Delhi District Court
Cbi vs . Baljeet Singh (Satyam Sundram Cghs) on 21 August, 2010
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IN THE COURT OF SH. AMAR NATH : SPECIAL JUDGE :
CBI: ROHINI COURTS : DELHI.
RC No. EOU-I/2006/E-0005
CC NO. 41/08
CBI Vs. BALJEET SINGH (SATYAM SUNDRAM CGHS)
Date of filing application : 30.01.2009
Date on which reserved for orders : 10.08.2010
Date on which order announced : 21.08.2010
ORDER ON APPLICATION UNDER SECTION 227 Cr.P.C.
OF ACCUSED S. P. SAXENA.
This is an application U/s 227 of the Code of Criminal
Procedure Code moved by accused S.P.Saxena seeking
discharge on the ground that CBI has committed various
illegalities while conducting the investigation and prosecuting
the case. To substantiate his plea, he relied upon the judgment
of Dr. R. R. Kishore Vs. CBI Criminal Revision Petition 2006 I
AD (Delhi) 545, wherein it was held that if illegal investigation is
brought to the notice of the Trial Court at the initial stage, then
the court ought not to proceed with the trial but should direct
CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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the re-investigation in order to cure the defect in the
investigation. He pointed out the following illegalities :-
1.Absence of Sanction U/s 6 of the DSPE Act.
2. Absence of Notification U/s 3 of the DSPE Act.
3. Registration of cases under Indian Penal Code instead of registering it under Delhi Co-operative Societies Rules Act which is Special Act and violation of other legal provisions.
CBI has opposed the application by filing the separate reply stating therein that the investigation has been carried out as per the prescribed procedure under law and chargesheet has been filed based upon the evidence collected during the course of investigation and after obtaining requisite sanction from the Competent Authority to prosecute public servant, thus there is no illegality in any manner. Provisions of Section 17 of the P. C. Act have been fully complied with while conducting investigation and then prosecuting the instant case. Re- investigation is beyond the scope of Section 227 CrPC. In so far the judgment of Dr.R.R.Kishore is concerned, the same is inapplicable to the facts and circumstances of the case as in the instant case, no contravention of any legal/statutory provision was done either at the time of registration of the case or during investigation or thereafter.
CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS) -3- I have heard the arguments and accordingly perused the record. In order to better appreciation, let me examine the brief facts of the case.
Satyam Sundram Co-operative Group Housing Society ltd. was registered with the office of RCS, New Delhi on 30.12.1983 vide registration No. 1208(GH) with 62 promoter members and having its address at D-2, Pratap Nagar, Delhi-7. The society conducted its functioning in a regular manner till the year 1987, thereafter it failed to get the election and audit conducted. A show cause notice U/s 30(1) DCS was issued to conduct the election. On failure to comply with earlier show cause notices, another show cause notice U/s 30(2) of DCS Act was issued to the society as to why the Election Officer may not be appointed but the same also remained unresponded. During the year 1985 to 1989 various other letter were also written to the Society for verification of records and for approval of list of members but the society did not respond to any of the letter to the RCS office.
In order to commit conspiracy accused Kanwal Kumar Syal, Secretary of the society submitted intimation on 6.11.1989 to the RCS office regarding the change of address of the society from D-2 Pratap Nagar, Delhi to KG-1/225, Vikaspuri, New Delhi. On CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS) -4- 19.2.1991, the society submitted certain documents i.e. certified list of MC member, Photocopy of General Body Meetings Proceedings, Nomination Forms etc. Thereafter on 4.4.1991 a letter was sent to the society by the RCS office for submission of original documents, verification of list of members. The Secretary of the society submitted the list of 75 members for approval. Thereafter, the Secretary of the Society wrote various letter for approval of the list of members but the same could not be approved by the RCS office because of one reason or the other. Then the society was asked to produce the proceeding register of the society for verification of records but the society did not respond to the letter. Since the society failed to fulfill statutory requirements, it was wound up by the then RCS vide order dated 6.6.2002. Sh. R. K. Gupta, Junior Accounts Officer was appointed Liquidator of the society.
