Durga Datt Pradhan vs Cbi
2012 Latest Caselaw 3717 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

+                             CRL. M.C. No. 2120/2012

                                                  Date of Decision: 01.06.2012

DURGA DATT PRADHAN                                             ...... Petitioner

                              Through:       Mr. Durga Datt          Pradhan,
                                             petitioner in person.

                                       Versus

CBI                                                          ...... Respondents

                              Through:       Ms. Sonia Mathur, Special P.P.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

Crl.M.A.No. 7323/2012 (Exemption)

Exemption allowed, subject to all just exceptions. Application stands disposed of.

CRL. M.C. No. 2120/2012 & Crl. M.A. No. 7322/2012

1. This is a petition U/s 482 Cr.P.C. r/w Article 227 of the Constitution of India assailing the order dated 24.03.2012 of Special Judge (CBI) Rohini whereby application U/s 319 Cr.P.C. of the petitioner was dismissed.

2. I have heard the petitioner in person and perused the records.

3. In the aforesaid criminal case as many as 62 accused persons are facing prosecution. The prosecution has examined all its witnesses and

the case is at the stage of recording of statements of the accused persons. At this stage, the present application U/s 319 Cr.P.C. was filed by the petitioner for summoning Sh. Vishnu Bhagwan, IAS (the then PS to CM Haryana), Sh. Sanjeev Kaushal, IAS, (the then Addl. P.S. to C.M. Haryana) Sh. Prem Prashant IAS, (the then FCEL Haryana) and Sh. P.K. Mahapatra IAS, (the then Director Secondary Education-cum-Head of Coordination Branch relating to the selection of JBT Teachers as well as C&V Teachers, Haryana) as additional accused. The plea of the petitioner before the court of Learned Special Judge and also in this court was that all these officers were actively involved in the commission of offences of fraud, cheating, etc. in the selection of teachers recruited through the Director of Education which was headed by Sh. P.K. Mahapatra, IAS. It has been noted by the Learned Special Judge that all these four officers have been examined as witnesses of the prosecution. It was submitted by the petitioner that Sh. Prem Prashant, IAS has been examined as PW 1. In his testimony, he stated that Sh. Vishnu Bhagwan IAS, had attended the meeting in which accused Vidyadhar (A-1) , Sher Singh Badshami (A-2) and others were present. It was also submitted that Sh. Vishnu Bhagwan, Principal Secretary to Sh. Om Prakash Chautala (the then Chief Minister), was privy and party to the conspiracy of fabricating forged award lists and thus his presence in the meeting where discussions took place was sufficient to show that he was fully involved in the conspiracy.

4. It is noted by the Learned Special Judge that PW 16 Prem Prashant in his testimony as PW 16 only made a passing reference to Sh.

Vishnu Bhagwan being present in the meeting. It is noted that this witness rather stated that probably Sh. Vishnu Bhagwan attended that meeting. It is also noticed in his cross-examination that he clarified by stating that he is not absolutely sure as to whether Sh. Vishnu Bhagwan was present or not in the said meeting and therefore, he had used the word 'probably' for the presence of Sh. Vishnu Bhagwan in the said meeting. In view of such vague statement about the presence of Sh. Vishnu Bhagwan, the Learned Special Judge observed that it was not in the interest of justice to summon him as an accused and further that simply because of his holding post of P.S. to the Chief Minister would not make him privy of the offence. No other witness had testified about the presence of Sh. Vishnu Bhagwan in the said meeting. Nothing could be pointed out by the petitioner showing infirmity or illegality in this observation of the Learned Special Judge.

5. With regard to the Mr. Sanjeev Kaushal, Mr. Prem Prashant and Mr. P.K. Mahapatra, it was noted that since they have been examined as prosecution witnesses, they get the protection of Section 132 of the Evidence Act and could not be summoned U/s 319 Cr.P.C. The Learned Special Judge relied upon the case of State (Delhi Administration) Vs. Jagjit Singh 1989 AIR (SC) 589 and also M.P. Gangadharan Vs. State 1989 Crl. L.J. 2455 as also Municipal Corporation of Delhi vs. Ram Kishan Rohtagi 1983 Crl. J.J. 159.

6. Having gone through the impugned order and the aforecited judgments, I am in complete agreement with the findings recorded by the Kerala High Court in M.P. Gangadhara (Supra). In the said case,

the accused had examined a witness as DW 1. The trial Court summoned DW 1 as an accused U/s 319 (1) Cr.P.C. The Kerala High Court relying upon the case of Jagjit Singh (Supra) held that a witness on oath is under a compulsion to testify and therefore, he cannot be summoned U/s 319 Cr.P.C. because he is entitled to protection contained in Proviso to Section 132 of the Indian Evidence Act.

7. Having regard to the above and the fact that Sh. Sanjeev Kaushal, Sh. Prem Prashant and Sh. P.K. Mahapatra have been examined by the prosecution as PW 1, PW 16 and PW 26 respectively, they could not be summoned as accused persons being protected under the Proviso to Section 132 of the Indian Evidence Act.

8. Having found no illegality or infirmity in the impugned order, I am not persuaded to invoke extraordinary power of this court U/s 482 Cr.P.C. In view of this, the petition merits dismissal and is hereby dismissed.

M.L. MEHTA, J.

JUNE 01 , 2012 pkv