Delhi District Court
Cbi vs . Manish Sharma Etc. (Charge Sheet No. 1) on 19 July, 2016
Criminal Revision No.61 /15
Ashok Raj Arora
Versus
CBI CC no.4/1
RC No. 2172012 A0003/ACU-VI
CBI Vs. Manish Sharma etc. (charge sheet no. 1)
19.07.2016
Pre: Ld. Counsel for the revisionist.
Ms. Shampa Tikait, Spl. PP for CBI.
Due to heavy rush of work no time left.
Now, case be fixed for order on 29.07.2016.
(Raj Kapoor)
ASJ-03/PHC/NDD/19.07.2016
29.07.2016
Pre: Ld. Counsel for the revisionist.
Ms. Shampa Tikait, Spl. PP for CBI.
File perused, vide separate detailed order placed along side in
the file, the revision petition is dismissed. Accordingly, the revision
petition stands disposed of. Parties are directed to appear before ld.
Trial Court on 23.08.2016. Trial Court record, if any, be sent back with a
copy of the order. Revision petition/ proceedings be consigned to record
room.
(RAJ KAPOOR)
ADDITIONAL SESSIONS JUDGE-03
PATIALA HOUSE COURTS NEW DELHI
29.07.2016
1
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS
JUDGE - 03 : PATIALA HOUSE COURTS:
NEW DELHI
Criminal Revision No.61 /15
Ashok Raj Arora
Senior Scientific Officer - I,
Central Forensic Science Lab.,
New Delhi.
.......Revisionist
Versus
CBI
CC no.4/1
RC No. 2172012 A0003/ACU-VI
CBI Vs. Manish Sharma etc. (charge sheet no. 1)
........Respondent
29.07.2016
ORDER:
1. This revision petition is directed against the order dated 06.01.2015 passed by Ld. ACMM-II, PHC, New Delhi (hereafter referred as impugned order) whereby ld. Trial Court ordered to frame charge against the revisionists for the offences u/s 120-B/ 419/ 420/ 384/ 511/ 170 IPC against revisionist Ashok Raj Arora and for the offences u/s 120-B/ 419/ 420/ 384/ 511 IPC against other co-accused Ashok Kaushik in above noted case and accordingly charge was framed vide impugned order dated 06.01.2015.
2. Briefly facts of the case as per prosecution story are that revisionist along with one Parveen Kaushik (since deceased) and Manish Sharma entered into a criminal conspiracy to obtain illegal gratifications from complainant Akhilesh Chauhan. It is alleged that Akhilesh Chauhan, a Property Dealer running a company namely M/s Aarvans Infrastructure Pvt. Ltd. had certain dispute with one Sh. Satish 2 and a complaint against him was filed by Mr. Satish before the National Commission for Schedule Caste (NCSC), Delhi. In connection with the complaint Akhilesh Chauhan discussed the matter with one Neeraj Mishra who suggested to Akhilesh Chauhan that Ashok Kaushik (accused/ applicant) could help him in getting the matter settled. Akhilesh Chauhan accordingly met Ashok Kaushik who is working as Media Coordinator, All India Congress Committee who further introduced complainant Akhilesh Chauhan to one Jagjeet Singh PS to Chairman NCSC. The matter was discussed and Mr. Jagjeet told Akhilesh Chauhan that the case against him is liable to be dismissed as the allegations of Satish seemed without substance. Thereafter Ashok Kaushik requested Akhilesh Chauhan to lend him certain loan but Akhilesh Chauhan avoided the same on one pretext or the other. Ashok Kaushik in order to settle scores with Akhilesh Chauhan discussed the matter with his brother Parveen (since deceased) who in turn told him that they would see Akhilesh Chauhan with the help of CBI as he was having contacts there. Accordingly, Ashok Kaushik came in contact with Manish Sharma and gave him the details of NCSC case against Akhilesh Chauhan. Manish Sharma contacted Ashok Raj Arora (Senior Scientific Officer, CFSL) who called upon complainant Akhilesh Chauhan impersonating himself as Additional Deputy Director, CBI and threatened Akhilesh Chauhan to contact/ meet him claiming that the NCSC matter has come to him for further enquiry failing which he shall arrest him/FIR shall be registered against him. On the basis of source information preliminary 3 inquiry was registered and the mobile phones of the above persons along with one Shiv Charan (Department of Revenue, Ministry of Finance) were put under surveillance. The recorded telephonic conversations reveals the conspiracy as was hatched by Ashok Kaushik and other co-accused persons to extort money from Akhilesh Chauhan. During the course of investigation specimen voice samples of accused persons were obtained and they were sent to CFSL along with the recorded conversations and the report as received from CFSL has confirmed the voice of accused persons.