In order to commit conspiracy, after passing the order of winding up against the Society, accused Kanwal Kumar Syal Secretary of the society entered into a deal with accused S.P.Saxena through a property dealer Ashwani Vig. During the year 2003, accused S.P.Saxena purchased the records of the Society by making part payment of Rs. 2 Lacs out of Rs.4.75 Lacs. He engaged accused Ashwani Sharma and accused Naveen Kaushik to complete the records of the society for the purpose of revival and CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS) -5- thereafter got the forged/fake documents prepared by accused Naveen Kaushik, Ashwani Sharma and Baljeet Singh. Naveen Kaushik and accused Ashwani Sharma forged the signatures of various members on the documents including false resignations used for the revival of the society and approval of its fake list of members. Naveen Kaushik wrote various fake proceedings including Special General Body Meeting. The same were submitted in the RCS office by accused Naveen Kaushik. In furtherance of criminal conspiracy, accused R.B.Chauhan posted and functioning as Lower Division Clerk processed and recommended the fake list of names of members and sent to DDA and marked the file to accused AR West. He also processed an application dated 18.3.2003 purportedly signed under the signature of Ashok Kumar Chaudhay as Secretary of Satyam Sundaram CGHS Ltd with the request to stop liquidation proceedings against the society and obtained the initials of some other person as Ashok Kumar Chaudhary on the note sheet of the RCS file and he has further falsely mentioned that Ashok Kumar Chaudhary Secretary of the Society was present with Membership Register of the society including original records for verification and then he verified the records and all the enrollments of members and resignations of 30 members were found in order and also requested to revive the Society after cancellation of winding up order. On the basis of said CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS) -6- false note, the society was revived and the fake list of 75 members of the society was approved and sent to DDA for allotment of land.
In furtherance of the said criminal conspiracy, accused Sanjay Kumar posted and functioning as Statistical Investigator in the RCS office during the period 2002-2003 was appointed as Inspection officer under section 54 of DCS Act, 1972 for conducting inspection of Satyam Sundaram CGHS Ltd who submitted a false inspection report in respect of the society to the Asstt. Registrar vide his letter dated 7.7.2003 wherein he falsely mentioned that he had visited the registered address of the Society i.e. KG-1/225, Vikaspuri, New Delhi and met Sh. Ashok Kumar Chaudhary, Secretary of the Society and he also falsely mentioned that the said Secretary had produced all the records of the Society. Subsequent to the submission of the above mentioned false inspection report by Sanjay Kumar, Satyam Sundaram CGHS Ltd. was revived by accused Narayan Diwakar on 28.10.2003 by approving the fake list of 75 members of the society and the accused Narayan Diwakar, the then RCS accepted the bogus and forged documents submitted by accused Naveen Kaushik, R.B.Chauhan and Sanjay Kumar, passed the revival orders of the defunct society which had already been wound up and as a result of the revival, they also forwarded the list of members with fake membership to the DDA for CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS) -7- allotment of land. in the RCS Office.
In order to commit conspiracy, accused P.K.Thirwani posted and functioning as Sr.Auditor in the RCS office submitted a false audit reports for the period 1997-1998 to 2002-03, confirming existence and proper functioning of the Satyam Sundaram CGHS Ltd at KG01/225, Vikaspuri, New Delhi whereas the Society was not functional from the said address at that time and he fraudulently mentioned the names of Smt. Sunita Malhotra and Sh.Ashok Chaudhary as President and Secretary respectively of the society whereas they had not become even a member of the society and the signatures of both the said persons on the balance sheet, income and expenditure statement, list of member etc annexed with the Audit Reports are forged. Above mentioned documents were prepared in the office computer of accused Ashwani Sharma. GEQD, Shimla has also confirmed this fact.
