Delhi District Court
Cbi vs . D.K.Sinha Etc. on 29 October, 2010
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IN THE COURT OF SH. AMAR NATH : SPECIAL JUDGE :
CBI: ROHINI COURTS : DELHI.
RC No. S 18/2006/E 0004 Dtd.. 05.01.2006
CBI VS. D.K.SINHA ETC.
CC NO. 33/08
Date of filing application : 07.12.2009
Date on which reserved for orders : 19.10.2010
Date on which order announced : 29.10.2010
ORDER ON APPLICATION UNDER SECTION 227 Cr.P.C. OF
ACCUSED NARAIN DIWAKAR.
This is an application U/s 227 of the Code of Criminal
Procedure Code moved by accused NARAIN DIWAKAR 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 the re-investigation in
order to cure the defect in the investigation. He pointed out the
following illegalities :-
1.Consent of the State is not taken as required U/s 6 of the DSPE Act, 1946.
2. Absence of Notification U/s 3 of the DSPE Act.
3. Registration of cases under Indian Penal Code instead of CBI VS. D.K.SINHA(KALA SANGAM) -2- registering it under Delhi Co-operative Societies Rules Act which is Special Act and violation of other legal provisions.
Besides this, accused Narain Diwakar raised the issue of illegal & unfair prosecution. Chargesheet is not filed as per the provisions of Sec. 173(2) of the Cr.P.C which makes the chargesheet invalid. The investigation was not carried out by competent officer as required U/s 17 of the Prevention of Corruption Act.
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. 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.
As per the allegation in the PE registration report, certain Co- operative Group Housing Societies registered with the RCS office, New Delhi during the year 1980-90 were wound up by the RCS U/s 63(2) of the Delhi Co-operative Societies Act. These societies were subsequently CBI VS. D.K.SINHA(KALA SANGAM) -3- got revived by the RCS in connivance with the officials of RCS and the private persons on the basis of forged/fake documents with the fraudulent intention to obtain land from Delhi Development Authority on concessional rates/priority basis as the original date of registration of society with the RCS office was considered as main criteria for establishing the seniority of the society for allotment of the land by the DDA. On the basis of finding of preliminary inquiry, this case was registered vide FIR RC no. SIB 2006 E0002 dated 03.01.2006 in the Economic Offence Unit-V branch, CBI, New Delhi.
I have heard the arguments on behalf of Ld. Defence counsels as well as Ld. PP at length and have carefully perused the entire charge sheet and statements of PWs recorded under Section 161 Cr.P.C. along with documentary evidence.
First bone of the contention of the accused is that the chargesheet is not filed as per provisions of 173 of Cr.P.C as it bears the signatures of Public Prosecutor apart from the signature of Superintendent of Police and the Investigating Officer. He laid a great stress that the prosecutor in the present case was a part of the investigation and had presented the charge sheet contrary to the provisions of the Code of Criminal Procedure. He heavily emphasized that per sub-section 2 of Section 173, it is the officer in charge of the police station who has to forward the chargesheet to the court of Magistrate upon completion of investigation.
Reference is made to R.Sarla Vs. T.S.Velu AIR 2000 SC 1731 (2000 CRI.L.J. 2453) where it was held that investigation and prosecution CBI VS. D.K.SINHA(KALA SANGAM) -4- are two different facets in the administration of criminal justice. The Role of the public prosecutor is inside the Court, whereas the role of investigation is outside the Court. Normally, the role of the public prosecutor commences after investigation agency presents the case in the Court on the culmination of investigation. Involving the public prosecutor in investigation is injudicious as well as pernicious in law... The Investigation Officer cannot be directed to consult the public prosecutor and submit a charge-sheet in tune with the opinion of the public prosecutor... Public Prosecutor is appointed for conducting any prosecution, appeal or proceedings in the Court. He is an officer of the Court. The public prosecutor is to deal with a different field n the administration of justice and cannot be involved in investigation."
On reading the aforesaid judgment, it makes clear that the investigating officer cannot be directed by the court to consult the Public Prosecutor and submit a charge sheet in tune with the opinion of the Public Prosecutor. The aforesaid judgment does not put a bar upon investigating officer to seek an opinion but it only clarifies that the IO is not bound by the opinion of the Public Prosecutor. Hence, the judgment cited has no relevance to the context of the case. Even otherwise, the chargesheet is filed at the end of the investigation and if the Public Prosecutor has signed the charge sheet, his act cannot be said to be an interference in the investigation as the investigation is already completed.
