Delhi High Court
Brajesh Pathak vs Central Bureau Of Investigation on 11 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 11th April, 2017
+ CRL.M.C. 1127/2015 & CRL.M.A.4159/2015
BRAJESH PATHAK ..... Petitioner
Through: Mr.Kirti Uppal, Sr. Adv. with
Mr.Sanjiv Nasiar, Mr.Amit Tiwari and
Mr.Siddhartha Chopra, Advs.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr.Nikhil Goel, Adv. with
Mr.Ashutosh Ghade and Mr.Saqib
Haroon, Advs.
CORAM:
HON'BLE MR. JUSTICE I.S.MEHTA
JUDGMENT
I.S. MEHTA, J.
1. By way of the above captioned petition, the petitioner invokes
the inherent jurisdiction of this Court under Section 482 of the Code
of Criminal Procedure, 1973 to quash the impugned summoning
order dated 20.02.2015 and all the proceedings emanating therefrom
in CC No. 01/2015 bearing RC No. 3(A)/2014/CBI/AC-III/N.D.
pending before the learned Special Judge (PC Act) (CBI)-6, Patiala
House Courts, New Delhi.
2. The brief facts stated are that, on the basis of source information
against Mr. Brajesh Pathak, the petitioner herein, who is a Member
of Parliament, representing the State of Uttar Pradesh and some
unknown persons, an FIR No. 3(A)/2014/CBI/AC-III/N.D. was
registered by the respondent, i.e. Central Bureau of Investigation
(hereinafter referred to as CBI) on 12.06.2014 under Sections 120-B,
420, 467, 468, 471 and 474 IPC and under Section 13(2) read with
Section 13(1) (d) of Prevention of Corruption Act, 1988.
3. The allegations alleged against the petitioner was that during the
period 2011 to 2013, the petitioner entered into a criminal conspiracy
with unknown private persons and claimed wrongly inflated
reimbursement for eight companion tickets amounting to
Rs.2,19,887/- from the Pay and Accounts Office, Rajya Sabha
Secretariat, New Delhi but had only paid an amount of Rs.10,499/-
for the said eight companion tickets, thereby he unduly claimed an
excess amount of Rs. 2,09,338/- from the Government of India.
4. The respondent CBI filed charge-sheet on 02.01.2015 with the
conclusion that investigation revealed commission of offences under
Sections 420, 467,468,471 and 474 IPC against Sh. Rajesh Agnihotri,
Director of M/s Vandana Air Travels Pvt. Ltd. and that no offence
has been committed by the petitioner, who was kept in column 12
therein.
5. Thereafter, an application was moved by respondent CBI
through Deputy Superintendent of Police seeking marking of the
matter to Magisterial Court of competent jurisdiction.
6. The learned Special Judge (PC Act) (CBI)-6, Patiala House
Courts, New Delhi vide order dated 20.02.2015 rejected the
application filed by the respondent CBI and took cognizance against
the petitioner herein for the offences punishable under Sections 120-
B, 420, 467, 468, 471 and 474 IPC and Section 13(2) read with
Section 13(1) (d) of the Prevention of Corruption Act, 1988 and
issued summons to the petitioner, Rajesh Agnihotri and M/s Vandana
Travels Private Limited.
7. Aggrieved by the said impugned summoning order dated
20.02.2015 and all the proceedings emanating therefrom, the
petitioner has filed the present petition.
8. The learned Senior counsel for the petitioner has submitted that
the respondent CBI registered an FIR No. 3(A)/2014/CBI/AC-III/ND
against the petitioner and in pursuance of the abovementioned FIR,
an investigation was carried out. Thereafter, charge-sheet under
Section 173 (2) Cr.P.C. was filed before the concerned Court.
9. The learned Senior counsel for the petitioner has further
submitted that the charge-sheet/closure report filed by the respondent
was rejected by the concerned Court without giving any logical basis
/conclusion and passed the impugned summoning order dated
20.02.2015 against the petitioner without giving any direction for
further investigation which is bad in law. It is further submitted that
the respondent still stands for their investigation and when there is no
evidence qua the petitioner the trial ipso facto goes and submits that
the aforesaid FIR could lead nowhere and to meet the ends of justice
the FIR be quashed. The learned Senior counsel for the petitioner has
relied upon the following judgments:-
(1) CBI v. M/s TDI International Pvt. Ltd., 219 (2015)
DLT 387.
