Delhi High Court
Dharambir Khattar vs Central Bureau Of Investigation on 16 May, 2017
$7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 16th May, 2017
+ CRL.A. 117/2007 and Crl. M.A. 2006/2007
DHARAMBIR KHATTAR ..... Appellant
Through: Mr. Abhijat, Mr. Madhu Sudan
Bhayana, Ms. Jeewan Chandna, Mr. N.
Parikshith, Ms. Madhu Shah, Advocates
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Nikhil Goel, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The appellant is an accused (second accused to be precise) in a
criminal case, which is stated to be pending on the file of the Special
Judge (Prevention of Corruption Act) on the basis of a report under
Section 173 of the Code of Criminal Procedure, 1973 (Cr. PC)
submitted by the respondent / Central Bureau of Investigation (CBI)
on conclusion of investigation into the case registered as RC
25(A)/03/CBI/ACB / New Delhi. By order dated 05.02.2007 on the
file of the said criminal case CC No.25/5, the learned Special Judge
directed, inter alia, a complaint to be made over to the court of the
Additional Chief Metropolitan Magistrate (ACMM), New Delhi,
against the backdrop of facts which were set out in the said
proceedings. The said order being in the nature of an order under
Section 340 Cr. PC, on the request of the CBI for such action to be
initiated, the appellant has approached this court by the appeal at hand
under Section 341 Cr. PC.
2. Arguments of the learned counsel for the appellant and the
respondent have been heard. Record has been perused.
3. The background facts lie in a very narrow compass. The
criminal case in which the appellant was an accused was listed before
the Special Judge on 26.05.2006. An application for exemption from
personal appearance on his behalf came to be moved by his counsel on
the grounds that he had been advised rest on account of certain
medical condition, this claim being supported, inter alia, by copies of
medical certificates annexed with the said application, they including
OPD slip of Cardiothoracic & Neurosciences Centre of All India
Institute of Medical Sciences, New Delhi (AIIMS) purportedly against
OPD no.9257 dated 28.02.2006. The copy of the said slip submitted
with the application would indicate the first visit of the appellant as a
patient in the OPD of AIIMS on 28.02.2006 followed by certain other
visits including of 02.03.2006 and 04.05.2006.
4. The learned special Judge by order passed on the said date, inter
alia, directed the public prosecutor representing the CBI to "verify the
physical condition of the accused and submit verification report in
terms of annexures of the medical record of the applicant". The
exemption from personal appearance for the said date was, however,
allowed.
5. It appears that the CBI approached the hospital administration
and, thereafter, submitted a report indicating the document in question
to be forged and fabricated for the reason the OPD records would not
show any such visits on the said dates.
6. It is against this backdrop that the CBI moved the application
under Section 340 Cr. PC seeking action to be initiated. The relevant
portion of the impugned order reads thus :-
"This document had been produced in the court pursuant
to the query sent by S.P., CBI on the two prescription slips
dated 28.01.06 and 28.02.06 of the AIIMS which had been
appended by applicant Dharambir Khattar alongwith his
personal exemption application dated 26.05.06.
In view of this prima facie finding which has been given by
the Administrative Officer, AIIMS Hospital, in my view, it is
expedient in the interest of justice, that an inquiry should
be made into the offence prima facie sought to have been
committed by the accused Dharambir Khattar by producing
false evidence in relation to the proceedings before t his
court and he is prima facie liable under the provisions of
Section 193 of the IPC. Ordered accordingly.
A copy of this order alongwith the complaint of this court
be sent to ld. ACMM, New Delhi to deal with the complaint
in accordance with law.
Let the complaint (alongwith list of documents and list of
witnesses) be put up before ld. ACMM, New Delhi on
07.02.07 at 2. p.m."
7. Though in the appeal, certain other contentions were also urged,
including by reliance on the view taken by the Supreme Court in Iqbal
Singh Marwah and Anr. Vs. Meenakshi Marwah and Anr., AIR 2005
SC 2119 to the effect that the provision of Section 195 Cr. PC is
attracted only if the document is in custodia legis, in the opinion of
this court, the impugned order cannot be upheld primarily for the
reason that there has been no inquiry held within the meaning of the
expression used in Section 340 Cr. PC. As would be seen from the
several paragraphs of the impugned order extracted above, "the prima
facie finding" referred to by the special judge is of the administrative
officer, AIIMS rather than of the court. The learned Special Judge
seems to have contradicted herself by saying on one hand that it was
expedient in the interest of justice that an enquiry should be made into
the offence and immediately thereafter directing a complaint to be
made over to the court of the Magistrate for offence under Section 193
IPC.
8. Given the nature of record presented before this court, it is clear
that no inquiry worth the name within the meaning of Section 340 Cr.
PC was ever held. In this view, the directions in the impugned order
for a complaint to be lodged under Section 195 Cr. PC cannot be
upheld. The order to that extent is set aside.
9. It is, however, made clear that this result of the appeal will not
come in the way of the special court holding a proper inquiry in
accordance with law on the application under Section 340 Cr. PC.
10. The appeal and the accompanying application stand disposed of
in above terms.
11. The trial court record shall be returned forthwith.
R.K.GAUBA, J.
MAY 16, 2017/yg
