Punjab-Haryana High Court
Harsh Kumar vs Central Bureau Of Investigation And ... on 16 April, 2009
Author: Rajive Bhalla
Bench: Rajive Bhalla
Crl.Misc.No.45437-M of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl.Misc.No.45437-M of 2006
Date of Decision : 16.4.2009
Harsh Kumar ....Petitioner
Vs.
Central Bureau of Investigation and others ....Respondents
CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA
Present :Mr. S.S. Narula, Advocate for the petitioner with petitioner
in person.
Mr. S.S. Sandhu, Standing counsel for C.B.I.
...
RAJIVE BHALLA, J The petitioner, prays for a large number of reliefs but in essence, relief is confined to a prayer for quashing the First Information Report registered by the Central Bureau of Investigation (for short `the C.B.I.) namely Case No. RCCHG2006A0013 dated 7.4.2006 registered under Section 120-B IPC, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988 (for short `the P.C.A.), under Section 63 of the Indian Forest Act, 1927 (for short `the IFA), under Section 19 of the Punjab Land Preservation Act, 1900( for short `the PLP) and under Section 12 of the Punjab New Capital (Periphery) Control Act, 1952.
Before proceeding to set out the arguments advanced on behalf of the petitioner, it would be appropriate to refer to the facts leading to the filing of this petition.
One Col. B.S. Sandhu(retd) and his associates set up Forest Hill Golf and Country Club in village Karoran, Distt. Ropar,a village that abuts Crl.Misc.No.45437-M of 2006 2 the city of Chandigarh. A newspaper report alleging that the club had been set up in gross and blatant violation of environmental and forest laws and orders passed by the Hon'ble Supreme Court came to be published. It was reported that forest land had been denuded of its forest cover, hillocks had been levelled, the natural course of seasonal rivulets had been diverted and trees had been uprooted with the active connivance of officials of the forest department. It was also reported that in order to curry favour with the government, a large number of bureaucrats and, politicians were granted honorary membership of the club. Alarmed by this report, a Division Bench of this court took suo moto notice of this newspaper report and the matter came to be registered as CWP No.1134 of 2004 Court of its own motion V. State of Punjab and others, and CWP No.1850 of 2004 Ranjit Singh V. Union of India and others.
Pursuant to interim orders passed in these writ petitions, the C.B.I. was directed to conduct a thorough probe into the matter. Upon consideration of the report filed by the C.,B.I. and other relevant record, it was held vide order dated 12.10.2004 that the entire land of village Karoran is forest land. The functionaries of M/s Forest Hill Resort, officials of the Forest Department, including the petitioner were severally indicted and various directions came to be issued. For the purpose of the present petition direction No.XIV directing the registration of an FIR, would require reference :-
"(viii) the Central Bureau of Investigation through its Director is directed to constitute a Special Investigation Team (SIT) to be headed by an officer not below the rank of Deputy Inspector Crl.Misc.No.45437-M of 2006 3 General, which shall hold a through probe into the question of accountability of top executive and administrative functionaries of the departments concerned of the Govt. of Punjab, some officers of the Central Govt. in relation to establishment and development of the Forest Hill Resorts at village Karoran,Tehsil Khahar, Distt.Ropar and to report as to whether any one of them indulged in taking direct or indirect gratification and/or acted in violation of the Conduct Rules, and if it finds the commission of a cognizable offence, to register a case under the appropriate provisions of the Penal Laws and hold investigation, positively within a period of six months from today;
(ix)the Special Investigation Team of the CBI shall also inquire into the report as to how much lands are actually owned by Col. B.S.Sandhu, his family members and/or the Societies/companies floated by them, whether "benami" or in their own names and as to whether or not violation of provisions of the Benami Transactions (Prohibition) Act, 1988 has taken place and to further proceed in the matter in accordance with law."