(2) Girdhir Lal Mohta v. CBI, 2013 (4) JCC 2649.
10. On the other hand, the learned counsel for the respondent
submits that CBI stands for its closure report. The respondent further
submitted that they would be accepting whatsoever directions given
by this Court.
11. The whole question hinges around whether the learned Special
Judge could take cognizance of the offence qua the present petitioner
when there is no evidence found by the investigation authority?
12. In the instant petition, the learned Special Judge (PC Act)
(CBI)-6, Patiala House Courts, New Delhi took cognizance qua the
petitioner on 20.02.2015 on the basis of material evidence placed on
record along with the charge-sheet filed under Section 173 (2)
Cr.P.C. In the said charge-sheet the present petitioner is shown to be
in column no.12 showing not charge-sheeted.
Meaning thereby, that, during the course of investigation, no
evidence was found qua the present petitioner by the investigating
officer.
13. The learned Special Judge (PC Act) (CBI)-6, Patiala House
Courts, New Delhi took cognizance against the present petitioner for
the offences punishable under Sections 120-B, 420, 467, 468, 471
and 474 IPC and Section 13(2) read with Section 13(1) (d) of the
Prevention of Corruption Act, 1988 on the basis of the existing
evidence qua the other accused person.
14. Cognizance is always taken of an offence and not of an
offender. In the instant case, the closure report of the respondent CBI
qua the present petitioner is to be taken under Section 169 Cr.P.C.
which is reproduced hereunder:-
"169. Release of accused when evidence
deficient.- If, upon an investigation under this
Chapter, it appears to the officer in charge of the
police station that there is not sufficient evidence
or reasonable ground of suspicion to justify the
forwarding of the accused to a Magistrate, such
officer shall, if such person is in custody, release
him on his executing a bond, with or without
sureties, as such officer may direct, to appear, if
and when so required, before a Magistrate
empowered to take cognizance of the offence on a
police report, and to try the accused or commit
him for trial."
15. If the learned Trial Court finds that there is no sufficient
evidence qua the present petitioner then the learned Trial Court has
the option to exercise its judicious mind under Section 173(8) Cr.P.C.
for further investigation and collecting material evidence qua the
present petitioner. Sub-section (8) of Section 173 Cr.P.C. is
reproduced hereunder:-
"(8) Nothing in this section shall be deemed to
preclude further investigation in respect of an
offence after a report under sub- section (2) has
been forwarded to the Magistrate and, where upon
such investigation, the officer in charge of the
police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence
in the form prescribed; and the provisions of sub-
sections (2) to (6) shall, as far as may be, apply in
relation to such report or reports as they apply in
relation to a report forwarded under sub- section
(2)."
16. In the instant case the learned Trial Court instead of issuing
directions for further investigation to the respondent CBI in order to
fetch material evidence under Section 173(8) Cr.P.C. finds sufficient
material evidence for taking cognizance qua present petitioner when
the respondent CBI itself says that there is no evidence found against
the petitioner herein.
17. The Hon'ble Supreme Court in the judgment reported as Pepsi
Foods Ltd.and Anr. vs. Special Judicial Magistrate and Ors., 1998
5 SCC 749, while dealing with the summoning of an offence in a
criminal case has observed that summoning of an accused in a
criminal case is a serious matter. The criminal law cannot be set into
motion as a matter of course. The relevant paragraph of the judgment
is reproduced as under:-
"28. Summoning of an accused in a criminal cases 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. Magistrate has to carefully scrutinise the
evidence brought on record and may even himself put
question to the complainant and his witnesses to elicit
answers to 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."