3. The material upon which the CBI is relying on consists of the recorded telephonic conversations along with the report of the CFSL regarding the voice samples and the voice in the recorded conversations and the identification of voice of Ashok Raj Arora by his colleagues/ friends, statement u/s 164 Cr.P.C. of complainant Akhilesh Chauhan as well statements of Ms. Nasreen Khan, Mohd. Zuber, Mohd. Mohsin Khan, Gufran Khan in particular. This is sufficient material to frame charges against the accused persons as at this stage the court is not to hold a mini trial and weigh the proposed evidence of the prosecution.
4. Ld. Trial Court after perusal of the case file and material available on record passed the impugned order dated 06.01.2015 observing that:-
"..................... ..................... .................... .................. ............... ....... ... For the purpose of criminal liability it is sufficient if the attempt had gone so far that the crime would have been completed but for extraneous interventions which frustrated its consummation. (State Vs. Mohd. Yakub AIR 1980 SC 1111 and 4 Om Parkash Tilak Chand AIR 1959 PUN 134). In Mohd. Yakub's case (supra) the Hon'ble Apex Court further held that a narrow interpretation of the word "attempt" therefore in these penal provisions which will impair their efficacy as instrument for combating this baneful activity has to be eschewed.
"Where a person does an act, the natural consequence of which is criminal, but such consequence is prevented by extraneous causes, he is nevertheless to be taken to have intended that the natural consequence of his act should result, that is to say, he is to be considered as having intended to commit the crime which would have resulted had he had been prevented from completing his act"
In the case at hand in view of the transcripts of the recorded conversations especially of 24.02.2011 between Manish Arora and Ashok Raj Arora wherein they are talking about the SC/ST case and that the said person has a capacity to pay 5 to 10 paise coupled with other transcripts dated 28.02.2012, 05.03.2012 etc. prima facie establishes a conspiracy to cheat/ extort money from the complainant. In furtherance of the conspiracy calls were made to Akhilesh Chauhan (complainant) regarding use of unlawful means by him to settle the SC/ST case and that complaint qua the same is pending with him and that unless he meets him (Ashok Raj Arora) a case will be registered against the complainant. More calls were made but, Akihlesh Chauhan (complainant) who by then had gathered knowledge/ information that the caller was a dubious person, stopped entertaining the calls. Hence prima facie accused Ashok Raj Arora had made all possible attempts within his means to cheat/extort money from Akhilesh Chauhan in furtherance of the conspiracy hatched by him with the other accused persons and it was only due to extraneous reasons that his attempt could not succeed. But for this purpose/intention i.e. to cheat/extort money where was the occasion/reason for Ashok Raj Arora to call the complainant. As far as the demand of money/delivery of any property is concerned that stage of conspiracy hatched by the accused persons could not be reached as the complainant realized the truth that the caller was a dubious person. Nonetheless they had taken all possible steps in that direction which prima facie was the object/purpose of their conspiracy as is evident from the transcripts of the recorded conversations highlighted in the charge sheet. As far as the submissions regarding non filing of certificate u/s 65 B of the Evidence Act regarding the voice samples that issue need not be dwelled upon this stage. It is a matter of trial and may be considered at the conclusion of trial. Moreover the CBI is relying not only on the CFSL report regarding the voice samples but also on the testimony of colleagues of Ashok Raj Arora who are conversant with his voice. Regarding section 170 IPC it is not disputed that Ashok Raj Arora was not holding the post of Additional Deputy Director, CBI. He was merely a Senior Scientific Officer, CFSL. This is sufficient for the purpose for section 170 IPC. As far as two charge sheets are concerned, section 219 and 220 Cr.P.C. takes care of the same and find no illegality or much least any irregularity. Furthermore the cases are segregated for the purpose of trial. Accordingly, charges have been framed separately against the accused persons to which they have pleaded not guilty and claimed trial. "
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Feeling aggrieved with the impugned order dt. 06.01.2015 and charge ld. counsel for the revisionist filed this revision petition.