In compliance with the above direction the C.B.I. registered a first information report and commenced formal investigation. It would necessarily require mention that the Hon'ble Division Bench commented adversely upon the petitioner's conduct, as it was observed that he submitted two diametrically opposed reports with respect to the environmental devastation caused by M/s Forest Hill Resort, the first one Crl.Misc.No.45437-M of 2006 4 indicting them and the second one exonerating them. Aggrieved by these observations, the petitioner preferred R.A. No.309 of 2006 in CWP Nos.1134 of 2004 and 1850 of 2004. The order passed therein which also reproduces the observations made against the petitioner reads as follows :-
" We have heard the review petitioner in person at length and perused the record of the case. This review petition has been filed by the petitioner being aggrieved by the alleged adverse remarks passed against him in his absence. The review petitioner is aggrieved by the remarks of the Division bench contained in paragraph 42 of the judgement dated 12.10.2004. The petitioner apprehends that the observations of the Division Bench would have an adverse impact in the criminal proceedings which are pending against him. according to the review petitioner, these observations would be treated as final by the investigating authorities as well as by the Trial Court. Therefore, his fate has been sealed and he is bound to be found guilty. The petitioner also seeks to argue that the findings recorded by the Division Bench are erroneous and they are not supported by the material on record.
We have considered the submissions made by the review petitioner.
We are of the opinion that the apprehension expressed by the review petitioner is wholly unfounded. The observations made by the Division Bench in Crl.Misc.No.45437-M of 2006 5 paragraph 42 have to be read along with the observations contained in paragraph 72 of the judgement dated 12.10.2004. The observations contained in paragraphs 42 and 72 of the judgement aforesaid are as follows :-
paragraph 42:
"Coming to the two inquiry reports dated 12.12.2003 and April 16, 2003 (Annexure R-3/31 and R- 3/32 respectively) submitted by the same officer, we are surprised and shocked to find that an officer who submitted a report in the end of February, 2003 by concluding that Col. B.S.Sandhu (respondent no.1) has indulged in "breaking up of lands", "loping" and "cutting of trees" and "breaking up of mountains tops" on mass scale, which might have included roughly 300 trees/shrubs per acre, suddenly changed his views and suo-moto submitted another report on April 16, 2003 ( Annexure R-3/32) in which he almost exonerated Col.B.S.Sandhu (Respondent No.1) of the allegations which he had held to be proved true in his previous report. Hardly any reliance can be placed upon such reports. The sudden change in the stand of the inquiry officer lends support to the prima-facie inference that the entire state apparatus, as and when the occasion arose, danced to the tune of Col.B.S. Sandhu (Respondent No.1)"
Paragraph 72:
Crl.Misc.No.45437-M of 2006 6
While exercising the powers of a constitutional Court under Article 226 of the Constitution, we are aware of our limitations that a firm finding of fact can be returned only in exceptional cases. The observation, though founded upon the material on Record, remain tentative only for want of conclusive proof and at the best, can be termed as prima - facie views only. In the case in hand also, the allegations are serious, the circumstances support them, even consequences are apparent, yet the material on record is not within the degree of the conclusive proof on the basis of which a firm findings of fact can be returned. There are strong suspicions but nothing conclusive. The unvarnished truth, however, must surface in the interest of those who are accusing and/or are being accused, therefore, to reach to a logical conclusion, the investigation is inevitable."
In our opinion, the aforesaid observations made by the Division Bench in paragraph 42 and 72 of the judgement, would make it abundantly clear that the Division Bench did not express any final opinion on the matters mentioned therein. In fact the Division Bench added a cautionary word that the observations contained therein are prima-facie views only. A bare perusal of the observations contained in the aforesaid two paragraphs makes it abundantly clear that the views expressed by the Crl.Misc.No.45437-M of 2006 7 Bench were prima-facie and tentative only. No confusion could possibly be caused by such clear language. The petitioner is clearly labouring under a misapprehension. In view of the above Review petition is disposed off."
Apart from allegations relating to the recording of two diametrically opposed reports, the C.B.I alleges that the petitioner demanded illegal gratification from Rajiv Bajaj an officer with M/s Forest Hill Resort. It is also alleged that the petitioner forged the signatures of S.K. Bhatti Advocate,upon a complaint allegedly filed against M/s Forest Hill Resort. Upon conclusion of the investigation and grant of sanction to prosecute the petitioner, the C.B.I. has filed its final report before the Special Judge, CBI, Patiala.