Further accused Sanjeev Bharti posted and functioning as Steno, Grade III in the RCS office and was appointed as Election Officer for conducting the election of said society by accused Narayan Diwakar, the then RCS and he submitted a false election report to the Asstt. RCS vide his letter dated 31.12.2003 wherein he falsely mentioned that the meeting of the CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS) -8- Society was called on 7.12.2003 in the premises of the office of RCS, Old Court's Building, Parliament Street, New Delhi and new management committee was elected unanimously. In order to commit conspiracy, he prepared a false election proceeding dated 7.12.2003 in which 37 persons had been shown to have been present and signed the proceeding register. But, infact the signatures of most of those members had been forged by accused Naveen Kaushik. GEQD, Hyderabad opined vide their opinion no. CH 356/2006 dt 16.03.2007 that accused Naveen Kaushik and accused Ashwani Sharma forged the signatures of various members on the documents used for the revival of the society and approval of its fake list of members.
First & foremost point is raised is that DCS Act being Special Law shall prevail upon the General Law i.e. Indian Penal Code. Allegation as set out in the charge sheet are touching the business of the society furnishing false information to RCS by filing false and forged documents, thus, offence U/s 82(3) DCS Act is clearly attracted, therefore the provisions of Indian Penal Code cannot be invoked. He further contended that offence U/s 82 (3) of Delhi Cooperative Societies Act has not been notified by Delhi Government as required by Delhi Special Police Establishment Act. The allegations of giving false recommendations and filing of false CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS) -9- and forged documents in the office of Registrar of Cooperative Societies pertaining to the business of society are specifically covered U/s 82 (3) of Delhi Cooperative Societies Act but he same has not been invoked.
It is further agitated that since the matter is covered under the provisions of Sec. 82 (3) of DCS Act which completely debars the prosecution without the opportunity of being heard as well as previous sanction of RCS. It is also agitated that offence alleged to have been committed by the accused is punishable under the provisions of Special law, hence the 'provisions' of Indian penal Code being general law cannot be invoked.
He also placed reliance upon following judgments :-
1. State of Maharashtra Vs. Laljit Rajshi Shah & Ors. 2000 Supreme Court AIR PAGE 937,
2. Suresh Nanda VS. CBI Criminal Appeal no. 179/2008,
3. Greater Mumbai Co-operative Bank Ltd Vs. United yarn Textile & Ors. 2007 (5) SCALE 366,
4. Belsund Sugar Co-operative Ltd. Vs. State of Bihar (AIR 1999 Supreme Court 3125).
5. Divine Retreat Center Vs. State of Kerala SCC 2008 Scale 532
6. Hasan Bhai Vali Bhai Qureshi Vs. State of Gujarat AIR 2004 SC 2078.
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On the other hand, it is argued by Ld. PP Sh. Amrit Pal Singh for CBI that DCS Act and Rules are provisions for administration of Co-operative Group Housing Society which do not cover conspiracy to cheat, using forged documents as genuine and forgery for purpose of cheating. Hence, it cannot be said that the chargesheet filed by the CBI is barred due to enactment of Special Law. She has placed reliance upon the judgment of H. N. Risbud Vs. State of Delhi AIR 1955 Supreme Court 196, (FULL BENCH) wherein, it was held that irregularities in investigation do not go to the root of justice, so does not make the chargesheet illegal, therefore it cannot be said that cognizance taken by the court is bad in law.
The aforesaid decision delivered by Full Bench of Hon'ble Supreme Court was followed/affirmed by the Apex Court in Union of India Vs. Prakash P. Hinduja (2003) 6 SCC 195. The judgments of Suresh Nanda Vs. CBI & Greater Bombay Co- operative Bank are not applicable as different issues were involved in these cases. It is submitted that the observation of the Hon'ble Supreme Court in case of Greater Bombay Co-operative Bank Ltd was given in the limited perspective regarding the recovery of dues by co-operative Bank on the matter, whether co- operative banks come in the definition of Company or not.
CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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Whereas in the case of Suresh Nanda Vs. CBI, it was held that the Passport Act is special enactment, therefore provision of Cr.P.C do not apply.
In Divine Retreat Center, the lordships have observed that High Court should desist to direct the investigative agencies to investigate on the ambiguous and anonymous complaints of the petitioners. But regard must be had to the fact that there is nothing in the judgment that Hon'ble High Court has no power to direct any investigative agency to investigate the matter. Hence, the judgments cited by the applicant/accused are not applicable to the facts of the present case.