5. Arguments were heard. During the course of arguments Ld. Counsel for the revisionist Ashok Raj Arora submitted that he had been falsely implicated in the present case and there is no material on record with regard to the extortion of money from Akhilesh Chauhan. He further submitted that no offence of attempt u/s 511 IPC is complete as money in question was requested as a loan for the marriage of his sister by mortgaging the land. It was further submitted by the revisionist that Ashok Raj Arora was working in CBI as Senior Scientific Officer, Grade
- I and submitted that the department of CFSL, CBI is under the Director of CBI. The revisionist has also submitted that the revisionist is working in CFSL lab which directly lies in the Ministry of PP and PG. He further submitted that no sanction under section 197 Cr. P.C has been received against the revisionist. He again submitted that with regard to obtaining sanction u/s 197 Cr.P.C. In respect of Ashok Raj Arora is concerned, it has been submitted that the essential requirement postulated for the sanction u/s 197 Cr.P.C. to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. There must be the direct and reasonable / rational nexus between the offence committed and the discharge of official duty. In support of his contentions, he has relied upon the following judgments:-6
I) General Officer Commanding v. CBI & Anr. Cri. Appeal no.257 of 2011, wherein it has been observed that:-
".............................. the law on the issue of sanction can be summarised to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, there must be a discernible connection between the act complained of and the powers and duties of the public servant. The act complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have reasonable connection inter-relationship or inseparably connected with discharge of his duty, he becomes entitled for protection of sanction. If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio for want of sanction. Sanction can be obtained even during the course of trial depending upon the facts of an individual case and particularly at what stage of proceedings, requirement of sanction has surfaced. The question as to whether the act complained of, is done in performance of duty or in purported performance of duty, is to be determined by the competent authority and not by the court. The Legislature has conferred "absolute power" on the statutory authority to accord sanction or withhold the same and the court has no role in this subject. In such a situation the court would not proceed without sanction of the competent statutory authority."
II) Nagraj v State of Mysore 1964 AIR 269, in this case it has also been observed that:-
"..................... The last question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government, what should be the procedure to be followed by it, i e., whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the procee- dings and pass no formal order of discharge or acquittal as contemplated in the case of a prosecution under the Code. The High Court has said that when the Sessions judge be satisfied that the facts proved bring the case within the mischief of s. 132 of the Code then he is at liberty to reject the complaint holding that it is barred by that section. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact no such order can be passed. If s. 132 applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void,, the Court having no jurisdiction to take those proceedings. When the proceedings be void, the Court is not 7 competent to pass any order except an order that the proceedings be dropped............"
III) P K Choudhary v. Commander 48, BRTF (GREF), in this case it has also been observed that:-
"........Section 197 of the Code of Criminal Procedure lays down requirements for obtaining an order of sanction from the competent authority, if in committing the offence, a public servant acted or purported to act in discharge of his official duty. As the offences under Section 166 and 167 of the Indian Penal Code have a direct nexus with commission of a criminal misconduct on the part of a public servant, indisputably an order of sanction was pre-requisite before the learned Judicial Magistrate could issue summons upon the appellant........"
IV) Anil Kumar & Ors. v. M K Aiyappa & Anr. Cri. Appl. no.1590- 1691 of 2013, in this case it has also been observed that:-
"13. Learned senior counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub- section (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra).