Counsel for the petitioner submits that the petitioner has been falsely implicated and is being indicted merely because of the adverse observations made by this court. While posted as Deputy Conservator of Forests Planning and Investigation, Hoshiarpur, the petitioner was directed to conduct an enquiry by the Secretary, Department of Forests and Wild Life, Government of Punjab, vide letter dated 24.1.2003 into the Garhshankar Mining (Distt.Hoshiarpur) and violations by the Forest Hill View Resort, Tehsil Kharar, Distt. Ropar The order to conduct the enquiry was based on a complaint made by one S.K. Bhatti, Advocate, The petitioner conducted an enquiry and submitted his report dated 21.2.2003. The owner of Forest Hill View Resort, apart from submitting a copy of jamabandi did not make any formal statement. The petitioner examined the complaint in detail and clearly held that serious violations had been Crl.Misc.No.45437-M of 2006 8 committed by Forest Hill View Resort of the Forest Conservation Act, 1980 and the Punjab Land Preservation Act, 1900 etc. Upon coming to know of the petitioner's report, M/s Forest Hill Resort moved an application before the Chief Minister, Punjab, as well as to the petitioner for conduct of a fresh enquiry on the allegation that they had not been offered an opportunity of hearing in the enquiry. Pursuant to a letter dated 28.3.2003 and a telephone call by the the O.S.D. to the Chief Minister, the petitioner was asked to look into the complaint, so that justice could be done. The petitioner requested the O.S.D. to the Chief Minister to confirm his instructions in writing. The instructions were confirmed vide Diary No.1428 dated 30.4.2003 and vide No.937-38 dated 25.1.2005. The petitioner conducted a second enquiry. The second enquiry does not dilute the first enquiry, though it highlights the provisions of the Indian Forest Act, 1927 and the power of the government to alter the nature of the land. The latter observations, in the second report, are the basis for arraigning the petitioner as an accused. The respondents have failed to appraise the report in its entirety and have, therefore, drawn an erroneous inference that the second report exonerates functionaries of the Forest Hill View Resort. The conclusion drawn by the C.B.I. is based upon a misreading of the report and a lack of understanding of the provisions of the enactments that govern the land in question. It is, therefore, submitted that as the petitioner has not exonerated functionaries of M/s Forest Hill Resort, no case much less the case as set out in the FIR and the final report is made out against the petitioner. In order to support the above argument a reference is made to the second report and attention has been invited to the following findings recorded therein :-
" As I have already given observation that till the Crl.Misc.No.45437-M of 2006 9 time notification exists, the area will be bound by the regularity provisions of Land Preservation Act, 1900. The competent authority to denotify these areas from the purview of LPA 1900 is the State Govt. (Department of Forest and Wild life). Till the time Central Govt. through Supreme Court of India takes these areas out of the purview of Forest Conservation Act, 1980, the area will continue attract the provisions of FCA 1980".
It is further submitted that the allegation against the petitioner levelled by Mr.Rajiv Bajaj, Estate Manager, Forest Hill Resort that the petitioner demanded illegal gratification, to ignore violations of the F.C.A. and the P.L.P.A. and also asked for help in getting him promoted in the super time scale are patently false. It is submitted that the original affidavit allegedly filed by Rajiv Bajaj, is not available with the prosecution, as they have relied upon a photostat copy. The allegations are even otherwise preposterous as the petitioner was officially incapable of initiating any enquiry into the violations or exonerating functionaries of M/s Forest Hill Resort of any wrong doing. Rajiv Bajaj is a paid employee of M/s Forest Hill Resort and has, therefore, made allegations to discredit the petitioner's reports. It is also submitted that the petitioner filed a case for defamation against Rajiv Bajaj. In the said proceedings, Sh.Rajiv Bajaj has admitted that the petitioner did not seek any favour or demand any illegal gratification. In another suit, filed by the petitioner, Rajiv Bajaj has filed a reply reiterating these facts.
