the office of Crime Branch from hotel Shanti Palace. Thus, it is
evident that inquiry by CBI was already going on when the FIR
was registered by Delhi Police, though FIR by Delhi Police was
registered at 2.00 am, whereas the FIR by CBI was registered at
3.00 am on 23rd November 2003. Quite possibly, inquiry by CBI
had started before Delhi Police swung into action.
23. Admittedly, barring petitioner Kumar Suman Singh @
Ranjeet Singh, no accused is common in the two chargesheets.
CBI has chargesheeted 10 persons, namely, Arun Kumar Sinha,
Kumar Suman Singh, Manoj Kumar, Hari Shankar Prasad,
Sanish Kumar, Prafful Chand Jha, Anurag Kumar Thakur,
Kaustubh Rishi, Sanjeev Kumar and Yogender Prasad. Delhi
Police has, on the other hand, chargesheeted Ashutosh Kumar,
Alok Kant, Kumar Suman Singh, Rajesh Suchan, Rahul, Bharat
Bhushan, Arvind Kumar and Rajiv Gupta. Out of 10 persons
chargesheeted by the CBI, no one except petitioner Kumar
Rajesh Singh @ Ranjeet Singh has been chargesheeted by Delhi
police. Out of the persons chargesheeted by the Delhi Police, no
one except petitioner Kumar Suman has been chargesheeted by
CBI.
24. A comparison of the chargesheet filed by Delhi Police with
the chargesheet filed by CBI would show that the following
aspects of the criminal conspiracy have not been investigated by
the Delhi Police.
(i) Investigation by CBI has revealed that the question paper
for CAT, 2003 examination were printed at IBPS Press in
Mumbai and were handed over to the contractor Sh. Vilas
Shantaram for binding and accused Sanjeev Kumar, who was
working in IBPS Press as a daily wage worker with the Binding
Contractor, committed theft of the question paper and handed it
over to the accused Arun Kumar Sinha at house No. 13, D-Wing,
Amrut Kumbh Cooperative Group Housing Society in Kalyan
where accused Sanjeev Kumar was staying. This aspect has not
at all been investigated by Delhi Police.
(ii) CBI found during investigation that accused Arun Kumar
Singh accompanied Hari Shankar Choudhary, went to Mumbai
on 27.10.2003 and stayed in a hotel where accused Sanjeev
Kumar visited them and stayed with them overnight. This aspect
has not been investigated by Delhi Police.
(iii) CBI found that a sum of Rs.18 lakhs was paid by Arun
Kumar Sinha to accused Sanjeev Kumar and another sum of
Rs.3.25 lakh to his father accused Yogender Prasad. Again,
there is no investigation by Delhi Police on this aspect.
(iv) CBI found that accused Arun Kumar Sinha took the help of
Mohd. Shaheen for solving the question papers and also asked
him to arrange prospective candidates for sale of the question
paper. Delhi Police has not gone into the question as to who had
solved the question papers.
(v) CBI got the compared the hand writing on the hand written
sheets recovered by it with the specimen writing of accused
Manoj Kumar and Arun Kumar Sinha and it was opined by the
hand writing experts that they were author of hand written
sheets. Delhi Police has not recovered any hand written sheet
and has not at all gone into this aspect of the case.
(vi) CBI found at the time of surprise checking that accused Arun
Kumar Sinha, Kumar Suman Singh, Sanish Kumar and Anurag
Kumar Thakur were found sitting together in one room whereas,
accused Manoj Kumar, Hari Shankar Choudhary, Prafful Chand
Jha and Kaustubh Rishi were found sitting together in another
room. Original admission cards of Anurag Kumar Thakur,
Sanish Kumar, Kaustubh Rishi and Prafful Chand Jha were found
in the hand of accused Kumar Suman. These facts do not form
part of investigation by Crime Branch of Delhi Police. CBI found
sheets with different questions alongwith tick mark on answers
in possession accused Manoj Kumar, Hari Shankar Choudhary,
Anurag Kumar Thakur, Sanish Kumar and Prafful Chand Jha.
There is no investigation by Delhi Police in respect of the offence
committed by these persons.