Ld. Defence counsel has argued that furnishing of false information to a public servant or producing forged documents in evidence are offences defined U/s 172 to 188 and Sections 193 to 196 for the prosecution of which there is bar of Section 195 Cr.P.C. CBI has filed the charge sheet U/s 420/468/471 r/w 120 B of Indian Penal Code besides the provisions of P.C.Act. Infact, it has been done to avoid the embargo of Sec. 82 (3) of the Act.
In K. Shamrao & Ors. Vs. Assistant Charity Commissioner AIR 2003 SC 1828 wherein it has been held that offence of giving CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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false information to public servant is specifically covered U/ 177 & 182 of the IPC. Registrar Co-operative Societies is public office and hence these sections are required to be invoked. However, the same have not been invoked to avoid the embargo U/s 195 (1) (a)
(i) Cr.P.C.1973.
Recently, similar contention has been dealt with by the Apex Court in the matter of State of M.P. Vs. Rameshwar & Ors. 2009 V AD(SC) 37, their Lordships were pleased to make following observations while dealing with aforesaid contention.
Mr. Tankha took us through the MP Co-
operative Societies Act, 1960, in support of his submissions. He submitted that the said Act was a complete self contained Code by itself and provided for different eventualities relating to the administration of Co-operative Societies.
While dealing with these arguments, Hon'ble Supreme Court has observed as follows:-
"Mr.Tankha's submissions, which were echoed by Mr. Jain, that the M.P.Co-operative Societies Act, 1960 was a complete Code in itself and the remedy of the prosecuting agency lay not under CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted, in view of the fact that there is no bar under the M.P.Co-operative Societies Act, 1960, to take resort to the provision of the general criminal law, particularly when charge under the Prevention of Corruption Act 1988 are invoked."
While dealing with similar contention Hon'ble Supreme Court in K. Ashoka Vs. N.L.Chandrashekar and Ors.(2009) 5 Supreme Court Cases 199 has held as follows:
"D.Cooperative Societies - Karnataka Cooperative Societies Act, 1959 (11 of 1959) - Ss. 111 and 109 - Bar to criminal proceedings, under
- Applicability - Held, there is no statutory embargo on court to take cognizance of an offence under the provision of IPC - If allegations in complaint petition or in FIR make out a case under IPC, bar under S.111 of 1959 Act is not applicable - Bar under the section applicable only for offences committed under 1959 Act - Criminal proceedings."
It is further observed in para no.23 of this authority which is as CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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follows:-
"Section 109 of the Act provides for commission of offences under the said Act. Therein, no statutory embargo has been placed for a Court to take cognizance of an offence under the provision of IPC. If the allegations made in the complaint or in the first information report make out a case under IPC, Section 111 of the Act to which our attention has been drawn, would constitute no bar for maintenance thereof being applicable only in respect of offences committed under the said Act. The said statutory interdict therefore cannot be extended in regard to commission of an offence under the other Act."
After applying the ratio of judgments of Apex Court (s), I do not find any force in the aforesaid contention of the Ld. Defence counsel that offences are liable to be tried under DCS Act only by invoking the provisions of the said Act, therefore, the matter requires to be referred for reinvestigation/fresh investigation. It needs to be noticed that there is no bar to take resort to the provision of General Criminal Laws in DCS Act also. In this case, accused persons including the applicant were chargesheeted for the CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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commission of offences of criminal conspiracy, cheating, forgery for the purpose of cheating, using as genuine a forged document and criminal misconduct. These offences are nowhere defined or dealt with in DCS Act nor did the provisions of the said Act put a bar to proceed under the IPC & PC Act, if omission and commission on the part of an accused attracts penal provisions under these Acts. Even otherwise under section 26 of the General Clauses Act, the accused could be booked for the provisions of any other Law attracted.
