Delhi High Court
Ashok Jain vs C.B.I. on 13 October, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 13th August, 2014
% Date of Decision: 13th October , 2014
+ CRL.M.C. 4072/2012
ASHOK JAIN ..... Petitioner
Through: Mr. Rajesh Kumar & Mr.
Saurabh Kansal, Advs.
versus
C.B.I. ..... Respondent
Through: Ms. Sonia Mathur, Standing
Counsel.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
JUDGMENT
1. By way of the present petition under Section 482 of the Code of
Criminal Procedure (hereinafter referred to as „Cr.P.C.‟), the petitioner
has challenged order dated 04.05.2012 passed by learned Special Judge
(PC Act), CBI-08, Central, Delhi whereby the petitioner was charged
for the offences under Section 120B IPC read with Sections
420/467/468/471 IPC and Section 13(2) r/w Section 13(1)(d) of the PC
Act and Section 420 IPC r/w Section 120B IPC and consequently
charges were framed on 30.08.2012.
2. The factual matrix of the case are that on the complaint of
Mr.D.K. Thakur, case bearing No.RC34(A)/2007-DLI was registered,
wherein complainant has alleged that during the period 2006-07,
Sumer Chand Garg (Assistant Director) and Atul Vashisht (UDC),
both officials of Slum Upgradation and Relocation (SUR), Slum & JJ
Department, MCD entered into criminal conspiracy among themselves
along with Ashok Malhotra, Ashok Jain (petitioner) and others for the
purpose of allotting the plots under Resettlement Scheme in the name
of fictitious/ineligible persons. In furtherance of the said conspiracy,
fake/forged documents like ration cards, identity proof cards etc. were
prepared and used in the name of fictitious persons for allotting of 11
plots at J Block, Sector-16, Rohini under re-settlement scheme.
3. Mr.Ashok Chikara, Junior Engineer (co-accused), in furtherance
of said conspiracy, issued possession slips of the said plots to such
fictitious persons. The provisional identification slips which were used
as proof of allotment and other official records of the plots were
knowingly passed on by the MCD officials to Ashok Malhotra and
Ashok Jain (petitioner) which were recovered at the instance of the
petitioner. The official records of SUR (Slum and JJ Department) i.e.
the draw list and draw parchis dated 12.03.2007 of said plots were also
recovered from the house No. B-62, Nehru Vihar, Delhi where they
have been kept on the directions of Ashok Malhotra. On completion of
investigation, 16 charge-sheets were filed by CBI in respect of
fictitious allotment of the plots under resettlement scheme.
4. Vide order dated 04.05.2012, learned trial Court found a prima-
facie case for the offences under Section 120B IPC read with Sections
420/467/468/471 IPC and Section 13(2) r/w Section 13(1)(d) of the PC
Act and Section 420 IPC r/w Section 120B IPC against the petitioner
and the charges were framed on 30.08.2012.
5. Feeling aggrieved by the said order, the petitioner has preferred
the present petition.
6. Learned counsel for the petitioner urged that there is no material
on record to show involvement of petitioner and no charge can be
framed on the basis of mere apprehension. There is neither any
allegation of any overt act on the part of the petitioner in furtherance of
alleged conspiracy nor the respondent CBI has imputed any actus reus
on the part of the petitioner. There is no evidence against the petitioner
except his disclosure statement.
7. Learned counsel for the petitioner also submitted that the
petitioner should have been cited as a witness instead of an accused as
there is no allegation of forging the documents upon him. According
to counsel for the petitioner, recovery of documents does not show any
conspiracy on the part of the petitioner.
8. Per contra, learned standing counsel for CBI contended that the
accused persons including the petitioner entered into a conspiracy with
the public servants and got the allotment in the name of fake and
fictitious members. After the allotment was made, documents were
handed over to the petitioner to sell the same in open market. The
petitioner was found in possession of documents in respect of various
plots which would were not allotted in the name of the petitioner or his
family members. The officials of MCD handed over possession slips
and the receipt of money to Ashok Malhotra (co-accused) who in turn
sent the same to the petitioner along with other documents for sale of
allotted plots in open market, which he had no right to possess neither
as a public servant nor as an original allottee of the plots. The same
establishes this conspiracy between the petitioner and the other co-
accused persons.
9. I have bestowed my anxious thoughts to the submissions made
by learned counsel for the petitioner and standing counsel for CBI and
also gone through the material on record.
10. Before examining facts of the present case, it would be
appropriate to consider the scope of interference, in a petition under
Section 482 Cr. P.C. The Apex Court in „Amit Kapoor vs. Ramesh
Chander & Anr.', (2012) 9 SCC 460, while dealing with the issue of
interference at the stage of charge in a petition under Section 482
Cr.P.C. observed as under:-
"27. Having discussed the scope of jurisdiction under these two
provisions i.e. Section 397 and Section 482 of the Code and the fine
line of jurisdictional distinction, now it will be appropriate for us to
enlist the principles with reference to which the courts should
exercise such jurisdiction. However, it is not only difficult but is
inherently impossible to state with precision such principles. At best
and upon objective analysis of various judgments of this Court, we
are able to cull out some of the principles to be considered for
proper exercise of jurisdiction, particularly, with regard to quashing
of charge either in exercise of jurisdiction under Section 397 or
Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the
Court under Section 482 of the Code but the more the
power, the more due care and caution is to be exercised
in invoking these powers. The power of quashing
criminal proceedings, particularly, the charge framed in
terms of Section 228 of the Code should be exercised
very sparingly and with circumspection and that too in
the rarest of rare cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of
the case and the documents submitted therewith prima
facie establish the offence or not. If the allegations are so
patently absurd and inherently improbable that no
prudent person can ever reach such a conclusion and
where the basic ingredients of a criminal offence are not
satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No
meticulous examination of the evidence is needed for
considering whether the case would end in conviction or
not at the stage of framing of charge or quashing of
charge.