It is next submitted that the other allegation against the Crl.Misc.No.45437-M of 2006 10 petitioner is that he manipulated a complaint against M/s Forest Hill Resort by forging the signatures of Sh.S.K. Bhatti, Advocate. The said allegation is false to the knowledge of the respondents. In a case filed by the petitioner, before the Chief Judicial Magistrate, Mohali, Sh.S.K.Bhatti, has admitted by way of an affidavit, that he had filed a complaint to the Government on 28.12.2002, which was marked to the petitioner. The petitioner is sought to be primarily arraigned on the basis of observations made by the Hon'ble Division Bench, which in essence have been diluted in the order passed in the review petition. Another argument pressed into service is that no case is made out under Section 13(1)(2) and Section 13(2) of the P.C. Act. It is argued that as the FIR does not disclose any case against the petitioner, the FIR and all subsequent proceedings arising therefrom be quashed. Reliance for the arguments that this Court is empowered to quash an FIR, that does not disclose the commission of an offence is placed upon State of Haryana,Chandigarh Vs. Ch. Bhajan Lal, 1991(1) RCR (Crl.) 383, Pepsi Foods Ltd. Vs. Special Judicial Magistrate, 1998 SCC (Crl.) 1400, G.Sagar Suri V. State of U.P. - JT 2000(1) SC 360, Inder Mohan Vs. State, 2008(1) SCC (Crl.)259 and Gorige Pentaish Vs. State, 2008(4) RCR (Crl.) 171.
Counsel for the C.B.I. submits that pursuant to directions issued by a Division Bench of this Court, the C.B.I. commenced investigation. The investigation has revealed startling facts against the petitioner and his co-accused. M/s Forest Hill Resort was set up by Lt. Col. ( Retd.) B.S.Sandhu, after purchase of 406 acres 7 kanals 7 marlas of forest land in village Karoran and Majri, in his name and in the name of his family members, companies, societies etc. Pursuant to a conspiracy hatched Crl.Misc.No.45437-M of 2006 11 by Lt.Col.(Retd.) B.S. Sandhu, Rajiv Bajaj, the Estate Officer, Forest Hill Resort and with the active connivance of an official of the Forest Department,other than the petitioner, they began illegally altering the nature of the land from the year 1996 by converting forest land to non forest use i.e. into a golf course, golf club, houses, plots, water tanks, boundary walls, dam etc. They levelled the land, uprooted trees, altered the course of rivulets, made illegal excavations, levelled hillocks by using machines. A considerable portion of the land bearing forest cover was denuded of trees. Six complaints were filed against Lt.Col.(Retd.) B.S. Sandhu and his officers but were dismissed, as they were not properly pursued by the forest department. One of the accused Sh.J.S. Samundari, D.F.O. was primarily responsible for actively conspiring with Lt.Col. (Retd.) B.S. Sandhu. As regards the petitioner, it is submitted that Rajiv Bajaj, Estate Officer, Forest Hill Resort has filed an affidavit that the petitioner demanded a bribe of Rs.1.00 lac and also requested for help in a matter relating to his promotion, pending before the Chief Secretary. It is further submitted that the petitioner manipulated a complaint against Forest Hill Resort by forging the signatures of Sh.S.K. Bhatti, Advocate. This fact has been confirmed by independent forensic evidence. It is submitted that after indicting M/s Forest Hill Resort, the petitioner manufactured a communication from the O.S.D. to the Chief Minister and submitted a second report suddenly altering his earlier view thereby exonerating Lt.Col. (Retd.) B.S. Sandhu of the allegations levelled in the first report. The petitioner has, therefore, been rightly arraigned as an accused. It is further argued that the alleged statements made by Rajiv Bajaj and S.K. Bhatti, Advocate, in proceedings initiated by the petitioner have been procured so Crl.Misc.No.45437-M of 2006 12 as to discredit the investigation and even otherwise, cannot be considered at this stage.
It is further argued that as the final report has been presented and is pending consideration before the trial Court, for framing of charges, the present petition be dismissed, leaving it open to the trial Court to consider, in accordance with law, the facts pressed into service by the petitioner.