Further in view of State of Maharashtra Vs. Laljit Rajsi Shah & Ors. 2000 Supreme Court AIR page 937 and 'Anil Bhai M. Patel Vs. Surya Pur Bank Agent 2007 Vol. III AD (SC) 773, it is urged that the Co-operative Society Act 1972 is a complete self contained statue, so the provisions of the said Act have to followed and that the provisions of Indian Penal code cannot be adhered to. He further urged that the Delhi Co- operative Societies Act 1972, provides a well defined system of addressing the issues relating to various private co-operative societies and it contains the provisions of fine, appeal, punishment and as such the resort to the provisions of the IPC by the CBI is wholly illegal. I have gone through the judgments cited by the accused. The facts and the contexts in which such CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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judgments were delivered are entirely different than the present context, hence, the plea qua non-applicability of Indian Penal Code is misconceived. Suffice to say that the Delhi Cooperative Societies Act itself also does not impose any bar to take resort in the provisions of General Criminal Laws.
Next line of the arguments of Ld. Defence Counsel is that the Co-operative Society Act 1972 is a complete self contained statue, thus, the provisions of the Indian Penal Code cannot be adhered to. He further urged that the Delhi Co- operative Societies Act 1972, provides for a well defined system of addressing the issues relating to various private co-operative societies and it contains the provisions of fine, appeal, punishment and as such the resort to the provisions of the IPC by the CBI is wholly illegal.
I have gone through the Delhi Cooperative Societies Act, 1972. As per the preamble of the Act, it was enacted to consolidate and amend the laws relating to cooperative Societies in Union Territory of Delhi. Section 3 of the Act empower the Lt. Governor of Delhi to appoint a person to be the Registrar Cooperative Societies for Union Territory of Delhi and to appoint other persons to assist him. Section 4 of the Act CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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specifies the Societies, which may be registered under section 9 of the Act. A registration certificate shall be issued to that society by the Registrar, as provided in Section 10 of the Act. Rights and liabilities of the members of Cooperative Society are defined in Chapter-III of the Act. Chapter-IV of the Act deals with provision relating to management of a Cooperative Society. Section 32 of the Act empowers the Registrar to supersede managing committee of the society in given situations. Privileges of co-operative society are defined in Chapter-V of the Act. Provisions are made about properties and funds, which a Cooperative Society may possess, in Chapter VI of the Act. Audit enquiry, inspection and issues relating to surcharge are enacted in the provisions of Chapter VII of the Act. Settlement of disputes, touching Constitution , management or business of a Cooperative Society are to be governed under provisions of Section 60 of the Act, which can be referred to an arbitrator by the Registrar, as contemplated by Section 61 of the Act. Chapter- IX of the Act provides the procedure of winding up of the Cooperative Society, appointment of a liquidator and powers being exercised by him. Registrar is empowered to cancel registration of Cooperative Society under section 69 of the Act. Chapter-X provides for execution of awards, decrees, orders and decisions made under he Act. Section 76 enlists the order which CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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are appealable. Cooperative Tribunal is appointed by the lt. Governor under provisions of Section 78 of the Act, who has powers of hearing appeals and revision. Lt. Governor is also empowered to revise the orders, as contemplated by Section 80 of the Act.
Section 82 of the Act defines the term "offences", which provisions are reproduced below:- "82. Offences.-- (1) Any person other than a cooperative society carrying on business under any name or title of which the word "cooperative", or its equivalent in any Indian Language, is part, without the sanction of the Lt. Governor shall be punishable with fine which may extend to two hundred rupees and in the case of a continuing breach with a further fine which may extend to five hundred rupees for every day during which the breach is continued after conviction for the first such breach.
(2)Any member or past member or the nominee, heir or legal representative of a deceased member of a cooperative society who contravenes the provisions of Section 36 and 37 by disposing of any property in respect of which the society is entitled to have a first charge under that section or do any other act to the prejudice of such claim, shall be punishable with fine which may extend to five hundred rupees. (3) A cooperative society or an officer or member thereof CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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willfully making a false return or furnishing false information, or any person willfully or without any reasonable excuse disobeying any summons, requisition or lawful written order issued under he provisions of this Act or willfully not furnishing any information required from him by a person authorised in this behalf under the provisions of this Act, shall be punishable with fine which may extend to two hundred rupees.
(4) Any employer who, without sufficient cause, fails to pay to a co-operative society the amount deducted by him under section 44 within a period of fourteen days from the date on which such deduction is made shall, without prejudice to any action that may be taken against him under any law for th time being in force be punishable with fine which may extend to five hundred rupees.