14. Further, this Court in Criminal Appeal No. 257 of 2011 in the case of General Officer, Commanding v. CBI and opined as follows:
"Thus, in view of the above, the law on the issue of sanction can be summarized to the effect that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him..... If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio."
15. We are of the view that the principles laid down by this Court in the above referred judgments squarely apply to the facts of the present case. We, therefore, find no error in the order passed by 8 the High Court. The appeals lack merit and are accordingly dismissed."
V) State of UP v. Paras Nath Singh 2009 (8) SCR 85, in this case it has also been observed that:-
"................So far as public servants are concerned the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The Section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. Very cognizance is barred........"
On these grounds ld. Counsel for the revisionist submitted that impugned order be set aside.
6. Contrary to it, Ld. PP for CBI submitted that in the connected CC No. 3/1 revision petition filed by Co-accused Shiv Charan against the charge has already been dismissed vide order dated 10.05.2016 by the Hon'ble High Court. Ld. PP for CBI has also filed a copy of the notification vide which the Department of Personnel of CBI has been shown under the Ministry of Home Affairs. The offences committed by accused / revisionist Shri Ashok Raj Arora (Public Servant) were not committed in discharging of his official duty. It has also been submitted that while committing the alleged offence, accused / revisionist impersonated as Additional Deputy Director, CBI, which was not part of his official duty. Hence he cannot claim the protection envisaged u/s 197 Cr.P.C. and so there is no need to obtain the sanction u/s 197 Cr.P.C., before 9 prosecuting the accused / revisionist. However, it is submitted that contentions raised by the applicant / accused person are entirely different from the facts and circumstances of this very case. On this ground ld. PP for CBI submitted that revision petition is liable to be dismissed.
7. I have given careful consideration to the submissions of ld. counsel for the revisionist Ashok Raj Arora, Sr. Scientific Officer and ld. Counsel for CBI as well. Careful perusal of the case file reveals that alleged act of revisionist Ashok Raj Arora neither falls within the discharge of his official duties nor has any reasonable nexus with the offences so committed within the four boundaries of discharge of official duties. It is well settled proposition of law that to arrive at a prima facie view for the purpose of framing of charge is exclusive domain of ld. Trial Court yet this court has limited jurisdiction to enter into the discretionary area of ld. Trial court on the grounds of propriety and correctness. In the present case, since name of the revisionist has come on record in the statement recorded u/s 164 Cr. PC and voice has also been alleged found 'probable' in the CFSL report. I have also perused the Hon'ble High Court order dated 10.05.2016, vide which the revision petition of co- accused Shiv Charan was dismissed observing that:-
".....................In view of the given facts and circumstances, I do not find any illegality or ambiguity in the order dated 06.01.2015 passed by the Trial Court and the order dated 08.04.2015 passed by the Revisional Court upholding the order of the Trial Court so as to call for interference by this court......."10
8. Further, perusal of the case file reveals that there are two charge sheets i.e. charge sheet no.1 and charge sheet no.2 in one case RC No. 2172012 A0003/ACU-VI have been filed for the offences u/s 120- B/ 419/ 420/ 384/ 511/ 170 IPC against revisionist Ashok Raj Arora and for the offences u/s 120-B/ 419/ 420/ 384/ 511 IPC against other co-accused Ashok Kaushik in charge sheet no.1 and for the offences u/s u/s 419/ 420/ 384/ 468/ 170/ 120-B IPC in charge sheet no.2. Separate two charges have been framed against each charge sheet in one case. To my view charge could have been framed head-wise but the framing of separate of charge against each charge challan do not impact the element of illegality but irregularity. In light of these facts and circumstances, I do not find any merit in the contentions of ld. Counsel for the revisionist to set aside the impugned order dated 06.01.2015. Besides, Hon'ble High Court has already dismissed the revision petition of co-accused Shiv Charan, which was filed against impugned order dated 06.01.2015, vide Hon'ble High Court order dated 10.05.2016. Thus, revision petition is dismissed. Accordingly, the revision petition stands disposed of. Parties are directed to appear before ld. Trial Court on 23.08.2016. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 29.07.2016 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI 11