18. In the instant petition, the charge-sheet filed by the respondent
CBI under Section 173 (2) Cr.P.C. shows that Mr. Rajesh Agnihotri
was the Director of M/s Vandana Airtravels Private Limited who on
behalf of the said Travel Agency sold eight tickets to Mr. Brajesh
Pathak, the petitioner herein, for a sum amounting to Rs.2,19,887/-
(Rupees Two Lakhs Nineteen Thousand Eight Hundred and Eighty
Seven Only). The Travel Allowance claim made by Mr. Brajesh
Pathak, the petitioner herein, as per the charge-sheet was prepared by
the petitioner's Private Secretary/ Private Assistant and the petitioner
had no knowledge regarding submission of forged documents as he
had only signed those documents prepared by his Private Secretary/
Private Assistant which were provided by Mr. Rajesh Agnihotri, the
Director of M/s Vandana Airtravels Private Limited. The present
petitioner thereafter on the basis of aforesaid air tickets travelled to
Delhi - Pune on 24th April, 2012.
19. As per the investigation, it has been revealed that the petitioner
and his family members had travelled on the questioned eight e-
tickets, which have been confirmed by the boarding passes and the
check-in-slips and the same were confirmed by the Investigating
Officer as per the charge-sheet. The petitioner paid the entire amount
for the said e-tickets to Mr. Rajesh Agnihotri and got the same
reimbursed from the Rajya Sabha Secretariat as per rules.
20. Admittedly, there is no dispute of claim by the Travel Agency
from the present petitioner in other words, fares printed on the e-
tickets have been paid by the present petitioner to the Travel Agency
and the same has been reimbursed by the Government to the
petitioner after scrutinizing the boarding passes.
21. It is to be noted that travelling of the present petitioner on the
basis of questioned e-tickets along with family members is confirmed
with boarding passes.
22. So far as the question pertaining to actual fare paid to Air India
is concerned:-
1) There are no documents placed on record by the respondent
CBI to show that till what date Air India sold the tickets from
its counter.
2) It is an admitted fact coming on record that tickets are sold to
general public in two ways:
a) Air India itself through counter.
b) Air India sells the ticket to Consolidator, who further
sells it to Travel Agent and the Travel Agent sells it to
the general public.
23. The details of the said 08 questioned e-tickets shown in the
impugned order dated 20.02.2015 are reproduced hereunder:-
SI. Name of the Companion Ticket No. & Fare Actual Sector
No. companion Ticket No. Class of Air Claimed Fare & Date
India Flight of for the paid
Main Ticket Compani (in Rs.)
on Ticket
(in Rs.)
1 Mr. Karthik 0983202226447 0982106137864 19,742 2289/- LKO-
Pathak Business (I) Delhi
6.3.201
2 Ms. Media 0983202442286 0982106192328 19,809/- 2370/- Delhi-
Business (I) LKO
13.3.13
3 Mast. 0983202442287 0982106192329 19,809 2370/- Delhi-
Karthik Business (I) LKO
13.3.13
4 Brajesh FFP Free Tkt 0982107706552 20,384/- 466/- LKO-
Pathak Business (I) Delhi
26.9.13
5 Mr. Kirat 0989424293759 0982103379590 23584/- 233/- Pune-
Economy (Q) Delhi
25.4.20
6 Mr. Karthik 0989425283940 0982103759023 35670/- 978/- Delhi-
Business (Z) Triputi
4.6.12
7 Ms. 0989425283931 0982103759017 35670/- 1564/- Delhi-
Sambhavi Business (Z) Triputi-
Delhi
4.6.12
5.6.12
8 Mrs. N. 0985345646954 0982100981418 45219/- 229/- Bhubne
Pathak Business (Z) shwar-
Delhi
6.6.11
Total 219887/- 10499/-
Loss 209388/-
24. India is a member of the IATA (International Air Transport
Association) and Air India is a member of IATA. IATA is the trade
association for the world's airlines, representing around 265 airlines.
The aim of the IATA is global development and regional delivery of
airlines and to develop global standards, systems and advocacy
positions. Air India is a body corporate for making operation for air
transport services i.e. sale of tickets and regulation of domestic and
the international flights.