(5) Any officer or custodian who willfully fails to hand over custody of books, records, cash, security and other property belonging to a co-operative society of which he is an officer or custodian, to a person entitled under section 33, 53, 54, 55 or 66 shall be punishable with fine which may extend to two hundred rupees and in the case of a continuing breach with a further fine which may extend to five hundred rupees for every during which the breach is continued after conviction CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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for the first such breach.
(6) Any person who fraudulently acquires or abets in the acquisition of any such property of which is subject to a charge under sections 36 and 37 shall be punishable with fine which may extend to two hundred rupees.
"No Court inferior to that Court of a Magistrate of first class can take cognizance of an offence, enacts the provisions of section 83 of the Act. Sub-section (2) of said section puts an embargo, wherein it is enacted that no prosecution would be instituted under this Act, without previous sanction of the Registrar and such sanction shall not be given without giving the person concerned a reasonable opportunity to represent his case.
The plain reading of the Act makes clear that the Act has been enacted by the Parliament with a view to provide for registration, management, smooth functioning, supervision and control of the Registrar over a co-operative society. Provisions are made for redressal of grievances concerning dispute touching constitution, management or business of a co-operative society. The Tribunal has been constituted to hear appeals or revision against the orders of the Registrar. Lt. Governor of Delhi is also empowered to hear appeal and revisions against the orders passed CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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by the Registrar or Tribunal as the case may be. Offences which are coined, provide for instances of deviations from the provisions of the Act. As indicated above, those abrasions are minor offences, for which prosecution can be launched before Magistrate of first class with previous sanction of the Registrar. Offences defined under the Act do not encompass human behaviour, which had been made penal under provisions of the Indian Penal Code as well as under
Prevention of Corruption Act. Suffice to say that the Delhi Co- operative Society Act itself does not impose any bar to take resort in the provision of General Criminal Laws.
Another plea of the accused is that the non-
compliance of Sec.3 of DSPE Act 1946 vitiates entire investigation. As per Sec. 3 of DSPE Act 1946 the Central Government made notification in the official gazette to specify the offences or classes of offences which are to be investigated by Delhi Special Police Establishment. It is urged that the Act confers the jurisdiction on the CBI in relation to the investigation by the Central Government U/s 3 of the Act and such offences as notified are mentioned in DSPE Act 1946. It is further urged that offences covered by the Sec. 3 of the Act do not include the offences under the Co-operative laws. Thus, the investigation done by the CBI for the co-operative societies is in violation of CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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Sec.3 as it had no jurisdiction to conduct the investigation. Offences mentioned in the charge sheet are all notified offences U/s 3 of the DSPE Act, hence no fresh notification is necessary.
Another line of argument of the accused is that investigation is bad in law for non-compliance of Sec.6 of the DSPE Act 1946. The consent of the government of the State is required to exercise the power and jurisdiction in any area in State. It is argued that there is no state within the meaning of Sec.6 of DSPE Act 1946 and as such the CBI had no jurisdiction to conduct the investigation in the absence of Sanction U/s 6 of the Act. The sanction of Delhi Government is not necessary as investigation of this case has been referred to CBI by the Hon'ble High Court of Delhi vide Civil Writ Petition no. 10066/2004 directing CBI to conduct a thorough investigation into the matter relating to 135 Co-operative Group Housing Society. Investigation has been carried out by the CBI only pursuant to the order of the Hon'ble High Court. Section 6 of the Act does not apply when the court directs CBI to conduct investigation as held in catena of judgments of Hon'ble High Courts as well as Apex Court.
