Delhi High Court
S.K.Bahadur vs Cbi on 19 March, 2013
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: March 06, 2013
Pronounced on: March 19, 2013
+ CRL.M.C. 3897/2011, Crl.M.A.Nos. 18362/2011, 31/2012 &
13165/2012
S K BAHADUR ..... Petitioner
Through: Petitioner in person
versus
CBI ..... Respondent
Through: Mr. Narender Mann, Special
Public Prosecutor with Mr.
Mr. Manoj Pant, Advocate
+ CRL.M.C. 4060/2011
ASHA BHATNAGAR ..... Petitioner
Through: Mr. S.K.Bahadur (husband of
petitioner)
versus
CBI ..... Respondent
Through: Mr. Narender Mann, Special
Public Prosecutor with
Mr. Manoj Pant, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
1. In the above captioned first petition, challenge is to impugned
order of 8th September, 2011 (Annexure P-2) declining alteration of
charge in a disproportionate assets case against petitioner- S. K.
Bahadur, whereas in the above captioned second petition, his wife is
seeking release of her seized cash, jewellery, etc. i.e. items in Group II
and III as detailed in paragraph No.9 of Judgment dated 31st January,
2011 (Annexure P-1) rendered by a Division Bench of this Court in
petitioner-S.K.Bahadur's Income Tax matter.
2. At the hearing, petitioner- S. K. Bahadur had appeared in person
on behalf of himself and his wife in the above captioned petitions and
while tendering written submissions had requested this Court to decide
these petitions on the basis of written submissions. On behalf of
respondent also written submissions were tendered and in the brief
oral submissions, it was urged by learned Special Public Prosecutor
for respondent-CBI that impugned order does not suffer from any
infirmity and so, these petitions ought to be dismissed.
3. Upon perusal of the written submissions placed on record and
the decisions relied upon, I find that the impugned order briefly takes
note of the factual background of this case which need not be
reproduced herein. While noticing the decisions relied upon by both
the sides and the submissions advanced as reiterated in the written
arguments submitted herein, trial court has aptly dwelt upon it in
impugned order in these words: -
"28. The aforesaid items mentioned in Group I
were not challenged before Hon'ble High Court as
mentioned in para 12 of the said judgment.
Notwithstanding the said fact, as far as this Court
is concerned, the aforesaid judgment of Hon'ble
Delhi High Court pertaining to items of Group II
& III mentioned above is binding.
29. It is admitted on both counts that as per the
aforesaid charge framed against the accused
under Section 5(1)(e) r/w 5(2) of P.C. Act, 1947,
during the course of the present trial accused
would get an opportunity to offer satisfactory
explanation for possession of disproportionate
assets including these items mentioned in Group II
and III above.
30. In view of the aforesaid facts and
circumstances of the present case, there is no need
to alter charge and I am not willing to exercise my
power under Section 216 CrPC, 1973. Needless to
mention that accused would at liberty to rely upon
the aforesaid judgment during the course of
evidence to explain the disproportionate assets in
his possession and effect thereof would be
considered at the time of final arguments."
4. Pertinently, petitioner- Asha Bhatnagar has not sought release
of her seized cash and jewellery from the trial court, which she ought
to have done. In any case, it needs to be noted that the charge-sheet in
this case was filed way back in the year 1986. However, the charge
was framed by trial court only in the year 2005. Relevantly,
application to alter the charge framed was filed by petitioner- S. K.
Bahadur in February, 2011 after the decision (Annexure P-1) was
rendered in Income Tax proceedings. As there are no interim orders in
these petitions, so recording of evidence by the trial court is in
progress and it transpires from written submissions of respondent that
till February, 2013 deposition of 35 witnesses has been already
recorded.
5. In the aforesaid view of this matter, this Court is not inclined to
invoke its inherent jurisdiction to implicitly rely upon the judgment
(Annexure P-1) to quash the criminal proceedings amidst trial,
especially when the trial is at fairly advanced stage. It would be indeed
premature for this Court to consider the probative value of the
Judgment (Annexure P-1) at this stage of the trial and so, without
considering the relevance and applicability of the decisions in State of
Andhra Pradesh v. Commercial Tax Officer & Anr. 1988 (68) STC
177; Haripada Dey v. The State of West Bengal & Anr. (1956)
1SCR639; Sree Meenakshi Mills Ltd., Madurai v. Commissioner of
Income Tax, Madras AIR 1957 SC 49; East India Commercial Co.
Ltd., Calcutta v. Collector of Customs, Calcutta 1983
E.L.T1342(S.C.); RBF Rig Corporation, Mumbai v. Commissioner of
Customs (Imports), Mumbai (2011)3SCC573; S. Nagaraj & Ors. v.
State of Karnataka & Anr. 1993 Supp(4) SCC 595; Daryao & Ors. v.
State of UP & Ors. AIR 1961 SC1457; Commissioner of Income Tax
v. S. Murugappa Chettiar (1992) 197 ITR 575; Traders & Traders &
Ors. v. Ramnarayan Bhattad 1995 Supp(2) SCC661; Commissioner of
Income Tax v. M/s. Sun Engineering Works P. Ltd AIR 1993 SC 43;
State v. Gian Chand Jain & Ors. 2010 III AD (Delhi) 559; Gulab
Chand Sharma v. Sh. H.P. Sharma etc. ILR(1974)I Delhi 190; Naresh
Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr.
(1996)3SCR744; Kishan Singh v. Gurpal Singh & Ors.
2010(8)SCC775; State of NCT of Delhi v. Ajay Kumar Tyagi
2012(8)SCALE424; Iqbal Singh Marwah & Anr. v. Meenakshi
Marwah & Anr. 2005SCC(Cri.)1101; M.S. Sheriff v. State of Madras
AIR 1954 SC 397 and K.G. Premshanker v. Inspector of Police &
Anr. (2002)8SCC87, it is left open for the trial court to consider it at
the final stage. Such a course is being adopted because the alternate
argument taken by petitioner- S. K. Bahadur in Income Tax
proceedings was that since criminal case is pending under the
Prevention of Corruption Act, 1988, Income Tax Authorities had no
jurisdiction to pass assessment orders.
6. It appears that the seized cash and jewellery etc. of petitioner-
Asha Bhatnagar is the case property of the criminal case of
disproportionate assets against petitioner- S. K. Bahadur and so
instead of considering release of seized jewellery of petitioner- Asha
Bhatnagar to her on superdari, it is deemed appropriate to direct
expeditious conclusion of the trial, which is pending since the year
1999. Incidentally, impugned order notes that this is the oldest case
pending for trial.
7. Infact, in the garb of seeking alteration of charge, petitioner- S.
K. Bahadur in effect seeks his discharge in this criminal case which is
now at fairly advanced stage of trial. It would be indeed inappropriate
for this Court to prejudge the probative value of Judgment (Annexure
P-1) to stifle the trial of this case which is at fairly advanced stage.
8. In light of the aforesaid, finding no palpable error in the
impugned order (Annexure P-2) and no justification to order release of
seized cash and jewellery of petitioner- Asha Bhatnagar at this stage
of trial, both these petitions are disposed of while leaving it to the trial
court to give due weightage to Judgment (Annexure P-1) relied upon
by petitioner. Trial court shall make all the endeavours to expedite the
trial of this old case and to conclude it within this calendar year.
9. With the aforesaid directions, these two petitions and the
pending applications stand disposed of.
(SUNIL GAUR)
JUDGE
MARCH 19, 2013
S