25. In the instant petition, the respondent CBI while filing the
charge-sheet under Section 173(2) Cr.P.C. has not filed any
regulation which restricts the Travel Agency from charging higher
price for air tickets from customer.
26. It is a usual practice for Air India to sell tickets to Consolidator
and reserves few tickets for counter purposes and at the counter the
tickets are sold before the actual date of travelling and the remaining
tickets are only left with the Consolidator. The Consolidator further
sells those sold tickets to the Travel Agency/Agencies, who sells the
same at higher price as per its interests.
27. In the instant case, it is apparent on the face of the record that
there is no dispute pertaining to sale of aforesaid electronic air tickets
by M/s Vandana Airtravels Private Limited through Mr. Rajesh
Agnihotri to the petitioner herein. The petitioner on the basis of the
aforesaid air tickets utilizes its claim and travel to its each
destination. The same is confirmed by the respondent CBI in its
charge-sheet in paragraph 17 (viii), which is reproduced hereunder:-
"17. The investigation further revealed that....
viii) The check-in-slips for the questioned e-
tickets from AIR INDIA confirmed that the
passenger had travelled on the said CFS."
28. It is apparent from the charge-sheet filed by the respondent CBI
that the petitioner through his Private Secretary/ Private Assistant
submitted his e-tickets and boarding passes and on the basis of e-
tickets and boarding passes the claim amount was reimbursed by
Rajya Sabha Secretariat.
29. Nothing is emerging on the record or investigation made by the
respondent CBI that price of air tickets amounting to Rs.2,19,887/-
has not been paid by the petitioner to the Travel Agency/ there is no
any such complaint pending qua the present petitioner which
otherwise means the amount of Rs. 2,19,887/- has been paid by
petitioner to the Travel Agency. The petitioner has got reimbursed
the aforesaid amount of Rs. 2,19,887/- from the Rajya Sabha
Secretariat after depositing the air tickets and the boarding passes.
30. The whole dispute is arising out of the non-matching of the
amount of the tickets sold at the counter of Air India and the tickets
sold through Travel Agency.
31. There is nothing on the record to show on which date Air India
sold the last tickets to its customer for its destination to determine the
actual cost of the ticket. It is a general practice which has been
noticed that air tickets at counter are not available as the same has
been sold to the Consolidator long time back to avoid the risk of loss
due to the existing stiff competition among various Airlines. Once,
the tickets are sold to the Consolidator and further to the Travel
Agency, the Travel Agency further sells the tickets to customer
looking into its own business interest until and unless there is a
regulation on behalf of Government for restricting the higher price of
Travel Agency.
32. There is nothing coming on the record that there is any
domestic/Government/Air India regulation restricting the higher
price of the Travel Agency.
33. Therefore, in absence of such regulation, even if the prosecution
case taken to be gospel truth still do not constitute prima facie case
qua the present petitioner in absence of any evidence against the
petitioner in the charge-sheet filed by the respondent CBI. Reliance is
placed on the judgment of the Apex Court in the case State of
Haryana & Ors. v. Ch. Bhajan Lal & Ors., AIR (1992) SC 604,
which has laid down certain category for quashing of the
proceedings, the relevant portion is reproduced hereunder:-
"(a) where the allegations made in the First Information
Report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused;"
34. In the light of aforesaid discussions, the cognizance taken qua
the present petitioner without taking recourse under Section 173(8)
Cr.P.C. for further investigation is hereby set aside.
35. Consequently, the present petition is allowed and the impugned
summoning order dated 20.02.2015 and subsequent proceedings qua
against the petitioner in CC No. 01/2015 bearing RC No.
3(A)/2014/CBI/AC-III/N.D. pending before the learned Special
Judge (PC Act) (CBI)-6, Patiala House Courts, New Delhi are hereby
quashed to the extent of the role of the present petitioner in FIR No.
3(A)/2014/CBI/AC-III/ND.
36. Let one copy of this Judgment be sent to the concerned Court.
37. Trial Court Record be also sent back to the concerned Court
forthwith.
38. All the pending applications (if any) are disposed of
accordingly.
No order as to costs.
I.S.MEHTA, J
APRIL 11, 2017