Larger Bench of the Supreme Court comprises of Five Judges has dealt with the aforesaid proposition in State of West CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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Bengal & others Vs. Committee for protection of Democratic Rights 2010 III AD (SC) 45. Relevant portion is reproduced as follows:-
(B) - Delhi Special Police Establishment Act, 1946-Sec.4, 5 and 6 - Complaint along with a large number of a party workers killed - Doctrine of Separation of Powers -
Power of judicial review conferred on the High Court - Issue - Whether the High Court, in exercise of its jurisdiction under Article 226 of the constitution of India, can direct CBI to investigate a cognizable offence, which is alleged to have taken place with in the territorial jurisdiction of a State, without the consent of the State Government- HELD-Yes-Power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the poers of the Constitutional Courts with regard to the enforcement of fundamental rights-Any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure-Power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act-Being the protectors of civil liberties of the citizens, this court and CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly. Similar view has already been taken in the order dated 17.9.2007 passed by Hon'ble Mr. Justice Sh.S.N.Dhingra in Criminal MC No. 2784 of 2007 wherein his Lordship was pleased to make the following observations:-
"The investigation was referred to CBI in this case by the High Court. One investigation of a case is given by the High Court to CBI under its inherent powers, permission from State Government is not required. High Court is competent enough to refer a mater for investigation to CBI.
Investigation is done by police under Cr.P.C. There is no such thing as investigation under Delhi Cooperative Societies Act. In fact lot of bungling, corruption and registration of fake societies was found and the entire episode was investigated. Therefore, after investigation, the chargesheet had to be filed by CBI in respect of all those crimes, commission of which was revealed after investigation. It is also settled law that an act of accused may CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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attract offences under different penal provisions and he can be charged under all such penal provisions."
In Cherrian Vs. Union of India (1992) 1 SCC 397, the Hon'ble Supreme Court directed CBI to take up the investigation of particular case without directing the Sate concerned to accord consent.
The plea of Ld. Defence Counsel is that Section 63 of the Act provides winding up order may be cancelled at any time and further that as per Rule 105 of the DCS Rules, 1973, there is automatic revival of the society, if liquidation proceedings are not completed within the period of three years, though do not call for any comments but it cannot be ignored more particularly when recalling of the liquidation order(s) is based on the allegations of conspiracy.
Last plea of Ld. Defence counsel is 'unfair prosecution'. It is argued that the public prosecution appearing on behalf of CBI has no locus standi to appear as they are not validly appointed /notified as per the procedure under section 24 and 25 of the Code of Criminal Procedure. It is further argued that the prosecutors are subordinates and under the strict control of the CBI and that dual functioning of the CBI of CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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investigating as well as prosecuting agency is against the mandate of constitution as well as Code of Criminal Procedure. It is also argued that Hon'ble High Court of Delhi has admitted a Writ Petition (Criminal) No. 1038/2008 titled as Narayan Diwakar vs Union of India & CBI vide its order dated 27.3.2009. On the other hand, Ld. PP for the CBI made submission to contrary submitting that they are not under the legal control of CBI and that they are appointed by Central Govt. on the recommendation of UPSC. Hence, the very contention that they are appointed by CBI is false. Their promotions are also undertaken by a committee, though the Director (CBI) is the Chairman of the said committee but the Director (Prosecution ) is also one of its member.
I am told that prosecution has been made a separate Deptt. within the CBI after the pronouncement of judgment 'S.B.Shaney & Ors. Vs. State of Maharastra & Anr. 199 Supp. (3) SCC 37' and that the Director of prosecution is made the head of the prosecution department in the CBI. Although the general Superintendence may be with Director CBI but for all practical purposes the public prosecutors are answerable to the Director of prosecution and hence, it cannot be said that they are under the direct influence of the Director CBI.
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Needless to say that directions passed in S. B. Shawney's case ought to be followed by the concerned authorities in true spirits but so long as such directions are not fully enforced, the present set up cannot be changed by this court as neither this court has such power in its command nor it can issue any such like directions. Hence, the accused cannot be permitted to raise this point before this forum.
This case was registered and investigated by CBI pursuant of directions given by Hon'ble High Court of Delhi. Hon'ble Supreme Court and various Hon'ble High Courts have held that provisions of Section 3, 4, 5 and 6 of DSPE Act do not apply when the Hon'ble Supreme Court/High Court directs CBI to conduct investigation. I find support of my view from the following judgments; State of West Bengal Vs. Sampat Lal AIR 1985 SC 195, C A Gopalan Vs. Inspector General of Police 1993 Cr L J 1543, Maniyeri Madhwan Vs. Sub Inspector of Police, 1994 Cr L J 3063. Yashwant Vs. State of Maharashtra 1995 Cr L J 2228. Dharmistha Ben Narindera Sunh Jala Vs. State of Gujarat 1997 Cr L J 3866.
