Delhi High Court
Sushil Arora vs Central Bureau Investigation on 16 August, 2021
Equivalent citations: AIRONLINE 2021 DEL 1397
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Delivered on 16th August, 2021
+ CRL.REV.P. 117/2021, CRL.M.A.3804/2021
SUSHIL ARORA ..... Petitioner
Through: Mr.Siddharth Luthra, Mr.Siddharth
Yadav, Senior Advocates with
Mr.Anuj Chauhan, Mr.M.N
Dudeja, Ms.Ananya De,
Mr.Anand,Mr.Abhishek Budhiraja
Mr.Aditya Mishra, Mr.Saifuddin
Shams, Mr.Krishna Datta Multani,
Mr.Akshay Kumar, Mr.Adityaa
Raju, Advocates.
versus
CENTRAL BUREAU INVESTIGATION ..... Respondent
Through: Mr.Nikhil Goel, SPP, Mr.Vinay
Mathew, Advocate for CBI.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J. (Through Video Conferencing)
1. This petition challenges the impugned order dated 28.10.2020
whereby the charge was directed to be framed against the petitioner. It
also challenges an order dated 30.01.2021 whereby the formal charges
were framed against the petitioner herein.
2. The brief facts are on 31.12.1983 the society namely M/s.Anshika
Co-operative Group Housing Society Ltd. was formed. On 27.01.1993 it
was wound up. On 19.04.1999 an application was made to revive the said
society and ultimately on 28.01.2000 it was revived. The allegations are
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LAKSHMI DOBHAL
Signing Date:23.08.2021 11:25
of conspiracy to get the society revived so as to grab the land belonging
to it.
3. It is submitted by the learned senior counsel for the petitioner the
petitioner herein has no role in the revival of the society or forgery of
documents, hence the charge must go.
4. Vide an order dated 20.05.2021 of this Court the CBI/respondent
was directed to file a reply as to if there is any other evidence, besides the
handwriting expert report against this applicant. The allegations against
the applicant are he had signed documents at point Q-16, Q-139 and Q-
140 viz. a letter and an affidavit. It is argued GEQD report, signed by an
Assistant Government Examiner, even otherwise is not per se admissible
under Section 293 Cr.P.C. The section is as under:-
"293. Reports of certain Government scientific experts.
(1) Any document purporting to be a report under the hand of a
Government scientific expert to whom this section applies, upon any
matter or thing duly submitted to him for examination or analysis and
report in the course of any proceeding under this Code, may be used as
evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as
to the subject- matter of his report.
(3) Where any such expert is summoned by a Court and he is unable to
attend personally, he may, unless the Court has expressly directed him to
appear personally, depute any responsible officer working with him to
attend the Court, if such officer is conversant with the facts of the case and
can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government scientific experts,
namely:-
(a) any Chemical Examiner or Assistant Chemical Examiner to
Government;
(b) the Chief Inspector of- Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
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(e) the Director 1 , Deputy Director or Assistant Director of a
Central Forensic Science Laboratory or a State Forensic Science
Laboratory;
(f) the Serologist to the Government."
5. It is argued the Assistant Government Examiner is not included
under sub section (4) of Section 293 Cr.P.C., hence his report is not
admissible in evidence and the CBI had rather failed to place on record
any notification to show this report would fall within the ambit of Section
293 Cr.P.C.
6. It is also the submission of the learned senior counsel for the
petitioner the witnesses viz PW-36 Amit Saxena; PW-58
Smt.Poonam.V.K.; PW-59 Murali N.Khemchandanil PW-60 Nitin Gulati
and PW-76 Sanjeev Nayyar do not provide any linkage with the
petitioner much less of any conspiracy. Their statements are read and
perused.
7. The learned senior counsel for the petitioner relied upon Sandeep
Dixit vs. State 2012 SCC Online Del 2430 which held as under:
9. Hence I am in agreement with the contention of the learned counsel for
the petitioner that the learned ASJ has gravely erred in not appreciating
the fact that the opinion of an expert under section 45 of the Indian
Evidence Act is merely an opinion and not a conclusive proof of the
validity of the handwriting in question and the learned ASJ exceeded its
jurisdiction by ordering the framing of charge against the petitioner
merely on the report of the GEQD without corroboration.
and in Rajeshbhai Muljibhai Patel and Others vs. State of Gujarat and
Another (2020) 3 SCC 794 the Court held:
"21. It is also to be pointed out that in terms of Section 45 of the Indian
Evidence Act, the opinion of handwriting expert is a relevant piece of
evidence; but it is not a conclusive evidence. It is always open to the
plaintiff-appellant No.3 to adduce appropriate evidence to disprove the
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opinion of the handwriting expert. That apart, Section 73 of the Indian
Evidence Act empowers the Court to compare the admitted and disputed
writings for the purpose of forming its own opinion. Based on the sole
opinion of the handwriting expert, the FIR ought not to have been
registered. Continuation of FIR No.I-194/2016, in our view, would amount
to abuse of the process of Court and the petition filed by the appellants
under Section 482 Crl.P.C. in Criminal Misc. Application No.2735/2017
to quash the FIR I-194/2016 is to be allowed."
and Chennadi Jalapathi Reddy vs. Badam Pratapa Reddy (Dead)
Though Legal Representatives and Another (2019) 14 SCC 2020; Abdul
Rahiman vs. State of Kerala 2014 SCC Online Kerala 23291; to further
support his argument.