Next line of argument of accused Narain Diwakar is that no offence against him is made out U/s 13 of the Prevention of Corruption CBI VS. D.K.SINHA(KALA SANGAM) -5- Act as there are no allegations of demand or request of valuable things of pecuniary advantage from any of the public servant in the present case. This fact is neither shown in the chargesheet nor any of the statement of witnesses so recorded. He referred to State of M.P. Vs. Sheetal Sahai & Ors. (2009) 3 RCR (Criminal) 835 wherein while awarding the additional tender the accused persons allegedly put to loss the government to the extent of Rs.1,2,46,200/- but the Hon'ble Supreme Court held in their favour stating interalia that the said award of contract was the need of the hour and that besides the fact that accused has caused wrongful gain to the third party, Sec. 13(1)(d) of the Prevention of Corruption Act shall still not attracted as it requires that an award of the contract given by the accused was by abusing his position as a public servant.
Accused Narain Diwakar made submission contending that his case stands on a better footing than that of Sheetal Sahai. This argument of the accused Narain Diwakar does not hold good water and the same is rejected. In Sheetal Sahai's case, the Hon'ble Supreme Court after going through the facts of the case had observed that the decision of the accused was in the interest of State at the relevant time rather than against the State. In the present case, the land was sought to be allotted to the society having fictitious & non-existent members and the society had already become defunct and sought to be revived on the basis of forged and fabricated documents, using forged documents as genuine and forgery for the purpose of cheating after the gap of ten years. In this case, the accused persons were charge sheeted for the commission of offence of criminal offence, cheating, forgery for the purpose of cheating, using as a genuine forged documents and criminal CBI VS. D.K.SINHA(KALA SANGAM) -6- misconduct. The facts of Sheetal Sahai's case prima facie could not be related to the facts of the present case. Even otherwise, in such like scam cases, overall act of the official has to be kept in mind. This type cases generally fall under Sub Clause(iii) of Clause(d) of Sec. 13 of the Prevention of Corruption Act, 1988 wherein if a public servant obtains any valuable thing for any person without any public interest would be said to have committed the offence.
The decision of Apex Court in A.Subair Vs. State of Kerala is not applicable to the facts of the present case as the Hon'ble Supreme Court in this case basically decided the issue of expression "obtainment" as appearing in Section 7 of the Act and 13(1)(d) of the Prevention of Corruption Act 1988 particularly in reference to demand of bribe and acceptance of the same. The facts of the case show that the case was primarily U/s 7 of the P.C.Act for the demand of bribe and acceptance of the same, though passing reference was made to the provision of Sec.13(1)(d)of the Act. There is no dispute with regard to the propositions of law laid down by Hon'ble Supreme Court but regard must be had to the fact that in the said case the matter had gone to the Hon'ble Supreme Court after conviction when all the facts were proved /disproved during the trial. In case of obtainment, the initiative vests in the person who receives and in that context a demand will be primary requisite for an offence under Section 7 of the PC Act. This legal position was upheld by the Hon'ble Supreme Court in answer to a core question i.e. whether there is sufficient legal evidence on record to bring him the guilt of the accused under Section 13(1)(d) read with Section 13(1)(2), however, in the present case there is no question of appreciation of evidence at all as the such situation has not been arisen CBI VS. D.K.SINHA(KALA SANGAM) -7- yet because the matter is at the stage of pre-charge.
At this stage, the court has not to see the actual proof of demand being there or not, when the case built up by the prosecution under Section 13(1)(d) apart from the sections of Indian Penal Code. Prima facie, there appears to be allegations of conspiracy against the accused that he in his official capacity ignored the various statutory rules and regulations while reviving the society and recommended the allotment of the land to the DDA and had obtained pecuniary advantage for the private persons without any public interest. The court is required to be considered as to whether the public servant is acting against public interest and had obtained the pecuniary benefit even for any other person than himself like private person involved in this case.
In section 13 (1) (d), it is not necessary to prove that valuable thing or pecuniary advantage had been obtained or inducing any public servant. Section 13 (d) envisages obtaining any valuable thing to pecuniary advantage taking of any gratification "whatever". Explanation (b) of Section 7 is also relevant. The word gratification is not restricted to pecuniary gratification or to estimable in money. Moreover, allegations of malafide intention specifically applied in the charge sheet by the prosecution and the same are to be proved during the course of trial. It is true that the allegations of conspiracy may be established by adducing cogent evidence which is the subject matter of trial.
Another point raised is that DCS Act being Special Law shall CBI VS. D.K.SINHA(KALA SANGAM) -8- 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 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.
Further submission of accused Narain Diwakar 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 CBI VS. D.K.SINHA(KALA SANGAM) -9- to assist him. Section 4 of the Act 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 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 CBI VS. D.K.SINHA(KALA SANGAM)
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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 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 CBI VS. D.K.SINHA(KALA SANGAM)
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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 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 CBI VS. D.K.SINHA(KALA SANGAM)
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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 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.
Another limb of argument 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 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.
CBI VS. D.K.SINHA(KALA SANGAM)
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Next 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.
Constitution Bench of the Supreme Court comprises of Five Judges has dealt with the aforesaid proposition in State of West 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, CBI VS. D.K.SINHA(KALA SANGAM)
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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 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.