Hon'ble Supreme Court in Naresh Kavarchand Khatri Vs. State of Gujarat & Ans 2008 8 SCC 300 has held that power of the Court to interfere with an investigation is limited. The CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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Court should not interfere in the matter at the initial stage in regard thereto. The police authorities, in terms of section 156 of the Code of Criminal Procedure, exercise a Statutory Power.
Re-investigation or fresh investigation is out of the scope of Section 173 (8) of Cr.P.C. In this regard, reliance is placed on K. Chandrasekhar Vs. State of Kerala and Ors., 1998(2) RCR (Criminal) 719 : (1998(5) SCC 223). It was, inter alia, observed as follows :-
"24. The dictionary meaning of "further" (when used as an adjective) is "additional; more; supplemental". "Further" investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports - and not fresh report or reports - regarding the "further"
evidence obtained during such investigation."
CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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Further in Ramachandran Vs. R.Udhayakumar, AIR 2008 (SC) 3102 : 2008 Cr.L.J. 4309, it was held as follows"
"Criminal Procedure Code, Section 173(2) - Criminal Procedure Code, Section 173(8) - Fresh investigation, Re- investigation and further investigation - Distinction - After completion of investigation under Section 173(2) Cr.P.C., Police has right to further investigation under Section 173(8) Cr.P.C but not fresh investigation or re-investigation - Directions of the High Court for re-investigation or fresh investigation are clearly indefensible. 1998(2) RCR (Crl.) 719 (SC) relied."
Significant to mention here that accused S.P.Saxena had actively participated in the commission of offence by purchasing the records of the society on making part payment of Rs.2 Lacs out of Rs.4.75 Lacs. He engaged accused Ashwani Sharma and Naveen Kaushik to complete the record for the purpose of revival and in this manner he got the forged/fake documents prepared from the above named accused persons and Baljeet Singh. The accused Ashwani Sharma and Naveen Kaushik forged the signatures of the various members of the society including false resignation used for the revival of the society and approval of its bogus list of the members. Naveen Kaushik wrote various fake proceedings including Spl.GBM which was submitted in the RCS Office by him in furtherance of the conspiracy accused S.P.Saxena who was the part of the criminal conspiracy. The law on criminal conspiracy is very clear as on CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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today.
Hon'ble Mr. Justice Sanjiv Khanna has recently decided Writ Petition (Criminal) NO.188/2010 on 31.8.2010 wherein Law of conspiracy dealt in detail after relying upon the judgment of Hon'ble Supreme Court titled as Mohd. Amin Vs. CBI 2008 (14) Scale 240and thus, observed as follows:
"The principles which can be deduced from the abovenoted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every detail of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy."
Since the offences as per the charge-sheet were allegedly committed under the Penal Code as well as under the Prevention of Corruption Act, so it cannot be said that the investigation undertaken by the CBI was illegal. Insofar, the citations relied upon CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)
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by the Ld. Counsel is concerned, there is no dispute with regard to the proposition of law laid down therein, however, every case has its own facts and circumstances, ratio of law laid down in particular authority is to be applied according to the facts and circumstances of that particular case. Facts and circumstances of the case in hand have already been discussed in earlier part of my order which are entirely different than that the facts and circumstances of authorities cited by the Ld. Defence counsel.
It is relevant to mention here that accused S. P. Saxena is in habit to move an application one after the other. Earlier he moved application U/s 173(8) Cr.P.C by taking almost same pleas which was dismissed by passing the detailed order dated 12.07.2010.
In view of the aforesaid discussions, the present application is devoid of any merit as the same has been moved with the motivation to delay the progress of trial. In the result, application stands dismissed with costs of Rs.6000/- to be deposited with DLSA.
Announced in the open court on 21st Day of August, 2010. (Amar Nath) Spl. Judge, CBI-II Rohini Delhi CBI Vs. BALJEET SINGH(SATYAM SUNDRAM CGHS)