8. The learned counsel also referred to Parshnath Asthana vs. State
of Gujarat 2010 SCC Online Gujarat 2247 wherein the Court held:
"19. xxxx... Even the handwriting expert's opinion is also exhibited
during the oral evidence of PW-3 and the handwriting expert is not
covered within the meaning of Sec.293 of Cr.P.C."
9. Thus it is argued by the learned senior counsel for the petitioner
the only evidence against the petitioner is an opinion evidence viz GEQD
report qua his signatures at point Q-16; Q-139 and Q-140 which would
not take the prosecution anywhere, at least not to his conviction, as is not
supported by statements under Section 161 Cr.P.C. and lastly such report
does not fall within the ambit of Section 293 Cr.P.C.
10. Heard.
11. As per the allegations the subject society was bought by co
accused Anil Arora from SP Saxena and Ashok Goswami at the rate of
Rs' 20000 per member. The same has been stated by Ashwani Vig who
had given statement under S. 164 Cr.P.C. The petitioner is the brother of
the said Anil Arora and was made a member and secretary of the society.
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Given that the members would be the beneficiaries of the scam upon
allotment of the land the fact that the brother of the petitioner had bought
the society would lend further support to the version of the prosecution
that the petitioner was part of the conspiracy and was managing the same
along with others.
12. Thereafter, in the name of the petitioner various documents and
resignations, etc. allegedly were forged, inter-alia, by co-accused
Ashwani Sharma and the same were submitted to the RCS in furtherance
of conspiracy to get the land allotted fraudulently on the basis fake and
fabricated freeze list. The fact that co-accused Ashwani Sharma had put
his signatures on many documents and was signing as Petitioner prima
facie showed collusion and conspiracy between the two and others and
whether the same was with or without the consent of the petitioner can
only be ascertained through trial.
13. There is evidence the petitioner's name is reflected in the list of
members as on 31.03.2001 submitted with the office of RCS (page-695
and 654 of D-7-Vol- III), as such he is beneficiary for the allotment of
land. The petitioner was thus made a member after the alleged fraudulent
revival of the society. His name also figures in the list of management
committee submitted with the RCS office.
14. There is evidence to the effect the petitioner is also in list of
beneficiaries for allotment of land submitted with office of RCS by
Anshika CGHS vide letter dt. 25.05.2001. (page-330 to 335 of the RCS
file D-6, Vol-II).
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LAKSHMI DOBHAL
Signing Date:23.08.2021 11:25
15. Further the order on framing of charge notes the role of the
petitioner in para nos.64 and 67, as under:
"64. Regarding role of accused Sushil Arora (A-7), ld.Sr.PP for CBI has
contended that A-7 in conspiracy with S.P. Saxena, fraudulently took over
the society and later shown elected as Secretary of Society. A-7 was
enrolled in the society after revival and took over the society from S.P
Saxena (A-6). A-7 was elected as a Secretary in the society on the basis of
fake/forged documents. A-7 made correspondence with RCS as a
Secretary and submitted the fake and forged resignation. A-7 also
enrolled new members in lieu of resignations submitted in the RCS office
after revival. A-7 signed on the photocopy of resignation, receipt of
refund, receipt of share money and other documents etc. The GEQD
opinion has confirmed that A-7 had signed letter dated 02.01.2002 vide
which he intimated to AR of the RCS office that AGM meeting of Anshika
CGHS Ltd was held on 23.09.2001 in which new management committee
had been elected and he became Secretary of the society. Ld. Sr. PP thus
submitted that A-7 became involved in the conspiracy to get allotment of
land on the basis of forged documents.
67. I find no force in the submissions of Ld. Defence Counsel. The object
of the conspiracy was not only revival of the society but also to get the
land allotted. A-7 joined the conspiracy later and he took steps in getting
the land allotted to the society which was illegally revived. As he joined
the conspiracy later on, that is why his name does not appear in para 16.8
of the chargesheet which contains facts as existed at that point of time
which was prior to revival of society. As A-7 had joined the conspiracy
later, so A-7 is also liable to be charged for conspiracy and all the acts
which were committed prior to his joining the conspiracy. The opinion of
the handwriting expert cannot be ignored at this stage. It cannot be said
that there is only opinion of handwriting expert as the material against A-
7 is brother of A-9. There is grave suspicion against A-7 as well that he
was also involved in getting allotment of land with his brother. The whole
picture will be clear only after trial."
16. Coming to the contention qua reliance upon GEQD report, per
Section 293(2) Cr.P.C. I may say even though the report may not be per
se admissible but an handwriting expert can very well be examined to
prove his report. Rather the expert report dated 16.07.2007 of the
Government Examiner itself in para 3 says:
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LAKSHMI DOBHAL
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"3. Should evidence be necessary in this case, the Opinion No. or
this letter reference be quoted in all correspondence and the
Summons be got issued in the Name of Shri Narendra Kumar,
Asstt. Govt. Examiner of Questioned Documents, Kolkata."