(vii) CBI found during investigation that the photocopies of
question bank recovered during surprise check was exact replica
of series 222 of question paper of CAT, 2003 examination to be
distributed to the candidates appearing in South Delhi Public
School, Defence Colony, New Delhi and that question bank also
matched with series 111, 333 and 444 of the question booklets
at the test centre. Again, there is no investigation at all by
Crime Branch on this facet of the case.
25. No one has been chargesheeted by Delhi Police for the
offences committed under Section 408 and 411 of IPC.
26. CBI has filed charge-sheet after extensive investigation
spread over more than one cities, whereas the investigation by
Delhi Police was confined to Delhi and covers only an attempt to
cheat certain individual candidates. The conspiracy
unearthened by CBI is much larger than the conspiracy, which is
subject matter of charge-sheet filed by Delhi Police and in fact it
does include within its ambit the offences that were committed
in Delhi. The conspiracy which CBI has been able to uncover is
on a much larger canvass, with broader ramification and,
therefore, cannot be equated with conspiracy uncovered by
Delhi Police which covered a much smaller field with narrower
dimensions. The two conspiracies, one subject matter of the
charge-sheet filed by the CBI and the other subject matter of
charge-sheet filed by Delhi Police cannot be said to be identical
despite the subject matter of the conspiracy investigated by
Delhi Police being a part of the conspiracy uncovered by CBI.
The ratio of the decision of the Hon'ble Supreme Court in Ram
Lal Narang's case (Supra), therefore, squarely applies to this
case and the judgment of the Hon'ble Supreme Court in the case
of T.T. Antony (Supra) does not apply to the facts of this case.
27. If the chargesheet filed by CBI is quashed and
consequently, the oral and documentary evidence collected by it
is not produced during trial, the result would be that out of 10
accused chargesheeted by it, nine would go away scot-free, and
in fact, even the case against those, who have been
chargesheeted by Delhi Police, may not be that strong as it
would be if the documentary and oral evidence collected by CBI
is produced during trial. If chargesheet filed by Delhi Police is
quashed, the same would be the position in respect of those
except Kumar Suman Singh, who have been charge-sheeted by
it.
28. If the charge-sheet filed by CBI is quashed, there will be no
trial and consequently can be no conviction for the offence
committed u/s 408 and 411 IPC, neither of which finds mention
in the charge-sheet filed by Delhi Police.
29. The rule of criminal procedure have twin objectives; the
first being to ensure that no innocent person is punished and the
other, which is equally important being that a guilty person does
not go scot-free. To safeguard the interest of the society at
large, it is necessary that both these objectives are adequately
met while administering criminal justice. It is the society at
large which would suffer if those who are guilty of committing
serious crimes are allowed to get away, using the technicalities
of procedure laws. Therefore, the Court while interpreting the
rules of procedure has to maintain a fine balance between the
interest of the accused on the one hand and the interest of
society at large on the other hand. An interpretation, which
would thwart the course of justice and would result in the
perpetrators of such crimes getting away scot-free, will neither
be just nor fair and reasonable.
30. The next question which comes up for consideration is
what exactly should be the order of this court, which would,
while ensuring that none of the accused is able to go away scot
free will also ensure that the petitioner, Kumar Suman Singh @
Ranjeet Singh, who is the only common accused in both the
charge-sheets is not subjected to more than one trials in respect
of the offences alleged to have been committed by him in this
case and there is no possibility of his being convicted twice, once
in the prosecution initiated by CBI and secondly in the
prosecution initiated by Delhi Police. In my view, the most
appropriate course of action would be to club both the charge-
sheets, have a common trial against those who have been
charge-sheeted by CBI as well as those who have been charge-
sheeted by Delhi Police and a common decision after taking oral
as well as documentary evidence collected by CBI as well as
Delhi Police. If such a course of action is adopted, there will be
no prejudice to the petitioner, Kumar Suman Singh @ Ranjeet
Singh as he would neither be tried nor convicted twice for the
offences committed by him in this case. Simultaneously, It will
also ensure that none of the accused goes scot free, without
even facing trial and without an opportunity to the prosecution
to prove the charges attributed to them. It has also to be
ensured that the prosecution is conducted by one agency which
examines the witnesses cited by both the agencies and presents
the case of both of them to the court during trial.
