Sheela Ahuja vs Cbi
2015 Latest Caselaw 7031 Del

$~ Regular 11 to 15
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                              +        CRL.M.C. 2633/2013
                                                             Date of Decision : 17.09.2015
      AMIT RAI SOOD & ANR.                                     ..... Petitioners
                    Through                   Mr.Arvind Nigam, Sr. Adv. with
                                              Ms.Malini Sud, Adv., Ms.Shagun,
                                              Adv. & Mr.Yanish, Adv.

                              versus

      C.B.I. & ANR.                                             ..... Respondents

Through Mr.Narender Mann, Spl.P.P. with Mr.Manoj Pant, Adv. & Ms.Utkarsha Kohli, Adv. for CBI.

Mr.Shubhendu Kumar, Adv. for R-2.

                                            WITH

                              +        CRL.M.C. 2634/2013
      NEHRU PLACE HOTELS LTD.                ..... Petitioner
                   Through  Mr.Arvind Nigam, Sr. Adv. with
                            Ms.Malini Sud, Adv., Ms.Shagun,
                            Adv. & Mr.Yanish, Adv.

                              versus


      C.B.I. & ANR.                                            ..... Respondents
                              Through         Mr.Narender Mann, Spl.P.P. with
                                              Mr.Manoj Pant, Adv. & Ms.Utkarsha
                                              Kohli, Adv. for CBI.
                                              Mr.Shubhendu Kumar, Adv. for R-2.


                                             AND





                          +        CRL.M.C. 4590/2013
ROHIT KUMAR                                                     ..... Petitioner
                         Through           Mr.Rajiv Tuli, Adv. with Mr.A.
                                           Mishra, Adv.

                         versus

CENTRAL BUREAU OF INVESTIGATION & ANR. ...Respondent Through Mr.Narender Mann, Spl.P.P. with Mr.Manoj Pant, Adv. & Ms.Utkarsha Kohli, Adv. for CBI.

                                        AND

                         +        CRL.M.C. 5382/2013
SHEELA AHUJA                                                ..... Petitioner
                         Through           Mr.Gurpreet Singh, Adv.

                         versus

CBI                                                        ..... Respondent
                         Through           Mr.Narender Mann, Spl.P.P. with
                                           Mr.Manoj Pant, Adv. & Ms.Utkarsha
                                           Kohli, Adv. for CBI.

                                        AND

                         +        CRL.M.C. 5388/2013
DEVENDER KUMAR BAJAJ                  ..... Petitioner
            Through  Mr.Gurpreet Singh, Adv.

                                  versus

CBI                                                             ..... Respondent
                         Through           Mr.Narender Mann, Spl.P.P. with
                                           Mr.Manoj Pant, Adv. & Ms.Utkarsha
                                           Kohli, Adv. for CBI.





 CORAM:
HON'BLE MR. JUSTICE P.S.TEJI


P.S. TEJI, J (ORAL)

Aggrieved by the order dated 9th April, 2013 passed by the learned

CMM on the basis of the order dated 12th March, 2013 of learned Special

Judge, CBI, the present petitions under Section 482 & 483 of Code of

Criminal Procedure, 1973 have been filed for quashing of the above

mentioned both the orders. As all the petitions mentioned above are

against the same order, so are being taken together.

The factual matrix is that the petitioners (hereinafter referred to as

"accused persons") in the present cases were proceeded in pursuance of

the FIR bearing RC No.1(S)/2010/CBI/SC-III/ND under Sections 420,

120-B read with Section 420 Indian Penal Code, 1860 (IPC) and Section

13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,

1988 (PC Act) and thereafter, the investigation proceeded. On the

completion of the investigation, the investigating agency i.e. CBI filed a

charge sheet under Sections 420, 120-B read with Section 420 IPC and

Section 13(2) read with Section 13(1)(d) of the PC Act, before the

learned Judge, designated Court under the Prevention of Corruption Act,

despite refusal of the competent authority to accord sanction under

Section 19 of the P.C. Act, essential for taking cognizance under the PC

Act.

Since no sanction for prosecution of the petitioners namely

Devender Kumar Bajaj and Sheela Ahuja along with one Ashok Kumar

was accorded, the learned Special Judge vide order dated 12 th March,

2013 sent the matter to the learned Chief Metropolitan Magistrate while

observing that prima facie case under Section 120-B read with Section

420 of the IPC is made out against the accused persons. The learned

CMM vide order dated 9th April, 2013 took cognizance of the offence

under Sections 420, 120-B IPC and summoned the accused persons.

The matter came up for hearing before the learned Special Judge,

CBI and while passing the detailed order dated 12 th March, 2013, the

Court was of the view as under:-

"64. I am, therefore, of the opinion that prima facie case under Section 120-B read with Section 420 IPC is made out against all the accused persons i.e. accused no.1 M/s.Nehru Place Hotels Limited, accused no.2 Amit Rai Sood, accused no.3 Yoginder Dhawan, accused no.4 Rohit Kumar, accused no.5 Devender Kumar Bajaj, accused no.6 Sheela Ahuja and accused no.7 Ashok Kumar. However, no culpability of the Office of Minister of Transport and Power, NCT, Delhi could be made out, since in the fancy number allotment slip itself, it was mentioned that the said

allotment is meant only for non transport/non commercial category and not for commercial vehicles.

65. Since this Court is a Special Court to deal with cases pertaining to Prevention of Corruption Act, let the file be sent to the Court of Ld. CMM, New Delhi along with all the documents for proceeding further as per law."

The learned Special Judge, CBI sent the matter to the Court of

learned CMM. The learned CMM on receipt of the matter, proceeded

with the mater and passed the order dated 9th April, 2013 which reads as

under:-

"Heard and perused.