17. Though, Sandeep Dixit (supra) is referred to but there the expert
report was never a part of list of documents. It rather notes:-
8. xxxxx The report of handwriting expert is not included in the
list of documents which can be accepted as valid evidence without
examining the author as per the scheme of Section 293 Cr. P.C.
xxx
18. Moreso, besides conspiracy, admittedly the petitioner is also being
charged under Section 471 IPC. Now if the petitioner is discharged today
and the offence of overall conspiracy is proved later, then there would be
no reverting back to the positions, moreso where the petitioner also faces
an independent charge under Section 471 IPC against him.
19. In Ajay Aggarwal vs. Union of India AIR 1993 SC 1637 wherein
the Court held:
"..It is not necessary that all the conspirators must know each and
every detail of the conspiracy as long as they are co-participators
in the main object of the conspiracy. There may be so many
devices an techniques adopted to achieve the common goal of the
conspiracy and there may be division of performances in the chain
of actions with one object to achieve the real end of which every
collaborator must be aware and in which each one of them must be
interested. There must be unity of object or purpose but there may
be plurality of means sometimes even unknown to one another,
amongst the conspirators. In achieving the goal several offences
may be committed by some of the conspirators even unknown to
the others' The only relevant factor is that all means adopted and
illegal acts done must be and purported to be in furtherance of
the object of the conspiracy even though there may be sometimes
misfire or overshooting by some of the conspirators. "
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20. So, admittedly, society was revived and petitioner was its secretary
and a beneficiary of land and that he communicated with Registrar of
Societies, cannot be ignored at this stage. Further his signatures on the
letter dated 02.01.2002 are prima facie, established by GEQD report,
though such report can be proved later. Hence, all this is sufficient to
proceed further against him.
21. Even otherwise, the law on charge is well settled. In Asim Shariff
vs. National Investigation Agency (2019) 7 SCC 148 the Court held:
"16. Before we proceed to examine the facts of the present case, it may be
apposite to take note of the ambit and scope of the powers of the Court at
the time of considering the discharge application. This Court in Union of
India Vs. Prafulla Kumar Samal & Ors.1 had an occasion to consider the
scope of Section 227 CrPC and it held in paragraph 7 as under: "7.
Section 227 of the Code runs thus:
"If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the submissions
of the accused and the prosecution in this behalf, the Judge
considers that there is not sufficient ground for proceeding against
the accused, he 1 1979(3) SCC 4 shall discharge the accused and
record his reasons for so doing." The words "not sufficient ground
for proceeding against the accused" clearly show that the Judge is
not a mere post office to frame the charge at the behest of the
prosecution, but has to exercise his judicial mind to the facts of the
case in order to determine whether a case for trial has been made
out by the prosecution. In assessing this fact, it is not necessary for
the court to enter into the pros and cons of the matter or into a
weighing and balancing of evidence and probabilities which is
really his function after the trial starts. At the stage of Section 227,
the Judge has merely to sift the evidence in order to find out
whether or not there is sufficient ground for proceeding against
the accused. The sufficiency of ground would take within its fold
the nature of the evidence recorded by the police or the documents
produced before the court which ex facie disclose that there are
suspicious circumstances against the accused so as to frame a
charge against him."
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22. In Hardeep Singh and Ors. vs. State of Punjab and Ors. (2014) 3
SCC 92 the Supreme Court had reiterated the law with regard to the
framing of charge.
"93. However, there is a series of cases wherein this Court while
dealing with the provision of Sections 227, 228, 239, 240, 241, 242
and 245 Code of Criminal Procedure, has consistently held that
the court at the stage of framing of the charge has to apply its mind
to the question whether or not there is any ground for presuming
the commission of an offence by the accused. The court has to see
as to whether the material brought on record reasonably connect
the accused with the offence. Nothing more is required to be
enquired into. While dealing with the aforesaid provisions, the test
of prima facie case is to be applied. The Court has to find out
whether the materials offered by the prosecution to be adduced as
evidence are sufficient for the court to proceed against the accused
further."
23. Lastly I may say earlier also an order on charge was passed by
learned Trial Court per order dated 10.05.2013, however, before the
formal charge could be framed, it was revealed to the learned Trial Court
the matter has already been stayed by the Hon'ble Supreme Court, hence
such order was treated as non-est. However, per order dated 26.04.2018
the stay was vacated by the Supreme Court and thus the impugned order
is passed. Admittedly, order dated 10.05.2013 was never challenged.
24. Thus the petition being devoid of merits is dismissed. Pending
application, if any, also stands disposed of.
25. Nothing opined above shall be treated as an observation on merits
of case on either side.
YOGESH KHANNA, J.
AUGUST 16, 2021 DU CRL.REV.P. 117/2021 Page 9 of 9 Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:23.08.2021 11:25