27.4. Where the exercise of such power is absolutely
essential to prevent patent miscarriage of justice and for
correcting some grave error that might be committed by
the subordinate courts even in such cases, the High Court
should be loath to interfere, at the threshold, to throttle
the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any
of the provisions of the Code or any specific law in force
to the very initiation or institution and continuance of
such criminal proceedings, such a bar is intended to
provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a
person and the right of the complainant or prosecution to
investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be
used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared
from the record and documents annexed therewith to
predominantly give rise and constitute a "civil wrong"
with no "element of criminality" and does not satisfy the
basic ingredients of a criminal offence, the court may be
justified in quashing the charge. Even in such cases, the
court would not embark upon the critical analysis of the
evidence.
27.9. Another very significant caution that the courts
have to observe is that it cannot examine the facts,
evidence and materials on record to determine whether
there is sufficient material on the basis of which the case
would end in a conviction; the court is concerned
primarily with the allegations taken as a whole whether
they will constitute an offence and, if so, is it an abuse of
the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon
to hold a full-fledged enquiry or to appreciate evidence
collected by the investigating agencies to find out
whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and
also amount to an offence, merely because a civil claim is
maintainable, does not mean that a criminal complaint
cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228
and/or under Section 482, the Court cannot take into
consideration external materials given by an accused for
reaching the conclusion that no offence was disclosed or
that there was possibility of his acquittal. The Court has
to consider the record and documents annexed therewith
by the prosecution.
27.13. Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even
broadly satisfied, the Court should be more inclined to
permit continuation of prosecution rather than its
quashing at that initial stage. The Court is not expected to
marshal the records with a view to decide admissibility
and reliability of the documents or records but is an
opinion formed prima facie.
27.14. Where the charge-sheet, report under Section
173(2) of the Code, suffers from fundamental legal
defects, the Court may be well within its jurisdiction to
frame a charge.
27.15. Coupled with any or all of the above, where the
Court finds that it would amount to abuse of process of
the Code or that the interest of justice favours, otherwise
it may quash the charge. The power is to be exercised ex
debito justitiae i.e. to do real and substantial justice for
administration of which alone, the courts exist.
[Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1
SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949]
; Madhavrao Jiwajirao Scindia v. Sambhajirao
Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC
(Cri) 234] ; .....................]"
11. The aforementioned principles clearly show that inherent powers
while quashing criminal proceedings should be exercised very
sparingly and with circumspection. Framing of charge is an exercise
of jurisdiction by the trial Court in terms of Section 228 of Cr.P.C.,
unless the accused is discharged under Section 227 of Cr.P.C. Once
the facts and ingredients of the Section with which the accused is
charged are established, the Court would be well within its right in
presuming that there is a ground to proceed against the accused and
frame charges accordingly. The satisfaction of the Court in respect of
constituents of an offence and facts leading to that offence is a sine qua
non for exercise of such jurisdiction. This presumption is not a
„presumption of law‟ as such.
12. It is a settled provision of law that at the stage of framing of
charge, the Court is concerned with a strong suspicion that the accused
has committed an offence which, if put to trial, could prove him guilty.
The final test of guilt is not to be applied at that stage. Framing of
charge is a kind of tentative view that the trial Court forms in terms of
Section 228 of Cr.P.C. which is subject to final culmination of the
proceedings.
13. The offence of criminal conspiracy is not only a substantive
crime, it serves as a basis for holding one person liable for the crime of
others. One who enters into conspiratory relationship is liable for
every reasonable forceable crime committed by every member of the
conspiracy in furtherance of its objectives, whether or not he knew of
the crime or aided in their commission. The very agreement, concert
or league is the ingredient of the offence. All the conspirators must not
know each and every detail of the conspiracy so long as they are
conspirators not main object of the conspiracy.
14. In the present case, the basic allegations against the petitioner
are that Sumer Chand Garg (Assistant Director), Atul Vashisht (UDC),
of Slum Upgradation and Relocation (SUR), Slum & JJ Department,
MCD and officials of DD-V, MCD hatched a conspiracy with Ashok
Malhotra, Ashok Jain (petitioner) and other private persons for the
purpose of allotting the plots under resettlement scheme in the name of
fictitious/ineligible persons and in furtherance of said conspiracy
fake/forged documents such as ration cards, identity cards etc. were
prepared in the name of fictitious persons. During investigation,
pursuant to disclosure statement of the petitioner, the official records of
SUR, Slum and JJ Department, draw list and draw parchis of the plots
were recovered from house No.B-62, Nehru Vihar, Delhi which were
kept there on the directions of Ashok Malhtora. The accused persons
have been alleged to have prepared fake and forged documents with
the intention to illegally sell the said plots in an open market at
exorbitant prices in order to cause wrongful loss to the Government
and wrongful gain to themselves. The provisional identification slips
which were used as a proof of allotment and other documents, were
recovered at the instance of the petitioner. At this stage, it cannot be
said that the allegations are ex-facie perverse, untenable or malicious.
15. In view of the aforesaid discussion, there is no illegality or
infirmity in the impugned order dated 04.05.2012 by learned Special
Judge (PC Act), CBI-08, Central, Delhi. Thus, the petition fails and
the same is hereby dismissed.
Crl.M.A. No.19318/2012
The application is dismissed as infructuous.
(VED PRAKASH VAISH)
JUDGE
OCTOBER 13, 2014/gm