Vide the order dated 12.03.2013 Ms.Swaran Kanta Sharma, ld. Special Judge, CBI-05, PHC, New Delhi has held that there is a prima facie case under Section 120-B read with Section 420 IPC against all the accused persons.

In view of the record and the above said order, cognizance of the offences u/s 420/120-B IPC is taken.

Ld. SPP for CBI has stated that the accused persons were not arrested during investigation. The accused persons be summoned through IO Inspector Shehnaz Khan and put up for report on 17.07.2013."

The grievance of the petitioner is of two fold. Firstly, the learned

Special Judge, CBI committed error while holding that there was prima

facie case under Section 120B read with Section 420 IPC against the

accused persons and also sending the matter to the learned CMM for

further proceedings instead of returning the charge-sheet to the CBI to

present it to the Court having competent jurisdiction.

Per contra, the arguments advanced by learned counsel for CBI that

finding prima facie case under Section 120-B read with Section 420 IPC

against the accused persons was just view of the learned Special Judge,

CBI and it could not be treated as finding or holding the accused persons

prima facie guilty of the offence. The learned Special Judge was

competent and has discretion either to return the charge sheet to the

investigating agency or send it to the competent court to deal with the

matter, in view of Section 228 of the Cr.P.C.

I have heard learned counsel for the parties at length.

From the arguments advanced by the parties and the perusal of the

order, it is apparent that there was a detailed lengthy order discussing all

the facts and circumstances and while reaching to the conclusion, the

view taken by the learned Special Judge, CBI that prima facie, the

offence is made out, was not meant for taking cognizance or summoning

the accused or for framing the charge as in the preceding para, it has been

categorically held that the Court of the Special Judge, CBI was a Special

Court to deal with the case pertaining to the Prevention of Corruption Act

and the file was sent to the Court of the learned CMM, New Delhi along

with the documents to proceed in accordance with law. Apparently, the

learned CMM has not proceeded with the matter and it was just opinion

of the leaned Special Judge, CBI that offence under Section 120 B read

with Section 420 of the IPC is made out against the accused persons.

This court is further of the opinion that by returning the file to the

investigating officer or to submit before the Court of CMM having

jurisdiction or directing to send the file, was purely discretion of the court

and it does not cause any prejudice to the accused persons in the present

matter.

The second fold of the arguments advanced by Mr.Arvind Nigam,

learned senior counsel for the petitioners is that the learned CMM while

passing the order dated 9th April, 2013 has acted in a mechanical manner

and moreover, passed the order based upon the order of learned Special

Judge, CBI treating it as superior court equivalent to the Court of Session

and without expressing any reason, took the cognizance and summoned

the accused person based upon the observations made vide order dated

12th March, 2013 by the learned Special Judge, CBI. He further

vehemently argued that the learned CMM has passed the order as he had

been communicating the order of learned Special Judge, CBI and

proceeded to treat the order of the learned Special Judge as direction.

He has referred to various judgments in Pepsi Foods Ltd. and

Anr. v. Special Judicial Magistrate and Ors. 1998 CriLJ 1; Maksud

Saiyed v. State of Gujarat & Ors. (2008) 5 SCC 668 & Sunil Bharti

Mittal v. Central Bureau of Investigation (2015) 4 SCC 609.

The learned Special PP for CBI has opposed the contentions made

by the learned counsel for the petitioners.

A meticulous perusal of the order passed by the learned CMM

shows that the learned CMM has not demonstrated the material for taking

the cognizance of the offence and reason for summoning the accused

persons. This Court has gone through the judgment in the case of

Pepsi Foods Ltd. (supra). The view of the Apex Court in that case is as

under:-

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to

elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

In Mehmood Ul Rehman & Ors. v. Khazir Mohammad Tunda &

Ors., AIR2015SC2195, the Hon'ble Apex Court held thus:-

"21. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Limited (supra), to set in motion the process of criminal law against a person is a serious matter."

In view of the law laid down by the Apex Court and the material

available on this file, this Court is of the considered opinion that the

learned CMM is required to pass the specific detailed order for taking

cognizance based upon the material available before him and specify the

same and only thereafter, the accused could have been summoned.

Admittedly, the accused persons appeared before the learned CMM and

this Court exempted their personal appearance. This Court is of the

considered opinion that the learned CMM ought to have specified the

material for taking cognizance and summoning the accused after due

application of mind independently without influenced by the order passed

by the learned Special Judge, CBI which has not been demonstrated in

the present case. The order passed by the learned CMM is in mechanical

manner without dealing with the material relied upon and is not

sustainable in view of the judgments referred above.

The Court may not pass a lengthy order but it must demonstrate

that there should be gauge on the order showing application of mind. In

the case in hand, the order passed by the learned CMM not only a non-

speaking order but shows lack of application of mind and passed in a

mechanical manner.

Consequently, as per the discussion made above, this Court is of

the considered opinion that no ground is made out to set aside the order

dated 12th March, 2013 of the learned Special Judge, CBI. However, the

order passed by the learned CMM is not sustainable in the eyes of law

and deserves to be set aside.

The order dated 9th April, 2013 passed by the learned CMM is

hereby set aside and it is directed that the learned CMM shall examine

and after due application of mind independently, without being

influenced by the order dated 12th March, 2013 of learned Special Judge,

CBI, shall pass the order afresh for taking cognizance and issuance of the

summons to the accused persons, as per the observations made above.

With the above observations, the petitions are disposed of

accordingly.

(P.S.TEJI) JUDGE SEPTEMBER 17, 2015/aa/dd