I have heard learned counsel for the parties, perused the impugned FIR and express my inability to quash the FIR or the final report. It is true that Courts, may and often do, in the exercise of their jurisdiction under Section 482 of the Code or Articles 226/227 of the Constitution, quash criminal proceedings, where the FIR or the complaint do not disclose the commission of a criminal offence or where the prosecution is malafide, vexatious, so inherently preposterous or is by its very nature an abuse of the process of law. The power of this Court to quash such proceedings is beyond debate, as is the principle that the primary adjudicatory forum to decide culpability or innocence of an accused is the trial Court. A Court exercising jurisdiction under Section 482 of the Code, would therefore, tread cautiously, while appraising an FIR and the material placed before it. It would desist in the exercise of its jurisdiction from assessing such material so as to determine, on the basis of probabilities and possibilities, the chance of conviction or acquittal. The singular principle that underlines the exercise of power under Section 482 of the Code is the interest of justice dependent upon the fact that the FIR or the complaint does not disclose the commission of any criminal offence.
As referred to in the narrative of facts and as is apparent from Crl.Misc.No.45437-M of 2006 13 the arguments advanced by counsel for the parties, that the petitioner who is a serving Indian Forest Service Officer is sought to be arraigned as an accused on various counts, namely: submitting a second report, which it is alleged exonerates M/s Forest Hill Resorts for violations of the P.L.P.A. and F.C.A. despite having indicted them in an earlier report, demand of illegal gratification from Rajiv Bajaj with a request to facilitate the petitioner's promotion as a quid pro quo for diluting the report and the filing of a complaint against M/s Forest Hill Resort by forging the signatures of Sh.S.K. Bhatti, Advocate. The petitioner who also appears in person and his counsel have primarily urged that if the two reports are read in detail, they would clearly indicate that the second report does not exonerate M/s Forest Hill Resort. Furthermore, Sh.S.K. Bhatti, Advocate has made a statement, in a case filed by the petitioner, that he did not state before the C.B.I. that his signatures were forged on the complaint. Sh.Rajiv Bajaj has filed a written statement in a suit filed by the petitioner that he had never made any complaint against the petitioner. These facts though attractive in their first blush are insufficient to quash the FIR, as they fall within the domain of the petitioner's defence and are, therefore, best left to the adjudicatory jurisdiction of the trial Court. This Court would not in the exercise of its jurisdiction under Section 482 of the Code traverse facts that would require it to appraise the reports so as to record an opinion for or against the allegations levelled against the petitioner, for otherwise it would be guilty of treading upon the jurisdiction of the trial Court. It is for the trial court to consider the report and consider whether the material is sufficient to frame charges or to discharge the petitioner. The statements made by S.K. Bhatti and Rajiv Bajaj, though made before the Court of competent Crl.Misc.No.45437-M of 2006 14 jurisdiction, are in stark contrast to their stand before the investigating agency. Their statements have been made in proceedings initiated, by the petitioner during the pendency of the investigation and during the pendency of these proceedings. Whatever be their evidentiary value and the circumstances in which these statements have been made it is a matter to be raised by the petitioner in his defence. Even otherwise, the statements do not form a part of the final report filed by the C.B.I. The last submission that observation made in the judgement of this Court, indicting the petitioner for submitting two contradictory reports have been diluted in a subsequent review petition, would make no difference to the outcome of the present petition. Though the C.B.I. has not made any reference to the order passed in the review petition, they have not merely relied upon the adverse observations against the petitioner. The allegations against the petitioner have been independently investigated and, therefore, whether the allegations against the petitioner are sufficient to charge him or not is a matter apart. I, therefore, have no hesitation in holding, after an appraisal of the FIR and the final report, that it cannot be said that no case is made out against the petitioner or that the FIR does not disclose the commission of an offence or that the allegations against the petitioner are malafide or an abuse of the process of law.
In view of what has been stated herein above, I find no reason to quash the FIR and the proceedings emanating therefrom. As a result the present petition is dismissed.
Nothing stated herein shall be construed to be an expression of opinion on the merits of the case.
16.4.2009 ( RAJIVE BHALLA )
GS JUDGE
Crl.Misc.No.45437-M of 2006 15