CBI VS. D.K.SINHA(KALA SANGAM)
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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 attract offences under different penal provisions and he can be charged under all such penal provisions."
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. Sanjay Vs. State 2009(109) DRJ 594.
5. Hasan Bhai Vali Bhai Qureshi Vs. State of Gujarat AIR 2004 SC CBI VS. D.K.SINHA(KALA SANGAM)
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2078.
On the other hand, it is argued by Ld. PP Dr. Padmini 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. 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.
Sanjay Vs. State & Avtar Singh Vs. State of Punjab clearly reveal CBI VS. D.K.SINHA(KALA SANGAM)
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that the same are also inapplicable in the instant case since the judgment(s) deal with cases where specific provisions for an illegal act was already available in the special act concerned.
In Hasan Bhai Vali Bhai Qureshi Vs. State of Gujarat AIR 2004 SC 2078, it was observed that Sub-Section (8) of 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted. As it is apparent from the aforesaid judgment that it is the prerogative of the prosecution to seek further investigation and not the accused. Hence, the accused cannot claim as a matter of right to seek further investigation.
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.
Similar contention has been dealt with by the Apex Court in CBI VS. D.K.SINHA(KALA SANGAM)
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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 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:
CBI VS. D.K.SINHA(KALA SANGAM)
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"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 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 CBI VS. D.K.SINHA(KALA SANGAM)
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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 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.
CBI VS. D.K.SINHA(KALA SANGAM)
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I have gone through the judgments cited by the accused. The facts and the contexts in which such judgments were delivered are entirely different than the present context, hence, the plea qua non- applicability of Indian Penal Code is misconceived. Wherever the Legislature in its wisdom deemed fit, they have restricted/prohibited the applicability of other Acts which could be seen from the provision of section 91of DCS Act, 1972 which provides "The provisions of the Companies Act, 1956 shall not apply to Co-operative Societies Act. But such restriction/prohibition is nowhere mentioned in DCS Act, 1972 which debars the applicability of IPC or PC Act under which the accused persons have been chargesheeted. 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.
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 CBI VS. D.K.SINHA(KALA SANGAM)
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and under the strict control of the CBI and that dual functioning of the CBI of 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. 1995 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.
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 CBI VS. D.K.SINHA(KALA SANGAM)
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accused cannot be permitted to raise this point before this forum.
In so far the plea of defence counsel regarding pendency of writ petition bearing no.18/2008 in the Apex Court is concerned; firstly, it has not been decided yet, secondly, no order regarding the stay of proceedings qua the present case either from the Hon'ble Apex Court or High Court has been shown or produced. Moreover, it has not been shown that in the said writ petition, if any prayer was made by the accused/applicant to stay the proceedings of this case. When, no such prayer for grant of stay of this case has been made by the accused before the Hon'ble Apex Court then, accused cannot seek the stay of the proceedings of the present case in an indirect manner. AIR 2001 Supreme Court 2856 titled Satya Narain Sharma Vs. State of Rajasthan is relied upon. Relevant portion is reproduced as under :-
"(A) Prevention of Corruption Act (49 of 1988), S. 19 - Stay of trial -
Trial of public servant for corruption charges - No stay can be granted by Court by use of any power - This is also applicable to High Court when it exercises inherent jurisdiction under S. 482. Cr.P.C."
I disagree with the contention of Ld. Defence Counsel that FIR does not disclose the complete particulars of complaint as contemplated U/s 154 Cr.P.C meaning thereby the present case is without any FIR. Instant case was registered on the basis of source information. It discloses the correct particulars versions of the complaint, FIR number and other details, hence it meets the requirement of Sec. 154 Cr.P.C. So, I do not find any illegality in the CBI VS. D.K.SINHA(KALA SANGAM)
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instant FIR.
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 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.
In the instant case, the accused in connivance with his other co-accused person passed an order of revival of Kala Sangam CGHS on the basis of fake/forged documents without ascertaining the status of the society and ignored important fact when the bench head present/appeared in 1996 when they expressed their decision to revive the society whereas D.K.Sinha fabricated proceedings anti dating i.e CBI VS. D.K.SINHA(KALA SANGAM)
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1980 and thereby misused his official position to benefit the private persons.
To prove the offence of conspiracy, it is not necessary that every accused person know the part played by other accused person in fulfilling the object.
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 by the Ld. CBI VS. D.K.SINHA(KALA SANGAM)
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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.
In view of the aforesaid discussions, the present application is devoid of any merit as the same has been moved with the sole intention to delay the progress of trial. In the result, application stands dismissed.
Announced in the open court on 29th Day of October, 2010. (Amar Nath) Spl. Judge, CBI-II Rohini Delhi CBI VS. D.K.SINHA(KALA SANGAM)