31. It was contended by the learned counsel for the petitioner
that such a proceeding, if adopted by the court would not be in
consonance with the scheme of Code of Criminal Procedure. In
support of his contention, the learned counsel for the petitioner
has referred to the decision of the Constitution Bench of the
Hon'ble Supreme Court in Supreme Court Bar Association Vs.
Union of India, (1998) 4 SCC 409, where it was held that the
Supreme Court, in exercise of its plenary power under Article
142 of the Constitution cannot ignore any substantive statutory
provisions dealing with the subject. It was held that the power
conferred by Article 142 cannot be construed as powers which
authorize the court to ignore the substantive rights of litigants
and cannot be used to supplant the substantive law applicable to
the case and Article 142 cannot be used to build a new edifice,
where none existed earlier, by ignoring an expressed statutory
provision dealing with a subject and thereby to achieve
something indirectly which cannot be achieved directly. It was
held that these powers are not meant to be exercised when their
exercise prescribed comes directly in conflicting with what has
been statutorily prescribed.
32. In my view, reference to the aforesaid decision of the
Hon'ble Supreme Court is totally misplaced. The procedure
being proposed by the court does not contravene any particular
provision of the Code of Criminal Procedure. During the course
of arguments, it was expressly stated by the learned Addl.P.P.
representing Delhi Police/Government of NCT of Delhi that it
had no objection if Central Bureau of Investigation prosecutes
those who are accused in the charge-sheet filed by CBI as well
as those who have been charge-sheeted by Delhi Police and
produces, before the trial court, oral as well as documentary
evidence collected by it as well as by Delhi Police. In any case,
as is evident from a bare perusal of Section 482 of the Code of
Criminal Procedure, the power of the High Court u/s 482 of the
Code of Criminal Procedure can be exercised notwithstanding
anything contained elsewhere in the Code, the only requirement
for exercise of such a power being that it should be exercised to
give effect to any order made under the Code or to prevent
abuse of the process of a court or otherwise to secure the ends
of justice. In my view, this procedure would not only prevent an
abuse of the process of the court by scuttling any attempt to get
away scot free and without facing trial using the technicalities of
procedural laws but would also be able to secure the ends of
justice as it would, while ensuring that no one is tried and/or
convicted twice for the same offence would also ensure that no
one who is guilty is able to go away scot free. Since, CBI is a
central agency having wider reach and commanding better
resources as compared to Delhi Police, jurisdiction of which is
confined to Delhi, it is CBI, who in my view, should be given
command of the prosecution. As noted earlier, the learned
Addl.P.P. who represents the State Government/Delhi Police
expressly stated during arguments that CBI should be the
prosecuting agency for both the charge-sheets, once they are
clubbed together, a joint trial takes place in respect of those who
have been charge-sheeted by Delhi Police & those who have
been charge-sheeted by CBI.
33. For the reasons given in the preceding paragraphs, the
charge-sheet filed by CBI as well as charge-sheet filed by Delhi
police are clubbed together. CBI will be the sole prosecuting
agency and will examine the witnesses cited by it as well as the
witnesses cited by Delhi Police. Documentary evidence collected
by both the agencies shall be proved by CBI. Delhi Police will
render full cooperation and assistance to CBI in all respects of
the case. The cases shall be tried in the court in which charge-
sheet has been filed by CBI. The record of charge-sheet filed by
Delhi Police will be immediately transmitted by the court in
which it is pending to the court in which charge-sheet has been
filed by CBI. Both the courts shall forthwith comply with the
directions contained in this order. The court in which charge-
sheet filed by Delhi Police is pending will also direct the accused
who appear before it to appear in the court in which charge-
sheet filed by CBI is pending. If any of those charge-sheeted by
Delhi Police does not appear in the court in which charge-sheet
filed by CBI is pending, that court will take appropriate steps to
secure their presence. The petition stands disposed of with
these directions. The parties are directed to appear before the
court in which charge-sheet filed by CBI is pending, on 7th
December, 2009 for further directions.
One copy of this order be sent to the court in which the
charge-sheet filed by the CBI is pending and another copy of this
order be sent to the court in which the charge-sheet filed by
Delhi Police is pending.
(V.K. JAIN)
JUDGE
November 24, 2009
'acm/sk'
